International law specialist untangles complex web of issues surrounding ‘the court of last resort’

Earlier this month more than 2,000 delegates from all over the world spilled into Uganda’s capital, Kampala, to review progress made by the International Criminal Court (ICC).

This conference was the first major review conducted since the Court emerged on the international scene eight years ago.

One of the keynote speakers was Akbar Khan, an international law specialist and the Director of Legal and Constitutional Affairs at the Commonwealth Secretariat.

Speaking to Commonwealth News at the end of the conference, Mr Khan explained some of the most important legal terms and issues associated with international law and the ICC.

What is the International Criminal Court?

It is the first permanent treaty-based international criminal court, established to prosecute perpetrators of crimes against humanity, war crimes, genocide and the Crime of Aggression. The Review Conference agreed the definition for the Crime of Aggression and the conditions for the exercise of the Court’s jurisdiction over this leadership crime. The Court’s jurisdiction and how it operates are governed by the Rome Statute, the founding document of the ICC, which came into force on 17 July 2002 after it was ratified by 60 countries.

Is the court biased against African countries?

No. Some argue that the ICC is biased because the five official investigations it has taken on so far are based in the Central African Republic, the Democratic Republic of Congo, Sudan, Uganda and, most recently, Kenya. However, three of these situations were referred to the Prosecutor directly by the governments involved; the fourth situation, Darfur, was referred by the United Nations Security Council; and the fifth and last situation, Kenya, was initiated by the Prosecutor’s with the support of the Kenyan Government.

Can peace be achieved in a country where there is no justice?

This was one of the big debates at the conference. In the past this discussion was referred to as ‘peace versus justice’. This phrase refers to the discussion over whether or not sustainable peace can only be achieved in a country where there is accountability. While some have argued that this is fundamental, others have said that peace is the most important thing, and justice can come later in a country.

Discussions between these two camps have gone on for years without much movement, but by the end of the conference the debate had shifted forward. It is now recognised that peace and justice are mutually compatible and go hand in hand, as sustainable peace cannot exist without justice.

Following this agreement the debate moved on to what is called ‘sequencing’. This refers to the idea that peace should be given priority to take hold in a country, before justice through prosecutions or other non-judicial mechanisms are introduced. This might apply, for example, in a post-conflict situation, where it is important that prosecutions for war crimes are deferred while peace is still fragile and needs more time to properly establish itself. In such circumstances the use of article 16 of the Rome Statute might be seen as appropriate. Then, as soon as a sustainable peace has been achieved, prosecutions can begin.

History has shown that victims yearn for accountability and that a forced peace without justice is not sustainable in the long term, with many societies reverting to instability. Countries which have gone through post-conflict transition without justice, such as Cambodia, are now seeking justice through prosecutions in order that victims can finally have some degree of closure.

Where did the debate focus over strengthening national justice systems?

There were some at the conference who felt the ICC itself should be doing more to develop the capacity of countries to prosecute crimes at the national level. Others argued that it is a waste of the Court’s resources and that this work should continue being done by organisations better placed to build and promote the rule of law nationally, such as the Commonwealth Secretariat, on the basis that the ICC is a judicial body and not a development organisation.

One of the buzzwords associated with this theme is ‘complementarity’. It refers to the idea that the ICC was set up to act as a ‘court of last resort’ in order to complement the work of national jurisdictions. Therefore, the ICC does not have jurisdiction to prosecute crimes where a country is willing and able to undertake prosecutions. The phrase ‘positive complementarity’ is often used to describe the idea of strengthening national jurisdictions so they can cope with the bulk of crimes, leaving the ICC to function in the way it was intended, that of only prosecuting crimes that can’t be tried at a national level. Sadly, at the present time, too many countries don’t have strong enough domestic capacity, so unnecessary cases are being passed on to the ICC, giving it an unfeasible workload to process.

What are the next steps for the ICC?

One of the biggest problems the ICC faces is ignorance. The single biggest role states have to play in the next few years is to go out and make it clear that the ICC is a force for good.

But for the ICC to function at its best it also needs the rest of the world to get on board. So far, 112 countries have ratified the Rome Statute. That is a remarkable achievement in such a short period of time. But there are still some notable absences, including China, India, Russia and the USA.

In 1986, when I was studying International Law we lived in an era of impunity for political and military leaders who committed the worst atrocities known to mankind. Today that is no longer the case, with examples of the former leader of Liberia, Charles Taylor, and former President of the former Yugoslavia, Slobodan Milosovic, having faced prosecutions. I would echo the statement made by UN Secretary-General Ban Ki-moon at the Kampala Conference: “The era of impunity is over. We are witnessing the birth of a new age of accountability.” International law has come a long way in the last 20 years. But it still has a long way to go.

Secretariat Links:

• What we do: Rule of Law
• Country Profile: Uganda