National criminal justice systems need strengthening, says top international law expert

At the end of this month, hundreds of ministers, senior representatives from governments and NGOs will descend on Uganda’s capital, Kampala, for the first ever review conference of the Rome Statute – the historic treaty which catapulted the International Criminal Court (ICC) into being after it was ratified by 60 countries in 2002.

Eight years on, and the number of countries which have signed up to the statute has climbed to an impressive 111 states, amounting to over half of the world’s nations, with Bangladesh the most recent to ratify. The Court – the first permanent treaty-based international criminal court – was established to prosecute perpetrators of crimes against humanity, war crimes and genocide. Its jurisdiction and how it operates are governed by the Rome Statute.

Young system

In an interview with Commonwealth News, David Tolbert, the newly appointed President of the International Center for Transitional Justice (ICTJ), said that despite well over half the United Nations’ member countries now having signed up to the statute, the international criminal justice system is still in its infancy.

He explained that the first such court to emerge in this system was the International Criminal Tribunal for the former Yugoslavia, “which only really started conducting effective trials and had a substantial number of detainees in the latter part of the 1990s.”

Mr Tolbert, a former UN Assistant Secretary-General and Deputy Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), added that “the idea that the international criminal justice system will be like the common law system in the UK and other European countries at the snap of a finger is a misperception that needs to be addressed.”

Looking back, Mr Tolbert thinks it is an “amazing achievement” for so many countries to have ratified in such a short period of time, admitting that he thought it would take a lot longer.

More countries need to ratify

But reflecting on the future, Mr Tolbert said that he would like to see more and more countries ratifying, although he recognises the significant obstacles some face.

One such hurdle for the USA, he points out, is that “for the statute to be adopted it would take two-thirds of the United States senate”.

The USA is one of three permanent members of the UN Security Council, along with China and Russia, which have failed to ratify. “Not to have three of the permanent five [ratifying the statute] is a big perception issue, particularly since the Security Council can refer cases to the Court.”

Mr Tolbert did, however, note that under President Barack Obama’s administration, the USA has returned to discussions, and will have a presence at Kampala “which is a positive sign”.

Speaking ahead of the ICC Kampala Review Conference, where he is chairing a discussion on ‘peace versus justice’, Mr Tolbert looked at what some of the key discussions will focus on.

Stocktaking exercise

He expressed a desire that “there is a lot of focus on the stocktaking exercise” – that is assessing the impact the Rome Statute has had in the last decade, including issues of complementarity, victims, peace versus justice, and international co-operation.

Complementarity essentially reflects the primacy of the ICC complementing national jurisdictions, thus the ICC does not have jurisdiction to prosecute crimes where a country is willing and able to undertake prosecutions. So-called ‘positive complementarity’ is the idea that in order for the notion of complementarity to function properly in order to close the impunity gap, national systems must be strengthened so they can handle complex prosecutions of Rome Statute crimes.

“This is the key issue for the ICC,” said Mr Tolbert. “Because at the end of the day, the ICC will make a relatively small number of prosecutions, which means there is a need to strengthen domestic prosecutorial and criminal justice capacity. So how the complementarity principle is strengthened, how it develops and what the Court’s role is, needs a lot of study and discussion.”

Discussions concerning victims will look back at the Court’s handling of victims, what their participation involves and the reparations they receive. “In some ways, victims are the constituents of the court, and how it deals with them is essential.”

The third of these issues – peace versus justice – refers to how a court acts in a situation where there is continued violence. Mr Tolbert’s view is that while short-term tensions between justice and mediation efforts in a country will arise, they can be managed; moreover, “the longer term situation is quite clear in that a society cannot move out of a post-conflict situation and into a situation of peace without truthfully confronting the past.”

Meetings at the conference will also focus on seeking to agree a definition for the Crime of Aggression, and the conditions for the exercise of jurisdiction under the Rome Statute. The Coalition for the International Criminal Court – an international NGO made up of 2,500 organisations which aims to strengthen international co-operation with the ICC and ensure that the Court is fair, effective and independent – has come up with a working definition for an act of aggression: “the use of armed force by one State against another State without the justification of self-defence or without authorization by the Security Council.”

Mr Tolbert’s concern with this issue is that “the Court is in a fragile and evolving state and we need to make sure that it does its work well and properly. I hope the aggression discussion doesn’t take the Court in a direction that makes its work more difficult.”

In all of these areas of the stocktaking exercise, Mr Tolbert believes “the ICTJ can bring particular expertise and we’re looking forward to engaging in deep and important discussions in this regard.”

Potential partnership

These reflections from Mr Tolbert were made during a visit to Marlborough House – the Commonwealth’s headquarters in London – on 10 May 2010. As well as meeting senior figures from the Commonwealth Secretariat’s legal, political and human rights teams, Mr Tolbert also spoke with Commonwealth Secretary-General Kamalesh Sharma. The pair discussed areas of potential future collaboration between the ICTJ and the Secretariat.

Mr Tolbert noted that both organisations were seen as “trusted partners” by countries, and because of their “tremendous credibility ... there is a natural partnership, which may emerge.”

The Secretariat’s chief legal adviser, Akbar Khan, who has been invited to speak on International Co-operation, one of the key stocktaking panels at the Kampala conference, said he looked forward to further exploring strategic areas of interest where the two organisations could come together to promote the rule of law in Commonwealth countries.

“One particular area which stands out is strengthening national justice systems,” Mr Khan said. “By channelling our joint efforts into this urgent and important area of work we can more effectively close the impunity gap by supporting national jurisdictions to prosecute Rome Statute crimes at the national level so that the ICC can be properly used in the manner the Rome Statute originally envisaged – that of a court of last resort.”

Video: Interview with David Tolbert