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International justice for all

by Kim Gordon-Bates

The inaugural session of the International Criminal Court took place in The Hague on 10 March 2003. Established by international treaty, this permanent institution will complement national jurisdictions that are unable or unwilling to bring to justice the perpetrators of genocide, war crimes and crimes against humanity.

It is strange to be seeking the answer to one of the world's most delicate problems in an area of town full of office furniture stores and parking garages. But, by 2007, the International Criminal Court (ICC) will have found a more dignified permanent location in a residential part of the Dutch capital, The Hague. For the time being, though, it lacks a courtroom — an interim one will be built where the car park is now. The architecturally non-descript building at 174 Manweg is temporarily home to an awesome legacy of legal history, from Nuremberg, Tokyo, Arusha and The Hague (Mark I). Within these walls, the frustrating struggle to deny war criminals any escape from impunity has found its first incarnation.

On 10 March 2003, just down the road in a rather more regal setting, the first 18 ICC judges, chosen by the Assembly of States Parties to the Rome Statute, the treaty that gives the ICC its authority, were sworn in the presence of Queen Beatrix of the Netherlands before a gathering of world dignitaries. The ICRC was represented by its president, Jakob Kellenberger. The event, taking place in the run-up to another international war and in the aftermath of a number of recent bloody conflicts, was widely celebrated by the international community, the media and human rights organizations. Those nations who were not listed, either among the 89 who have ratified the Rome Statute or the 139 that have initially signed it, must have felt the chill air of isolation.

Despite the high-profile inauguration festivities, the court is keen to downplay expectations. According to Morten Bergsmo, a Norwegian senior legal advisor to the Prosecutor's Office, the inauguration of the ICC "is not a dramatic leap forward, it is more a continuation of the momentum for international criminal justice that was set in motion in the early 1990s".

The circumspection is justified in that the ICC is, by its own admission, a safety net that will act only on cases when concerned countries neither can nor wish to deal with relevant complaints in the framework of their own existing legal structures. Of late though, a number of developments — in Cambodia, East Timor and Sierra Leone, for instance — have shown that even states profoundly affected by a terrible conflict can find the will and means locally to bring those accused of war crimes to justice. ICRC legal experts actively support these national undertakings in nation states by assisting authorities in the drafting of national legislation to outlaw war crimes under the principle of universal jurisdiction.

Sarajevo, 1993. Intentionally dircting attacks against civilian objects is an imprescriptible crime of war.

Claimants and perpetrators

But hopes in national legal endeavours can be misplaced and the ICC is there to pick up where local efforts fail. Officially active since July 2002 after 60 countries ratified the Rome Statute, ICC staffers have been thrown into the deep end of things. Within a period of months some 200 'communications', as complaints are called, have been received. While no indication is given on the nature of the complaints, it is said that they mainly come from Africa, Latin America and Asia. The immense appeal of the ICC is at least in part owing to the fact that anybody with a serious grievance, be they an individual, an association, or a state representing the interests of aggrieved persons, can seek to initiate a legal process against the alleged perpetrator of a crime against humanity, a war crime or an act of genocide.

The process starts when the office of the ICC's prosecutor subjects a complaint to strenuous legal and factual analyses and decides to submit to a pre-trial chamber. The ICC will not be able to adjudicate on all the grievances it receives, says Bergsmo, but "we will want to get those who are more responsible", in other words, the ICC believes it is better to go after one general than ten captains.

The court can call upon states party to the treaty to assist in the gathering of information for a case. It also can conduct investigations of its own within certain limitations. But a lack of compliance by an uncooperative or hostile state will not prevent a trial from happening. "Witnesses are most important," says Bergsmo, adding that, "access to areas will be significant but it is not decisive." In other words, ICC hearings allow victims to express their pain and anger. Also, the court will not grant immunity from prosecution to an accused who agrees to cooperate, yet such cooperation will be taken into account when sentencing takes place.

According to the Rome Statute, a person found guilty by the court risks a maximum "term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person" (article 77); more commonly though, terms of prison will not exceed 30 years. Equally important, the court has the power and the responsibility to decide whether a victim is entitled to reparation, and if so, on the scope and extent of the reparation owed.

A formidable job ahead

Ambassador Philippe Kirsch (Canada) has recently been elected president of the ICC panel of judges. He is a member of the ICRC international advisers group until August 2003. Ambassador Kirsch contributed the foreword of Elements of War Crimes under the Rome Statute of the international Criminal Court published by ICRC/Cambridge University Press in 2002.

Could you briefly illustrate the link between the Rome Statute, the ICC and international humanitarian law (IHL)?
What the Rome Statute does in addition to the existing body of IHL is to create a permanent institution for the effective implementation of that law when states fail to do so. This creates the missing link between IHL and individual criminal responsibility to ensure both effective respect for IHL and an effective remedy to impunity for its violations.

What do you think would be the most noticeable impact of the ICC in the months or years to come?
It is only from the perspective of a future historian that the ICC's impact may properly be assessed. It is my hope that that impact will be seen to have asserted the principles of international justice and in so doing, averted violations of that justice which would otherwise have been committed.

An ominous warning

Expectations are high that over time the ICC will be an ominous warning to all would-be criminals and serve as a convincing deterrent. In Bergsmo's words, "The ICC will add sharp teeth to international law", and contribute to further restricting impunity.

Although the ICC bases itself on a wide spectrum of applicable law — there is, for instance, no general requirement that a context of armed conflict should prevail for a crime against humanity or even an act of genocide to be considered by the court's prosecutor — it is a vital road sign on the rocky path to satisfactory enforcement of international law. According to Louise Doswald-Beck, secretary general of the Geneva-based International Commission of Jurists, "It is a massive understatement to say that the Geneva Conventions and their Additional Protocols influenced the Rome Statute: it is almost entirely based on them."

The ICRC participated actively in the diplomatic negotiations leading up to adoption of the ICC statute and welcomed its entry into force last year. Its advisory service is also engaged in assisting states to incorporate their ICC obligations into domestic law. In recognition of the ICRC's unique humanitarian mandate in situations of armed conflict, in particular the need to preserve access to victims at all times, the ICC's Rules of Procedure and Evidence provide that ICRC staff cannot be compelled to testify before the court.

And yet despite everything, despite all obstacle and misgivings — of both the legitimate and less legitimate kind — the ICC must work and be seen to be working.



Kim Gordon-Bates
Kim Gordon-Bates is ICRC senior editor.

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