By Doug Saunders, Globe and Mail, February25, 2012
Our rage and horror (at the Syrian slaughter of innocents) produce two responses. On one hand, we wish Mr. Assad would disappear: Fled, unseated, defeated or killed, whatever it takes to make the killing stop. This is the political approach. On the other, we want to see him pay for his crimes. This is the legal approach. If only there were a white-suited sheriff who could read him his rights and bring him to trial.
Making the Syrian dictator disappear will not be easy, as we saw at Friday’s failed summit in Tunis. But, we remind ourselves, there is a man in a white suit.
His name is Luis Moreno Ocampo, the Argentinean jurist who is the chief prosecutor of the International Criminal Court. Mr. Ocampo, in almost a decade running the world’s first permanent international court, has made himself known for his sudden arrival by helicopter, surrounded by TV cameras, in conflict zones. And for his big, ambitious claims: that Saif Gadhafi, son of the late Libyan dictator, “will face justice, that’s his destiny,” months after announcing incorrectly that Mr. Gadhafi had been captured, or that Sudanese President Omar al-Bashir would soon be brought to justice for the Darfur slaughter.
This should be the ICC’s moment. It now has its first head of state, Laurent Gbagbo of the Ivory Coast, behind bars in The Hague; his trial will start later this year. The case involving the court’s first arrest, made in 2006 against Congolese warlord Thomas Lubanga Dyilo, is likely to reach a verdict soon.
But it is impossible to see the ICC as a serious solution, and even though there have been some calls to get it involved in Syria, few believe it would help, and it might make things worse. The court is no longer seen as a major international force, in good part because of Mr. Ocampo.
One problem is that Mr. Ocampo’s desire to be seen threatening leaders with trials runs the risk of keeping those leaders in power longer. “If figures in the Syrian leadership were to be under investigation by the ICC, they might be less willing to cede power,” writes American legal scholar John Quigley. “The Syrian opposition might well oppose ICC action, as an ICC investigation might keep them from getting the voluntary departure of the top leadership.” This was certainly the case with Robert Mugabe and his generals, and is suspected elsewhere.
But the larger problem is that Mr. Ocampo has made his court’s legal process part of the political process. If countries aren’t signatories to the ICC’s treaty (and most, including Syria, aren’t), then the only route to justice is for the United Nations Security Council to refer them to the court. That’s what happened last year in Libya.
It quickly became apparent, however, that the superpowers on the Security Council (who aren’t ICC signatories themselves) were using the court’s investigation to marginalize Moammar Gadhafi and clear the way for a military solution; there was no real interest in bringing him to The Hague. “There is a largely untold story about how the ICC has been getting closer and closer to the power politics of the UN Security Council by accepting its referrals, which are politically tailored,” says Mark Kersten, a researcher into international-law politics at the London School of Economics.
That’s a serious problem, because the court is widely viewed in the developing world as an instrument of Western intervention in Africa. Indeed, all 22 cases currently before the court have involved African states, despite atrocities elsewhere. Mr. Ocampo’s image as a white-suited outsider, tied to the superpowers, has poisoned the idea of international justice and made it seem like a crusade. Mr. Kersten, researching the court’s work in northern Uganda, found that “many thought the ICC was a man.” Unfortunately, they weren’t all that wrong.
Crimes against humanity are increasingly rare. That is because of better politics and economics, not because international justice serves as a deterrent. It has an important role in bringing lethal disputes to a close and preventing vengeance, but is not an instrument of rescue or prevention.
Later this year Mr. Ocampo will be replaced by Fatou Bensouda, a Gambian lawyer known for her firm but professional approach. We can hope that she will put an end to the ICC’s age of heroism.
First, as any law student barely entering his or her first semester in law school must know, politics and the law are and must remain separate, never to be married, never to sleep together, and certainly never to enter into a business relationship. However, we all know that lawyers gravitate to politics, whether as candidates or as back-room volunteers. Politics is where the connections are made that undergird legal careers, and that also too often sustain the appearance of croneyism, between the "establishment" and the political operatives, including sometimes the government officials.
If the International Criminal Court is to have a future, and clearly it must, then people like the "man in the white suit" will have to give way to a much more professional, and that includes ethical, approach to prosecution. And that means separating the pursuit of truth (the core of any modicum of justice) from the promotion of political agendas. Will Fatou Bensouda, the Gambian lawyer who is to replace Mr, Ocampo, put the court on the road to such a separation?
Second, the members of the Security Council are not signatories to the ICC. One of the more obvious reasons might just be that people like Mr. Ocampo have established a culture of too much politics inside the ICC. Another might be that, to sign, would be for the major power to have to surrender a portion of their national power and their national interests to a wider, broader and more international and more collaborative standard, and not be able to keep their dirty laundry in their national "closet". The world would and should quickly see, and thereby take action, if and when citizens of any country are being persecuted by their government, as is the current case in Syria. And the world must have institutions, like the ICC, to which it can bring offenders of basic human rights, in order that others will come to resist such oppression, given that there might possibly be consequences.
However, with such potential signatories as the United States continuing to resist becoming a signator, how can we expect other countries like Russia, China, India to come on board? The short answer is, "We can't!"
Third, the ICC is quite clearly still work in progress.
What is the Rome Statute?
On 17 July 1998, a conference of 160 States established the first treaty-based permanent international criminal court. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as States Parties and are represented in the Assembly of States Parties.
The Assembly of States Parties, which meets at least once a year, sets the general policies for the administration of the Court and reviews its activities. During those meetings, the States Parties review the activities of the working groups established by the States and any other issues relevant to the ICC, discuss new projects and adopt the ICC’s annual budget.
As of 1 Februray 2012, 120 countries are States Parties to the Rome Statute. Of these, 33 are from Africa, 18 from Asia-Pacific, 18 from Eastern Europe, 26 from Latin America and the Caribbean and 25 from Western European and North America. (From the ICC website.)
And here are some more FAQ's, and answers from the ICC website)
How is the Court funded?
The Court is funded by contributions from the States Parties and by voluntary contributions from governments, international organisations, individuals, corporations and other entities.
How does the ICC differ from other courts?
The ICC is a permanent autonomous court, whereas the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as other similar courts established within the framework of the United Nations to deal with specific situations only have a limited mandate and jurisdiction. The ICC, which tries individuals, is also different from the International Court of Justice, which is the principal judicial organ of the United Nations for the settlement of disputes between States. The ad hoc tribunal for the former Yugoslavia and the International Court of Justice also have their seats in The Hague.
Is the ICC an office or agency of the United Nations?
No. The ICC is an independent body whose mission is to try individuals for crimes within its jurisdiction without the need for a special mandate from the United Nations. On 4 October 2004, the ICC and the United Nations signed an agreement governing their institutional relationship.
Which crimes fall within the jurisdiction of the ICC?
The mandate of the Court is to try individuals rather than States, and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled.
What is genocide?
According to the Rome Statute, “genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
•killing members of the group;
•causing serious bodily or mental harm to members of the group;
•deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
•imposing measures intended to prevent births within the group;
•forcibly transferring children of the group to another group.
What are crimes against humanity?
“Crimes against humanity” include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
•deportation or forcible transfer of population;
•rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
•persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
•enforced disappearance of persons;
•the crime of apartheid;
•other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.
What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:
•mutilation, cruel treatment and torture;
•taking of hostages;
•intentionally directing attacks against the civilian population;
•intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
•rape, sexual slavery, forced pregnancy or any other form of sexual violence;
•conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.
What is a crime of aggression?
As adopted by the Assembly of States Parties during the Review Conference of the Rome Statute, held in Kampala (Uganda) between 31 June and 11 May 2010, a “crime of aggression” means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.
The act of aggression includes, among other things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.
The perpetrator of the act of aggression is a person who is in a position effectively to exercise control over or to direct the political or military action of a State.
When will the Court have jurisdiction over the crime of aggression?
The Court may exercise jurisdiction over the crime of aggression, subject to a decision to be taken after 1 January 2017 by a two-thirds majority of States Parties and subject to the ratification of the amendment concerning this crime by at least 30 States Parties.
Can the ICC deal with terrorist acts within its existing jurisdiction?
The ICC has jurisdiction over genocide, crimes against humanity and war crimes. The ICC may be able to prosecute terrorist acts only if they fall within these categories.
Does the ICC have the power to arrest suspects?
The Court does not have its own police force. Accordingly, it relies on State cooperation, which is essential to the arrest and surrender of suspects.
According to the Rome Statute, States Parties shall cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
Who has to execute the warrants of arrest?
The responsibility to enforce warrants of arrest in all cases remains with States. In establishing the ICC, the States set up a system based on two pillars. The Court itself is the judicial pillar. The operational pillar belongs to States, including the enforcement of Court’s orders.
States Parties to the Rome Statute have a legal obligation to cooperate fully with the ICC. When a State Party fails to comply with a request to cooperate, the Court may make a finding to that effect and refer the matter for further action to the Assembly of States Parties.
When the Court's jurisdiction is triggered by the Security Council, the duty to cooperate extends to all UN Member States, regardless of whether or not they are a Party to the Statute. The crimes within the jurisdiction of the Court are the gravest crimes known to humanity and as provided for by article 29 of the Statute they shall not be subject to any statute of limitations. Warrants of arrest are lifetime orders and therefore individuals still at large will sooner or later face the Court.
This brief excerpt of information from the ICC website also discloses that the ICC is indeed a "work-in-progress" and certainly has not come to the full fruition of its mandate on "what" is its work, but even more importantly, both the "how" and the "who" are still evolving.
It would seem that we are at a stage in our international legal development that could be compared with the early stages of sterilization of food products. There are some limited signs of progress, but clearly the message has not reached the most remote corners of the planet, that this is a "good" step for the people in every country, given the many biases against anything "from away" as the people of Newfoundland and Labrador would put it.
Regional, parochial and tribal cultures, including the most obvious fears of "invasion" even in the non-military terms of a new legal structure with new legal requirements, new processes, new prosecutors and new expectations will readily put brakes and roadblocks on this project. And those brakes and roadblocks are not, and will not be restricted to the underdeveloped countries. And, if the court is already seen by some as an instrument of the "west" then its future is already clouded with uncertainty.
So we seem to have this "infant in the incubator" of the world's judicial community, struggling for legitimacy, for oxygen, for dollars and new signatories, and for new and sustainable decisions that will, over time, bring some of the missing ingredients to its reputation.
Balancing national interests with international interests, always an extremely complex and risky venture, is even more fraught with peril, in the legal arena. However, the attempt to make progress in these still unchartered waters merits the attention and support of all people of every race, nationality, religion and culture.
We need to watch, and to support those efforts to enhance the ICC by our various national leaders, since international co-operation will only happen piece by piece, and certainly not by some magical tsunami of political, legal, economic and cultural magnitude.
Light green: states that have ratified or acceded but for which the Statute is not yet in force
Orange: signatories to the Rome Statute which are not states parties