First of all, the ICC is not celebrating it’s 10th anniversary - the Rome Statute was signed on July 17, 1998, but after that 60 countries had to ratify the treaty for it to go into effect - that didn’t happen until July 2002, and the Prosecutor wasn’t sworn in until June 2003. So it’s only been 5 years really, it’s essentially a brand new startup court - considering all that, I think a remarkable amount of work has been done - investigations have been opened in 4 countries, 10 arrest warrants have been issued, 4 warlords are in custody, and the work continues apace.

The reason the Thomas Lubanga case is in jeopardy is not prosecutorial misconduct - it’s that the UN won’t allow Judge Adrian Fulford or Defense counsel to see evidence it gave the Prosecutor under a confidentiality agreement, so the Prosecutor can’t hand it over without UN consent. The Judge and Defense rightly want to see the evidence, and the Prosecutor wants them to see it too - it’s the UN that has to give here, and if they don’t, the case should be thrown out. The Judge is forcing their hand by suspending the case, making it look like it’s the Prosecutor’s fault - but the good thing is that Judge Fulford is forcing the issue - this is the first ICC case and precedents are being set. But it looks like the UN is going to give, since the prospect of Lubanga returning to Ituri triumphant is already stoking the ethnic conflict in there, and people there are rightly blaming the MONUC/UN peacekeeping operation, not the Prosecutor. Let’s see if the UN does the right thing here and allows the case to proceed by allowing the evidence to be seen. This kind of evidence will probably be needed in many cases that involve ongoing conflicts that the ICC is and will be investigating.

International negotiators have been complaining ever since the Rome Statute was signed that taking away their ability to give amnesty was going to make it impossible for them to do their work. Well, maybe it’s time to end amnesty for the lead perpetrators of crimes against humanity and not allow that tool to be in the negotiator’s toolbox. It certainly makes it more difficult, but I’m not sure it won’t be more effective in the end. That’s what the negotiators at the Rome Conference thought when they wrote the Statute, and there are signs that it is having a positive effect.

Our company Skylight Pictures (http://www.skylightpictures.com) is making a documentary about the ICC titled The Reckoning, and many of the people we spoke to in northern Uganda at the end of 2006 were complaining about the ICC intervention with the warrants it issued for the LRA commanders – yet when we returned at the end of 2007 they were saying that if not for the ICC warrants they wouldn’t have had what is now 2 years of peace, because the only thing keeping LRA leader Joseph Kony at the peace table are the warrants he wants to get rid of. There is lots of talk there now of having the ICC warrants executed, most people saying that Kony will never agree to a peace deal - they want the man apprehended. For the victims in Africa and the people having to live with these warlords, they are not part of some ICC lab experiment - they want these thugs gone and are very happy to see them behind bars in The Hague, in the instances where it’s happened.

Charles Taylor is not being tried by the ICC - the ICC lent their courtroom to the Special Court for Sierra Leone to have Taylor judged far from Liberia and Sierra Leone, because of security concerns. The Special Court is a hybrid UN/Sierra Leone court, created with US backing, and in fact the chief prosecutors have been Americans. It’s true that there is a Charles Taylor effect amongst dictators now - good! I heard that Mugabe was ready to step down after the first election, but his inner circle made him hang on because they didn’t all want to go down with him and feared being hauled into an international court. Whatever they do, Mugabe’s days are numbered, and I would love to see his whole gang in court.

I don’t know what court it would be though, because Zimbabwe, like the US and Russia, are not members of the ICC and so are not covered by its jurisdiction. The only way the ICC can open an investigation in a non-member country is if the UN Security Council decides to refer a situation to the ICC for investigation, which is what happened in the Sudan case, another non-member country. But after the UNSC referred the case to the Prosecutor, he returned with warrants after a 20-month investigation, and now the UNSC doesn’t have the political resolve to do anything to pressure Sudan to honor the warrants. Of course al-Bashir won’t honor the warrants, but the pressure and stigma of having these warrants out for one of his government ministers and for a janjaweed militia leader have shaken him, and soon there might be one for al-Bashir himself. What’s a better alternative? To try to appease and negotiate with Khartoum while Darfur continues to burn? To wait while the UN tries to set up another peacekeeping mission? Efforts for a peace settlement go back for years with no results, while these thugs in Khartoum continue to decimate Darfur. The warrants seem to get their attention though - the international community needs to buck up and call these thugs out, put the fire under their feet. I’ve read Flint and de Waal’s book - but I can’t agree with them on this - the history of al-Bashir and his 40 thieves doesn’t warrant the approach they recommend. The warrants are more than a symbolic victory for Darfuris - it’s a step in the right direction for humanity.

And I agree that priority should be given to the living - they need to see justice done in their lifetimes, for themselves and for those who were killed. And they need to get these thugs off their backs and locked away for good, so that the next wannabe warlord or head of state that wants to rule by massacre will think not only of Charles Taylor, but of Thomas Lubanga, Jean-Pierre Bemba, Germaine Katanga, Joseph Kony, and Omar al-Bashir before he decides to join this illustrious list.

Gideon

Please note that Lowy Institute Research Associate Fergus Hanson, an authority on international law and the ICC, has posted a response to your column on our blog. You can read it here:

http://www.lowyinterpreter.org/post/2008/07/FT-hits-the-International-Criminal-Court-in-all-the-wrong-places.aspx

Excellent comment, Fergus - I liked “halcyon days of amnesties for despots” - indeed!

Hi,

This is a good blog.
I have enjoyed reading it. The contents were very useful and informative.
I’ll comment that when there is a collusion between peace and justice then there is no justice.