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Unsettled times at The Hague

Three controversial judgements have highlighted the challenges facing the International Criminal Court as it prepares to move to its permanent home, writes Sophie Rigney

Sophie Rigney 22 October 2014 3463 words

What a better system might look like: the International Criminal Court’s new premises in The Hague. schmidt hammer lassen architects

Each year in springtime, crocuses, daffodils and quintessentially Dutch tulips light up the parks that dot The Hague. For a few weeks, the streets are full of the aroma of in-season strawberries, and in summer the long days stretch into the North Sea as people ride their bikes to the beach and eat hot chips with mayonnaise.

It’s easy to forget that this quiet city on Holland’s west coast is home to the International Criminal Court, or ICC, the world’s first permanent court dealing with cases of genocide, crimes against humanity, and war crimes. It is here that people accused of committing “the most serious crimes of international concern” are held, awaiting judgement.

The ICC is among a recent proliferation of courts and tribunals set up to deal with the results of war and other conflicts. I worked at another of them, the International Criminal Tribunal for the Former Yugoslavia, which is also based in The Hague. When it was created in 1993, the tribunal was the first international criminal court that had come into being since the Nuremberg and Tokyo trials were held after the Second World War. The standoff between the superpowers had made progress in international criminal justice almost impossible during the Cold War years, so it wasn’t until the early 1990s, and the violence in the former Yugoslavia and then Rwanda, that the United Nations began creating new tribunals.

Emboldened by this impulse, international organisations and some governments began to pursue an improbable dream: to create a permanent court whose jurisdiction would not be limited to specific areas at specific times, but would cover war crimes regardless of when and where they were committed.

After years of negotiation, the treaty to establish an international criminal court was finalised in Rome in July 1998. Hopes were high for an end to impunity, effective deterrence of would-be génocidaires and the protection of human rights and dignity. Since then, 122 states have signed the Rome Statute, the treaty that governs the ICC, and other specialist courts and tribunals – for Sierra Leone, Cambodia, Lebanon and other conflict zones – have also been created.

The ICC can try cases of crimes committed since 2002 on the territory of those 122 states or by one of their citizens. National sovereignty is still central: although the court focuses on individuals and their criminal responsibility, it is governments – sometimes even non-signatory governments in specific circumstances – that choose to be bound to the court. The controversial exception is when the UN Security Council sends a “situation” to the ICC for investigation. Although countries like Libya and Sudan have not signed the Rome Statute, their nationals are the subjects of proceedings in The Hague as a result of UN referrals. But the court is designed to be a last resort: if a country is both able and willing to try cases itself, then the accused will be tried there rather than by the ICC.

More than a decade after it was established, the ICC is starting to deliver its first verdicts, providing an opportunity for observers and governments to assess whether the early hopes are being realised.

The facts are sobering. The ICC has handed down just three trial judgements, all of which have been controversial. In the first, Congolese soldier Thomas Lubanga was convicted of recruiting child soldiers. The proceedings attracted their own form of celebrity – even Angelina Jolie turned up repeatedly to watch – and the verdict was heralded by many observers. But the trial was plagued by difficulties. The case showed how difficult it can be to gather evidence in a conflict or post-conflict society, far from the ICC’s headquarters. Given its broad geographic mandate, the prosecution has limited ability to employ staff with an in-depth understanding of the regions where crimes are alleged to have been committed; instead, they contract individuals in these countries to gather evidence. These “intermediaries” are not formally in the employ of the prosecution, but they act to connect the prosecution in The Hague to the local community.

In the Lubanga case, it was alleged that intermediaries coached witnesses and fabricated evidence. The prosecution was accused of withholding information from the defence, particularly information that might be relevant to the credibility of the witnesses or suggest the innocence of the accused. Long adjournments were granted in an attempt to ensure that this material was provided and fair trial guaranteed. Along the way, the case came close to collapsing.

The decision to limit the charges also caused considerable concern. Lubanga was tried for recruiting child soldiers but not for crimes of sexual violence, despite the existence of information that might support such charges. Understandably, this attempt by the prosecution to make the case discrete and manageable frustrated victims, who tried – unsuccessfully – to persuade the court to add extra charges.

The ICC’s unusual system of allowing victims to participate directly in proceedings had heightened the expectations of how it will work with the victims. Placing the victim at the heart of the trial process is understandable, but has caused difficulties, particularly when only some victims are given these roles. This raises broader questions about the role of victims at the ICC, and how its practices may unwittingly create a hierarchy of victims. Former child soldiers have gained a degree of recognition from the trial, but what impact has the decision had on the victims of the sexual crimes that were undoubtedly committed?

Judgement was finally delivered in 2012, six years after Lubanga first arrived in The Hague. His fourteen-year sentence was backdated, and he may be eligible for release as early as 2015 after serving two-thirds of his term.

The second and third judgements of the court have possibly been even more challenging. The cases of Mathieu Ngudjolo Chui and Germain Katanga (both also from Democratic Republic of Congo) were conducted as a single trial covering events in the village of Bogoro, in the Ituri district of the DRC, in early 2003. The trial began in 2009, and it was only when it ended, three years later, that the judges announced they were going to split the cases against the two men, and deal with them separately.

Ngudjolo was acquitted in a verdict that raises real questions about the standard of proof at the ICC. A prosecutor must prove its case “beyond a reasonable doubt” but there is little certainty about what that means at the ICC. The prosecution has argued that the judges acquitted Ngudjolo on the basis of unrealistic or unsupported inferences – too small a level of doubt, in their view – rather than on the basis of a “reasonable” doubt having been raised. Was “beyond reasonable doubt” interpreted as “beyond any doubt” in this case, as the prosecution has argued in its appeal? It doesn’t get much more important than this for the ICC: the standard it requires for establishing guilt must be absolutely clear.

Although Ngudjolo was acquitted, his co-accused, Katanga, was convicted – but not on the charges on which his trial was conducted. After the close of the case, a majority of judges decided to “recharacterise” the charges in order to convict Katanga of having committed the crimes differently from the way described in the original charges. This move has been strongly criticised for undermining the rights of the accused, including the rights to know the case against him, to have the time and facilities to prepare a defence, and to avoid self-incrimination. In this instance, the judges appeared to prioritise a conviction over a fair trial. One judge, Christine Van Den Wyngaert, dissented strongly – showing a real division between the judges on how to conceive of fair trial and the rights of the accused.

The rights of the accused are fundamental issues for the ICC. How it decides to deal with this question will undoubtedly affect how trials are run, and may affect the court’s legitimacy. Like Lubanga, with time already served, Katanga may be eligible for release as early as next year.

These three verdicts have caused many to question the operation of the court. Where trials are long and complex, the standard of guilt is uncertain, and charges can be altered after the hearings, the law appears disorderly, even chaotic, and lacks certainty and clarity. Each of these cases was relatively small in scope, and the accused were junior members of military or state hierarchies. And yet, even these relatively simple and contained cases have proved challenging.

Unfortunately, these verdicts can even be seen as high points for the ICC. Despite their problems, they have come to a conclusion. With external pressures – a lack of money, a lack of state support – matched by internal organisational problems, the court has been slow to bring other alleged perpetrators to trial. Cases are collapsing well before they reach judgement.

A key area of concern is funding, which comes primarily from signatories to the Rome Statute. In January this year, the ICC received a significant funding boost, taking its annual budget to almost €122 million (A$178 million) for 2014. On one view, this is a huge amount of money to be spent each year on a court that has only secured two convictions (one of which rested precariously on grounds not charged by the prosecution). But considering the ICC’s mandate – to investigate and prosecute the worst crimes committed all over the world – its budget is modest, and has hardly increased in years, despite the court’s activity increasing enormously.

This year’s budget increase was almost entirely directed towards the prosecution, leaving other areas of the court overstretched. My experience as a defence lawyer in a similar tribunal has shown me that it is almost impossible to ensure a client gets a fair trial without adequate resources. If we want good justice, we have to pay for it – but some states have already indicated that they will oppose any further budget increases. The ICC’s current caseload – twenty-one cases, nine situations under investigation, and another nine areas of the world undergoing preliminary examinations to determine if there is enough evidence to continue – is already suffering, suggesting that it will be difficult for the court to address any newly referred situations adequately, however dire and deserving they may be.

Without a global police force, the ICC relies on governments not only for money, but also for serving arrest warrants, assisting investigations and providing much of the logistical help necessary to bring an individual to trial. To say that the court rests on this support is an understatement: governments are responsible for the court’s very viability. This becomes tricky when individual governments are not supportive of the court’s actions. The Sudanese president Omar al-Bashir, who is the subject of an arrest warrant on charges of genocide, crimes against humanity and war crimes, has travelled to a number of ICC member states without being arrested (although, encouragingly, other ICC member states have made it clear that al-Bashir would be arrested if he travels to their territory).

But the real pressure is in the tense relationship between the ICC and African governments. While the ICC has been asked to investigate alleged crimes in 139 countries – including Australia, for its asylum seeker policies – it has proceeded to investigations in fewer than a dozen countries, all of them in Africa. Not surprisingly, this has been portrayed as a form of neocolonialism or “white man’s justice,” despite the fact that the prosecutor is now an African woman, Fatou Bensouda, from The Gambia.

The relationship between the ICC and African states has become particularly fractious since Kenya’s president Uhuru Kenyatta and his deputy William Ruto were indicted at the ICC over the mass violence after the 2007 Kenyan elections. In October last year, an African Union’s extraordinary summit on the ICC demanded that these trials be suspended until after Kenyatta and Ruto complete their terms. This undermines the very reason for such a court: to ensure that high office cannot be a shield of impunity. But the outcome of the summit was more positive than many expected: there had been talk of a mass exodus of all African Union members from the ICC. As long as the relationship remains tense, the ICC will have difficulty relying on these governments for the logistical help it requires for a successful case.

Although the ICC hasn’t bowed to the pressure to drop the case against Kenyatta, Ruto and Ruto’s co-accused, Joshua Sang, the cases are slowly dying. Kenyatta’s appearance at the ICC earlier this month was the first time a sitting head of state had appeared at the court. But witnesses are refusing to testify, and the prosecution alleges that the Kenyan government is being recalcitrant in declining to hand over Kenyatta’s financial documents. In the Ruto and Sang case, witnesses are changing their stories when they get to court, and there are rumours that the Kenyan government is bribing or intimidating witnesses. Equally, though, several witnesses have said they have been given financial inducements by the prosecution. As a result, the case against Kenyatta has been delayed because of a lack of evidence and the case against Ruto and Sang looks increasingly unlikely to result in a conviction.

Prosecutor Bensouda must be commended for not continuing to prosecute Kenyatta where there is insufficient evidence, and has asked for more time to bolster the case. But there must be an end-point to this. Limited court resources, certainty for the accused, and stability for Kenya all dictate that a case should not spend too long in legal limbo.

Internal organisational problems have also caused considerable concern. Allegations that a staff member sexually assaulted four witnesses in the ICC’s protection program in the Democratic Republic of Congo are profoundly worrying. The ICC concluded an internal review of the matter last year, but there is little in the way of publicly available information. A new “independent oversight mechanism” will be responsible for investigations into reports of misconduct or illegal acts committed by a judge or by any staff member of the chambers, registry or prosecutor’s office. But this body is explicitly restricted from investigating interference – witness intimidation, for instance – in the administration of justice. Only the prosecution can look into such allegations, which means that it remains responsible for investigating its own alleged misconduct.

Among this multitude of frustrations, what can be said in the ICC’s defence? Its new guidelines on prosecuting sexual violence, released in early 2014, are certainly commendable, although there is still much to do on ensuring successful prosecutions for these crimes. But perhaps the ICC’s greatest legacy is the fact that its existence is promoting global standards of international justice at the local level. Because the ICC is a court of last resort, with national jurisdictions given first priority for trying their own citizens, signatory governments must take responsibility for strengthening their laws relating to genocide, crimes against humanity, and war crimes. In some ways, the court’s best legacy will be the cases that don’t appear before it, and are instead tried in impartial domestic settings, ensuring that the rule of law in these conflict-affected communities is strengthened.

Even in this area there has been controversy, though: the most recent decisions on “complementarity,” or a nation’s ability to try its own nationals, have been disappointing – and potentially devastating for the ICC. The court has agreed that Libya is both able and willing to try Abdullah Al-Senussi, the intelligence chief in Muhammand Gaddafi’s regime, despite the overwhelming security problems in Libya and the probability that domestic proceedings will violate the accused’s rights. Amnesty International has “deplored” the court’s decision. It is hard to see the ICC taking a leading role in building the rule of law around the world when it signals that unfair proceedings are acceptable.

Often, the ICC’s very existence is held out as its major success. That so many countries could engage in such challenging negotiations, and ultimately agree on this unprecedented global court, certainly represents a success. That the court’s documents articulate complex laws and procedures, and in this way strengthen international rule of law, represents a success. That 122 states have agreed to be bound by the court is another success. And the fact that – against the odds imposed by state sovereignty, the complications of operating in conflict and post-conflict communities, and the difficulties gathering evidence without a police force – it has completed three cases is also considered a success. These gains have been too hard-won to allow the many challenges facing the ICC to undermine them. But the mere existence of the court is no longer enough.

No one who believes in the potential of international criminal justice wants to see the ICC falter or fail. Two potential – in some ways divergent – futures for the court are particularly worrying. The first is that the ICC turns into a court whose trials are more show than trial, where the rights of the accused are sacrificed in order to punish. War crimes cases have the potential to be particularly punitive, and the possibility of slipping into hard retribution is always present. When I was a defence lawyer in trials like these, I saw the importance of ensuring a fair trial, both for the individual accused and for the legitimacy of the trial process. We must seek to protect the court from a future that would be devastating to the international rule of law and the protection of human rights.

The second worrying possibility is that the ICC is seen as lacking power by those who are committing these crimes – or worse, that it is seen by perpetrators as preferable to other courts. Last year, the voluntary surrender of Bosco Ntaganda to The Hague via the US embassy in Kigali was celebrated as a demonstration of the power of the ICC. But there is an alternative perspective: that Ntaganda had carefully weighed his options, and decided, in light of the ICC’s problems, that a trial in The Hague was the most prudent choice on offer. The better the court’s functioning, the greater the chances that trials will be fair, verdicts will be accurate and the guilty will have reason to fear its existence.

My own hope for the ICC is that it helps create a space where we do not hide from humanity’s complexity. I hope that victims are not disempowered, and accused are not demonised. In wars, victims will sometimes also be perpetrators, and accused will sometimes also be victims. In The Hague I saw time and again the humanity of people accused of committing these crimes. I would like to see a court where we can appreciate this complexity, rather than collapsing identities into fixed roles. I would also hope to see a court that does not ignore the structural causes of conflict. The sole focus of a trial should certainly be the determination of an accused’s guilt, but one problem with individualising responsibility is it allows us to ignore questions about what made these conflicts possible. I hope for a court that is able to engage with these complex issues – or at least, that can facilitate these conversations more broadly.

Since its establishment, the ICC has been housed in temporary accommodation – tall, white buildings on the outskirts of The Hague. In 2007, the decision was made to build permanent premises, and construction of this physical proof of a permanent court is due to be completed next year. Surely, the logic goes, so much money and effort would not be spent on a building for a court that lacks existential certainty? But the Palace of Nations, built in Geneva to house the subsequently dissolved League of Nations, reminds us that buildings alone cannot ensure the lives of global institutions.

As we have seen in recent months, there is a continuing need for a legal system to punish genocide, crimes against humanity, and war crimes. Acknowledging the problems at the ICC forces us to imagine what a better system might look like. In a decade from now, we can only hope that the new premises house a vibrant court, more secure in its role, having overcome the problems that currently beset it. •

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