Briefing: A rocky start for war crimes world court

The arrest warrant for Sudan's president is indicative of the mounting pressure on the International Criminal Court to show results.

By , Contributor

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    DEFIANT: Sudanese President Omar al-Bashir denounced the ICC as part of a new 'colonialism' at a March 5 rally.
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    ON TRIAL: Congolese warlord Thomas Lubanga listens to charges against him at The Hague.
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The International Criminal Court's indictment Wednesday of Sudanese President Omar al-Bashir prompted Sudan to expel more than a dozen aid groups, and some African leaders warn that the arrest warrant will damage fragile peace negotiations. The court's first trial, which began in January to try Congolese warlord Thomas Lubanga, was postponed after the star witness recanted his testimony.

It's a rocky start for the young tribunal set up to try the most serious international crimes. The court, the world's first permanent war crimes tribunal, faces mounting pressure to show results in the face of logistical hurdles and harsh opposition to both its very existence and its attempts to carry out justice.

Why did the international community decide to set up a permanent court?

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Until the establishment of the ICC, no permanent court existed for trying individuals accused of war crimes or genocide. The International Court of Justice only has jurisdiction over conflicts between states.

But nations have been prosecuting war crimes since after World War II, when the Allied powers created international tribunals to try Nazi and Japanese war crimes. In more recent decades, the United Nations has established tribunals to prosecute war crimes in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. But these tribunals are expensive, and experts say they are less efficient and less of a deterrent than a permanent court.

"The ad-hocs are wonderful institutions, but they're a stopgap, temporary sort of measure," says Leila Nadya Sadat, a law professor at Washington University School of Law and a delegate to the diplomatic conference at which the ICC was established. "Each one of the ad hocs we've seen has a huge learning curve, so you waste a lot of time."

The time gap between when the crime takes place and the establishment of a temporary tribunal gives the defendants time to destroy evidence, says Ms. Sadat, while a permanent court can act more quickly. In some cases, temporary courts are subject to the accusation of victor's justice, but a permanent court relies on laws already on the books before a crime takes place, which can increase its credibility. And because ad-hoc tribunals are temporary, possible defendants could wait out the court, waiting for it to be shut down before coming out of hiding.

What is the ICC?

The ICC was established in 2002 when 60 nations ratified the Rome Statute, the treaty that forms the legal basis for the court. Its mission is to try the most serious international crimes, particularly genocide, crimes against humanity, and war crimes. With its seat in The Hague, it is independent of the United Nations, and is funded by its 108 member states with a 2009 budget of about $127 million.

The court is meant to work alongside, not replace, domestic prosecution, and to handle only crimes that nations cannot or will not prosecute on their own.

"The ICC system exists to complement domestic jurisdiction – they fit hand in hand," says Mike Newton, a law professor at Vanderbilt University who helped negotiate the document that defines crimes within the court's jurisdiction. "So only the most serious cases, only the crimes of international concern that are of sufficient gravity, are the ones intended to be handled. Everything else is supposed to be handled by domestic courts."

The court has jurisdiction over cases in which the accused is a national of a member state, the crime took place on the territory of a member state, or the UN Security Council refers a situation to the court. It can only prosecute crimes committed after its inception.

The court has opened cases in Uganda, the Democratic Republic of Congo, Sudan, and the Central African Republic. Critics have called it "white man's justice" since all 12 ICC cases so far have been against African suspects.

Is the ICC's global pursuit of justice actually undermining peace in Africa?

Some argue that ICC action can be counterproductive to ending violence and negotiating peace in certain situations, and they will likely point to Sudan as an example. In response to Mr. Bashir's arrest warrant, Sudan expelled 13 aid agencies from the country, leading some to warn of a possible humanitarian disaster in Darfur, where more than 2 million displaced people depend on humanitarian aid. The African Union warned that the move would hurt Sudan's peace negotiations, and UN Secretary-General Ban Ki Moon said in February that the indictment would distract attention from the peace process. Aid agencies have also voiced fears that the government could retaliate violently against aid workers and peacekeepers on the ground.

Katherine Southwick, a Washington, D.C., lawyer who has worked extensively on African conflict and transitional justice issues, says the arrest warrants issued by the court for rebel leaders in northern Uganda in 2005 drove the leaders from the negotiating table and unleashed further violence on the civilian population.

The leaders are still at large and demand that the arrest warrants be withdrawn before they will negotiate.

"In the context of ongoing conflict or peace processes which are taking place in the background of violence and hostilities – if the peace process is in a mode where you're trying to build confidence and establish communication and connections with the opponent – ICC indictments can have a counterproductive effect, because they could undermine the trust of the people with whom you're trying to speak," Ms. Southwick says.

While she maintains that the indictments were harmful in Uganda, she says they could be helpful as a form of pressure in other situations – such as Sudan – in which attempted negotiations and incentives to end the conflict have not yielded results. "It's a context, case-by-case kind of situation," she says.

The ICC does have the option to defer a case if the UN Security Council requests a delay because of conditions on the ground.

Ms. Sadat denies that ICC arrest warrants derailed the Uganda peace process, and says rebel leaders were not negotiating before the arrest warrants were issued. "If you let the criminal drive the conversation, it just doesn't make sense," she said.

What obstacles does the ICC face?

The court confronts myriad hurdles to bring any case to trial. Some of the most daunting are logistical: the ICC must investigate, gather evidence, and secure the arrest of suspects in some of the world's most underdeveloped corners.

"These are very complex cases, extraordinarily complex cases," says Mr. Newton. "You're talking about all the witnesses and all the evidence having to go to another continent for a trial. And also having to collect evidence in situations where the local officials are not necessarily going to cooperate with the court."

The ICC cannot make arrests, and relies on states to arrest defendants and turn them over to the court. a key weakness. Indictees like Bashir can simply remain in a nonmember state, like Sudan, to avoid capture and trial. However, if Bashir travels abroad, the court says it will seek his arrest.

The court's jurisdiction can also prove to be a troublesome issue. ICC chief prosecutor, Luis Moreno-Ocampo, said in February that he would consider an investigation into alleged war crimes committed by Israel in its recent offensive in Gaza. His announcement came after the Palestinian Authority recognized the court's jurisdiction in an attempt to bring charges.

But the Palestinian territories are not a state, and Israel is not a party to the Rome Statute, raising questions of whether the court would have jurisdiction in the situation.

Why does the US oppose the ICC?

Former President Bill Clinton's administration signed the Rome Statute in its last days in office, though the treaty was not sent to Congress for ratification. The Bush administration "deactivated" the signature in 2002, announcing it did not intend to abide by the obligations of signatories, and signed bilateral agreements with dozens of countries preventing them from handing US citizens over to the court.

The US opposition was based on the concern that the court could unfairly prosecute American soldiers abroad, and on wariness of giving up sovereignty to an international body.

"The major fear was that a court which could not be controlled by the US ... might be used politically to harass American military people," says John Washburn of the American Non-Governmental Organization Coalition for the International Criminal Court. "Added to that are sovereignty issues, questions about the dislike of international organizations, and the tendency of international organizations to be influenced by those who didn't like the US."

Mr. Newton says the US feared that too much power would be centered in the court. "It opens the possibility, however slight, that the court could be misused for political reasons." But he adds, "Court supporters point out that it's been very judicious and careful and not politicized."

The Bush administration softened its stance toward the court and refrained from using its veto power when the UN Security Council referred the situation in Darfur to the ICC. Many observers expect the Obama administration to take a more conciliatory tone toward the court.

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