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The ICC Turns Ten: Evolution and Development

JURIST Guest Columnist Stuart Ford of the John Marshall Law School says that although the International Criminal Court has encountered numerous obstacles during the first ten years of its existence, its reputation will ultimately be decided over a longer period of time...

The International Criminal Court (ICC) is now ten years old, but what does that mean? Age is different for the ICC than it is for the other international criminal courts that have been created. The International Military Tribunal at Nuremberg (IMT) only lasted about a year from start to finish, although the Allies spent several years preparing for the trial. The International Criminal Tribunal for the former Yugoslavia (ICTY) will eventually last a little more than 20 years, and the International Criminal Tribunal for Rwanda (ICTR) will last about the same amount of time. But the ICC is not a temporary court created in response to a particular set of atrocities; it is a permanent court. There is every reason to believe that it will still be around in 20, 50 and even 100 years. There is certainly a precedent for long-lived international organizations; the International Telecommunications Union was founded in Paris in 1865 and is now nearly 150 years old.

The ICC's permanence means that it ages differently from the ICTY and the ICTR. At ten years of age, the ICTY was already a mature organization that was planning for its eventual dissolution. At ten years of age, the ICC is more like a toddler. It looks unsteady and often seems confused and indecisive.

Of course, there have been successes. The most significant success is that the Assembly of States Parties currently has 121 members. The ICC's membership has continued to grow despite opposition from some of the most powerful countries, including the US, Russia and China. There is clearly a need and a desire for a permanent international criminal court. In addition, the ICC has recently adopted a definition of aggression. The ICC will not be prosecuting crimes against peace until at least 2017, but one of the most serious violations of international criminal law is once again within the jurisdiction of an international criminal court.

But the ICC has had its share of problems and setbacks in its first ten years as well. Its first, and so far only, completed trial — against militia leader Thomas Lubanga Dyilo — almost collapsed twice. The first time it nearly collapsed over the prosecutor's refusal to disclose exculpatory information obtained in confidence from governments and United Nations agencies, and the second time the problem was the prosecution's use of intermediaries. A significant portion of the first judgment is devoted to castigating the prosecution for its heavy reliance on those intermediaries. The prosecution has also been heavily criticized for its charging strategy. The prosecutor chose to charge Lubanga only with recruiting and using child soldiers, apparently despite evidence of other violations of international criminal law. The prosecutor claimed this would conserve prosecutorial resources and shorten the trial. But the decision was criticized by civil society organizations who wanted to see charges that better reflected Lubanga's criminal responsibility, and the trial was still long and complicated.

Nor are the ICC's problems limited to the case against Lubanga. As things stand now, there is little likelihood that the ICC will obtain custody over Omar al-Bashir, the President of Sudan, anytime soon. Moreover, the ICC's issuance of an arrest warrant against al-Bashir and its pursuit of his arrest has strained relationships with the African Union and led to claims that the ICC is biased against Africans.

The ICC's involvement in Libya is also fraught with difficulties. Libya is unwilling to turn Saif al-Islam Gaddafi over to the ICC. The situation is currently being litigated before Pre-Trial Chamber I, but even if the court issues an order for Libya to turn over Gaddafi, there is no practical way for the ICC to enforce that order, and few things make a court look worse than when a country ignores its orders and gets away with it. Finally, Libya's recent arrest, and then release, of four members of the ICC's defense office has highlighted how weak the ICC is in relation to the countries it deals with. In short, it has been a troubled ten years.

Of course, it is easy to focus on the negative things and get bogged down in the details. In the long run, it is unlikely that any of these events will make or break the ICC. It is also important to remember that the ICTY and the ICTR had their share of problems as well. The ICTY was criticized in its early years for only indicting prison guards and low ranking soldiers, while the big fish remained in power in the governments of the former Yugoslavia. It was also slow and horrendously expensive. It was reviled as biased and untrustworthy by Serbians, and for many years it looked like it would never obtain custody of some of those accused of committing the most serious crimes, like Ratko Mladic, Radovan Karadzic, and Goran Hadzic. The biggest blow to the ICTY, however, was the death of Slobodan Milosevic just two months before his epic trial was to conclude.

The ICTR has had problems as well. It, too, was slow and expensive, and was accused of corruption and inefficiency in its early years. Civil society groups have repeatedly criticized it for failing to indict anybody from the Rwandan Patriotic Front. But in the long run the ICTY and the ICTR will probably both be viewed as successes, just as the IMT is now viewed as a success despite disagreements at the time about whether to try the Nazi leaders or summarily execute them and legitimate criticisms of the trial as "victor's justice." As long as the ICC can continue to move forward, can continue to improve, can continue to mature, there is every likelihood that these difficult first ten years will eventually be viewed as just an awkward adolescence. The enduring legacy of the ICC, for good or bad, will be written in the next 20, 50 and even 100 years, not in the first ten, however troubled they look right now.

Stuart Ford is an Assistant Professor at The John Marshall School of Law. Prior to his appointment there, Professor Ford served as an Assistant Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and worked for the Open Society Justice Initiative.

Suggested citation: Stuart Ford, The ICC Turns Ten: Evolution and Development, JURIST - Forum, July 6, 2012, http://jurist.org/forum/2012/07/stuart-ford-icc-ten.php.

This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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