The ICC’s first five years
Published on openDemocracy, by Marlies Glasius, July 22, 2008.
(The International Criminal Court was set up in 1998 and began operation in 2003. How has it discharged its responsibilties in relation to states, civil-society groups and the victims of human-rights abuse? Marlies Glasius presents an interim report-card).
The prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has a good eye for publicity. On the eve of the ten-year anniversary of the Rome statute which established the court in July 1998, he indicted his first head of state: President Omar Hassan al-Bashir of Sudan. This announcement has trumped the news emerging a few weeks ago, that the prosecutor’s first suspect in custody, Congolese warlord Thomas Lubanga, may have to be released without trial because of prosecutorial errors …
… Attitudes and policies: The ICC, unlike domestic courts, needs to establish its legitimacy, and the prosecutor’s actions are particularly crucial in this respect. On one level, Luis Moreno-Ocampo appears to be well aware of this. He has avoided controversial investigations in (for instance) Afghanistan, or against British soldiers in Iraq. Moreover, against expectations, he has not yet opened a single investigation on his own authority. Finally, the only indictment against a government official has been the Sudanese indictment sanctioned by the United Nations Security Council. None of his current actions could cause his legitimacy to be called into question by governments, be they African or western. But he has worked much less hard to seek legitimacy within civil society. As a result, the prosecutor has been seen as biased by the conflict-afflicted population in northern Uganda, as too timid by human rights activists in the DR Congo, and too slow by victims in Central African Republic.
It is not only the indictments thus far, which are after all only a handful, that have contributed to the impression that the prosecutor serves governments, not civil society or victims. From the outset, the activities of the organs of the court, not just the prosecutor, have been characterised by what one commentator has called an “aloof and secretive demeanour”. Most victims have not seen much of the court at all. “Field offices” are established in capitals, not in the conflict regions; visits by high officials to situation-countries are rare; outreach activities are meagre (although they are expanding). It seems unlikely that this is the result of a deliberately policy of snubbing local civil society groups and victims. More probably, it is simply unfamiliar territory to the court’s officials. The law has its own jargon and procedures, in which victims, witnesses and bystanders are to some extent reduced to abstractions. Discussing the rationale and merits of one’s actions might even be considered as breaching the ethos of impartiality … (full text).