International justice
May 27th 2010
EVERY time the world learns of some unspeakable outrage from a benighted battle zone, the cry goes out that such things must never recur. That was the reaction after the Rwandan genocide; after the ethnic cleansing, mass killing and rape perpetrated in former Yugoslavia; after the terrible atrocities of Sierra Leone and Congo; and after the targeting of civilians in Sudan’s Darfur region. So to its supporters, the opening eight years ago of an International Criminal Court (ICC) based at The Hague, ready if no one else will to arrest and try the worst perpetrators of such crimes, was a step in the right direction. Yet as they gather in Kampala, Uganda, on May 31st for a two-week review of the ICC’s workings, the 111 states that accept its jurisdiction face big responsibilities.
Their hard look at the court’s role and record comes as the ad-hoc tribunals set up to try those responsible for atrocities in Rwanda, Yugoslavia and Sierra Leone (before the ICC existed) are winding down. As their permanent replacement, the ICC is gaining authority as the proper court of last resort for three sets of crimes: crimes against humanity, war crimes and genocide. Its record in handling cases it has taken on so far will be under close scrutiny.
Meanwhile, the Kampala conference must also decide what, if anything, to do about a fourth crime listed in the court’s founding Rome statute: aggression. A row about that could yet drown out all the useful work delegations have been preparing for improving the ICC’s performance and encouraging more countries to join.
In fact, there is much else to discuss. One criticism of the ICC has been its slowness in bringing cases to trial. The court has issued 13 warrants so far, including one controversially for the arrest (on charges of alleged war crimes and crimes against humanity) of Sudan’s president, Omar al-Bashir. However, only four arrests have been made, and only two trials are under way. The earlier tribunals managed to process many more cases, more quickly.
If the ICC is to move into higher gear, it needs more co-operation from all its members and supporters. As its chief prosecutor, Luis Moreno-Ocampo (above, right), likes to remind critics, the ICC has no gumshoes or handcuffs of its own; members must help to bring in the accused. But Mr Ocampo’s decision to indict Sudan’s leader has had a mixed reaction in the neighbourhood. It is popular among African human-rights groups, and supported by some African governments, but it has offended others. A few of the court’s African members have threatened to curtail co-operation with it.
Indeed, so far only Britain has formally adopted all of its obligations under the 1998 Rome statute, from witness protection to sentence enforcement and pernickety rules on privileges and immunities. Meanwhile, many of the 111 members and some non-members (25 of them will be at Kampala as observers) have used the creation of the court as a catalyst to revise their criminal law and to rework guidance to their soldiers; others have barely begun.
Spurring the construction of strong national courts is part of the ICC’s mission. For it can act only where national courts have proved unwilling or unable to do so. And there is wide recognition that justice works best when it is brought as close as possible to victims, rather than dispensed in the remote courtrooms of The Hague.
Of the five sets of cases taken up by Mr Ocampo, Congo, the Central African Republic and Uganda asked for the ICC to act; the case of Sudan’s Mr Bashir was referred directly by the United Nations Security Council; and a formal probe of Kenya’s post-election violence was opened this year only after its rival politicians could not agree to let their own courts do the job.
Among the 25 observer delegations also in Kampala from countries that have not ratified the Rome statute, America’s will be watched most closely. Unlike his predecessor, George Bush, who was often hostile to the court, Barack Obama is in principle readier to help, for example by digging up information that would bring human-rights abusers and war criminals to trial and tracking down fugitives.
But like other holdouts, including Russia, China and India, America wants to be sure that the court will avoid trampling into politics. Hence the sensitivity about prosecuting “aggression”. In contrast with the other crimes under the court’s remit, no definition of aggression could be agreed on when the court was launched, and none exists in national legislation. Eight years on, there is now a rough consensus on a definition, albeit a loose one, but none on how to turn the charge into a prosecutable crime in court.
The tortured formula on the table in Uganda is “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” A rough translation: we’ll know it when we see it.
Vagueness is not the only worry. Who decides what is a “manifest” violation of the charter that could start ICC action? The Security Council, which under the charter is supposed to settle matters of war and peace? That would please outsiders, like America, China and Russia, and worried insiders Britain and France: in other words, the council’s permanent members. But it offends others, from Brazil, which resents big-power bossiness, to Germany which values the ICC’s independence.
Then there are more fundamental questions. The aim of the court is to prosecute and hopefully deter egregious human-rights abuses. But the crime of aggression calls into question a state’s motives for using force, rather than aiming to uphold rules about how force is applied. Trying to identify aggressors could hopelessly politicise the court and undermine its credibility. Another risk is that the fear of being prosecuted for “aggression” would deter those most often called on to protect civilians from the worst abuses.
In part thanks to the court, almost every country now pays lip service at least to the idea that some crimes can never be justified. That gives the ICC moral force. But defining aggressors—manifest or otherwise—promises to be hugely divisive. And even if the talks in Kampala were to patch up a compromise, America’s Congress might then grow even more wary of the court.
The Economist Newspaper | International
