The International Criminal Court at Ten

On Monday, the Governor-General of Australia hosted a reception for the Conference at her Sydney residence, Admiralty House. She has a pretty nice view from the front lawn, and I couldn't resist taking a photo.

I’ve been in Sydney this week attending a conference at the University of New South Wales entitled “Justice For All? The International Criminal Court. A Conference: 10 Year Review of the ICC”. The organizers note that just as Sydney is the place to celebrate the new year first, so it is the first to mark the initial decade of the International Criminal Court. Participants in the conference included the President of the Court (Judge Sang-Hyun Song), the Deputy Prosecutor and Prosecutor-elect (Fatou Bensouda), the Registrar (Silvana Arbia) and the President of the Assembly of States Parties (Ambassador Tiina Intelmann). In addition to the general theme of marking the tenth anniversary, the conference has focussed on gender justice and the role of the Court in the Asia-Pacific region.

            Impatience with the Court’s performance to date was expressed by several speakers. There is a need to “chalk up some runs” as one speaker put it. It is gratifying to learn that the long-awaited first judgment on the merits, in the Lubanga case, will be released next month. Lubanga was taken into custody by the Court in The Hague on 17 March 2006, so that will make just about exactly six years for someone in detention to get to judgment in a single-defendant trial involving a single charge of recruiting child soldiers. That’s simply far too long.

            En passant, I was told that the Charles Taylor trial at the Special Court for Sierra Leone should also be delivered in March.

            Yesterday, the former President of the Assembly of States Parties, Ambassador Christian Wenaweser, provided a very interesting review of the Court’s current challenges. He made some particularly interesting remarks about the situations that have been referred to the Court by the United Nations Security Council. Ambassador Wenaweser noted that while the Council has referred two situations, in Darfur and Libya, it has done little in the way of what we might call follow-up. “Why didn’t the Security Council welcome the arrest of Seif Gaddafy and call on Libya to cooperate with the Court”, he asked. “There is little diplomatic political support from the Security Council on referrals and it is not likely to come.”

            Ambassador Wenaweser expressed dissatisfaction about the funding of the Court’s work when the situation is initiated by the Security Council. According to the two Security Council resolutions (1593 and 1970), the United Nations is not to contribute to any of the funding of the Court’s activities that result. This is not what is in the Rome Statute and it is inconsistent with the Relationship Agreement between the Court and the United Nations, Ambassador Wenaweser noted. “We cannot have situations in which States (including non-party States) send things to the Court and then don’t pay”, he said.

            “In the future we have to think about the benefits for the Court” of Security Council referrals, he said. Ambassador Wenaweser was saying that “we don’t need any more Security Council referrals”.

            He was followed on yesterday’s panel by Ambassador Stephen Rapp of the United States. Ambassador Rapp explained that while the Obama Administration is endeavouring to help the Court, it is constrained by legislation adopted under the Bush Administration, notably the American Servicepersons Protection Act. “We can’t send cash but we can provide in kind assistance.” He said that the United States was helping with relocation of victims and witnesses, and that it was trying to get legislation passed by Congress that would allow it to use its reward programme to help with prosecutions at the Court. “We want the ICC to succeed”, he said. In answer to a question about how the United States viewed ratification of the Rome Statute by other States, Ambassador Rapp said his country was happy with this.
              The number of States Parties now stands at 120, which is double the requirement in the Statute for entry into force and equivalent to the number that voted in favour at the Rome Conference. We were told that more ratifications are to be expected soon. Fatou Bensouda said she expected Côte d’Ivoire to join in the near future.

            Despite well-deserved criticism of the Court’s performance, and particularly its inability to deliver a single verdict after a decade of work, the Conference showed a strong sense of optimism about the future of the institution. Several speakers noted the significance of last year’s Security Council resolution referring Libya to the Court. It was a unanimous resolution, enjoying the support of the United States, Russia, China and India, in addition to the other permanent and elected members of the Council. The Court is a permanent fixture in the international world order and that in itself is a supreme accomplishment.