JUNE 15, 2010: Lacking State Support, ICC in Need of Credibility

Lacking State Support, ICC in Need of Credibility
SOURCE: Catholic Information Service for Africa (Nairobi)

What started as an ambitious attempt to establish, once and for all, a permanent international war crimes tribunal is still trying to gain credibility seven years after it was born.

Although the International Criminal Court is slowly but surely sending a warning against those who commit crimes on a massive scale, it still lacks the support of the world's major powers and several key suspects remain at large.

Of the five permanent Security Council members, the United States, Russia and China are not members. India, Indonesia, Israel and many Islamic countries have snubbed it as well.

Critics also point to its slow progress, starting its first trial in January 2009, stymied by evidence disclosure problems. A third trial is due to begin in July, but the court has not yet reached any judgement.

Other suspects remain at large, such as Joseph Kony, leader of Uganda's Lord's Resistance Army and Sudanese President Bashir Omar Hassan al-Bashir.

The aim of the court is to prosecute those responsible for the gravest of crimes if it cannot be done elsewhere.

But one of the problems is that the ICC has no police force of its own and must rely on sovereign authorities to enforce its warrants. Some states have simply refused to arrest Bashir.

"Until states are more committed to cooperating with the court, the court will continue to struggle in apprehending suspects and collecting evidence," said Vijay Padmanabhan, visiting professor of law at Benjamin N. Cardozo School of Law.

The establishment of an independent, permanent war crimes court -- building on the Nuremberg, Tokyo and Yugoslavia tribunals, was a turning point in international law.

But the U.S. remains wary about exposing its troops to prosecutions for unpopular wars, such as in Iraq and Afghanistan and is guardedly watching the ICC's development from afar.

"We've been concerned, to be frank, the court could have a prosecutor who could become politically motivated," U.S. ambassador-at-large for war crimes Stephen Rapp said.

He said if the U.S. used force to intervene in a situation where someone was engaged in mass killings and civilians were killed through operational mistakes, the U.S. was alarmed its soldiers could be prosecuted for "trying to do the right thing".

But he added the court has thus far not focused on prosecuting people for making mistakes and instead focuses on operations where the aim was to attack and murder civilians.

"As it moves forward through a series of prosecutors and the standards for the acceptances of its cases become clearer through judicial acts, I think we'd have a stronger track record to deal with the U.S. becoming closer with the court," he said.

Until then, Rapp said the U.S. will support ICC prosecutions through sharing information, witness protection and diplomatic assistance to obtain arrests and the transfer of evidence.

Another litmus test of support, however, will be whether the United Nations Security Council passes a resolution criticising Sudan for failing to arrest indicted suspects, said Richard Dicker at Human Rights Watch.

The African Union reiterated at an ICC review conference that Sudanese arrest warrants regretfully came at a critical juncture in the nation's peace efforts.

Sudan has accused the court of being a western conspiracy and all of the five 'situations' the court is investigating are in Africa, leading to wider criticism that its focus is selective.

Against this backdrop of lack of global support, Christian Wenaweser, President of the Assembly of States Parties that oversees the ICC, stressed the importance of smaller states.

"This project of having an ICC has always been driven by small and medium-sized states that were looking for the protection of the law," Wenaweser said.

Global economic power Japan, remembering the prosecutions at the Tokyo war crimes trials, is now the biggest financial backer of the court, followed by Germany and Britain.

And the ICC, despite its challenges, is starting to have an impact, said one delegate. "The mere fact that there is a court is already a deterrent, freedom fighters or revolutionaries now think about the court," one delegate said. "Impunity is not an option anymore."

But worries about the court's future dominated debates this week at a review conference of the ICC in Kampala as states sought to agree on extending the court's already ambitious mandate by allowing it to prosecute crimes of state aggression.

Division centered on the role the Security Council would play in determining whether an act of aggression took place and whether it should be investigated.

Latin American and African countries, still conscious of historical colonial and western control, argued that the Security Council should not get an exclusive role.

In the end delegates managed to reach a compromise; giving both the Security Council and the ICC powers to trigger an investigation.

But Japan swiftly criticised the legality of the deal and said it was "deeply concerned" by the fact that states that are not members of the court would be shielded from investigation.

That warning could prove an ill message for the ICC, already struggling with an image that it serves justice for some, but not everyone.