*Africa and the International Criminal Court
* World Street Journal:
Stephanie Hanson, News Editor
Council on Foreign Relations
Friday, July 25, 2008; 9:31 AM


*Introduction*

In July 2008, the chief prosecutor of the six-year-old International
Criminal Court (ICC) presented
evidence<http://www.icc-cpi.int/press/pressreleases/406.html>that
Sudanese President Omar al-Bashir committed genocide, crimes against
humanity, and war crimes in Darfur. The announcement rekindled a debate over
the purpose of the world's first permanent court dealing with grave crimes.
The ICC has focused its initial efforts on Africa, but some on the continent
are questioning the court's ability to provide justice. Meanwhile, the
United States, initially one of the ICC's most fervent opponent, appears to
be softening its position on the court.
*What is the International Criminal Court?*

Established in 2002, the ICC is a permanent court to try individuals who
commit the world's most serious crimes: genocide (the extermination of a
group of people based on race, class, or creed), war crimes (violations of
the Geneva Conventions), and crimes against humanity (systematic abuses
based on political, social, or cultural differences). The Court will
determine its jurisdiction over the crimes of aggression (as yet undefined)
at a review conference in 2009. The ICC does not supersede the authority of
national courts; rather, it is a "court of last resort," governed by the
principle of complementarity: It will only act when a national government
lacks either the will or the capacity to prosecute a crime committed within
its jurisdiction. Proceedings before the ICC may be initiated by a state
party, the prosecutor, or the UN Security Council. To date, 104 countries
have agreed to be bound by the provisions of the Rome
Statute<http://stage.cfr.org/publication/9017/>,
which established the ICC. Cases can only date from the time of the court's
inception in 2002. The United States signed on to the Rome Statute during
the Clinton administration, but in 2002 the Bush administration revoked the
U.S. signature.
*What cases are before the ICC?*

Four situations have been publicly referred to the Prosecutor of the ICC:
Three state parties (Uganda, Democratic Republic of the Congo and Central
African Republic) have referred situations occurring on their territories,
and the UN Security Council has referred the situation of Darfur, Sudan. Two
potential cases were dismissed in 2006 (Venezuela and U.S. actions in Iraq),
and five others (Central African Republic, Cote d'Ivoire, and three that
have not been made public), remain under analysis. The following four
investigations are ongoing:


   - *Uganda*. The Court has four outstanding arrest warrants for top-level
   members of the Lord's Resistance Army (LRA), including its leader Joseph
   Kony. The ICC does not have the power to arrest these four persons; such
   arrests are the responsibility of state parties. Kony refuses to negotiate
   with the Ugandan government unless the ICC drops its indictments. As a
   result, Ugandans, including victims of the LRA, have accused the ICC of
   undermining the country's peace process.

    - *Democratic Republic of the Congo (DRC).* In March 2006, Thomas
   Lubanga Dyilo was surrendered to the Court by the Congolese government after
   a February warrant for his arrest. His trial was set to begin in June 2008,
   but has been delayed because ICC judges determined the prosecution had
   withheld evidence from the defense. Lubanga, a militia leader in the
   country's northeast, stands accused of recruiting children under the age of
   fifteen to fight in the DRC's civil war. Two other Congolese rebel leaders
   were indicted by the court in July 2007.

    - *Darfur, Sudan*. The UN Security Council voted to refer the issue of
   Darfur to the ICC in March 2005 in response to ongoing reports from UN
   experts and others about atrocities committed against civilians on a mass
   scale. The ICC prosecutor told the UN General Assembly
(PDF)<http://www.icc-cpi.int/library/organs/presidency/PK_20061009_en.pdf>in
October 2006 that the court has started pretrial investigations,
   including more than fifty missions to fifteen countries, the screening of
   close to 500 potential witnesses, and three missions to Khartoum to assess
   national proceedings. In May 2007, the court issued
warrants<http://www.icc-cpi.int/pressrelease_details&id=241.html>for
Ahmad Muhammad Harun, minister of humanitarian affairs, and Ali
Muhammad
   Ali Abd-Al-Rahman, a janjaweed militia leader. In July 2008, the ICC's chief
   prosecutor presented evidence that Sudanese President Omar al-Bashir had
   committed genocide, war crimes, and crimes against humanity in Darfur. The
   court has several months to decide whether to indict Bashir*.*

    - *Central African Republic.* In May 2008, the court indicted Jean-Pierre
   Bemba Gombo <http://www.icc-cpi.int/cases/RCA/c0108.html>, leader of the
   rebel group *Mouvement de Libération du Congo (MLC)* for crimes against
   humanity and war crimes.

*Why are so many ICC cases in Africa?*

The prosecutor of the ICC has encouraged self-referrals, and the only such
referrals have been from African countries. While the ICC has received some
1,700 communications to investigate alleged crimes in 139 countries, 80
percent of these communications have been found outside the jurisdiction of
the court. This is "not a question of picking on Africa," says John Washburn
(PDF <http://www.amicc.org/docs/Bio_J.Washburn.pdf>) of the American NGO
Coalition for the ICC. "The UN Security Council referred [Darfur], and the
other countries came forward voluntarily." Some international law experts
say the weakness of Africa's national legal systems has led individual
countries to refer situations to the ICC. Most African states have yet to
implement the Rome Statutes in their domestic legislation, write Olympia
Bekou and Sangeeta Shah in* Human Rights Law
Revie<http://hrlr.oxfordjournals.org/cgi/content/abstract/ngl011v1>
*w, which is the first step toward retaining domestic jurisdiction.
"Strengthening domestic prosecutions so that the ICC does not have to
intervene should be the ultimate goal of every state," they write.

Others say despite the need for Africa to strengthen its domestic
judiciaries, the continent is showing its commitment to international
criminal justice. The African referrals to the ICC show "the resolve the
African governments have to say that impunity must end," ICC Deputy
Prosecutor Bensouda said in an interview with* Newswee*k.
*What is the U.S. position on the ICC?*

After initially opposing the ICC out of fear it would be used for
politically motivated prosecutions of U.S. personnel abroad, Washington
seems to be softening its stance on the court. When the Security Council
voted to refer the issue of Darfur to the ICC in March 2005, the United
States abstained rather than vetoing the referral. This act moved the United
States "from a posture of active opposition to the very existence of the
court to a position much closer to ... acquiescence in the court's existence
even though it had problems with its conception," said CFR Senior Fellow Lee
Feinstein in an intervie <http://stage.cfr.org/publication/8980/>w with
CFR.org. Washburn notes that the United States has set up a formal channel
of communication between the State Department and the ICC to work on Darfur,
headed by the State Department's legal adviser, John Bellinger II.

Some experts say the U.S. position is still ambivalent. "It is encouraging
that you no longer see a strong effort within the Republican caucus in
Congress or within the Pentagon or the State Department to dream up new
initiatives to oppose the court," says David J.
Scheffe<http://www.law.northwestern.edu/faculty/profiles/DavidScheffer/>r,
director of Northwestern University's Center for International Human Rights.
"But that doesn't mean the United States has now turned the corner to seek
out ways to cooperate with the court." U.S. legislation continues to
penalize countries that are signatories to the Rome Statute (The United
States objects to the statute on the grounds that by allowing the ICC to try
Americans, it threatens U.S. sovereignty). Since 2002, the United States has
sought bilateral immunity agreements (BIAs) -- which protect U.S. soldiers
from the ICC -- with as many countries as possible. Under the 2004
Nethercutt Amendment, those that have signed on to the ICC but refused to
sign BIAs are penalized with cuts in foreign assistance. As of August 2006,
some one hundred BIAs had been signed, and fifty-three countries
hadpublicly refused signing
(PDF<http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf?PHPSESSID=c9820aa8d3fc493ac9aa00c3bc3608d2>
).
*What is the future of the U.S. relationship with the ICC?*

Many experts think the best way for the United States to protect its
military is to engage with the ICC. A Stimson Center report
(PDF<http://www.stimson.org/fopo/pdf/US_Military_and_the_ICC_FINAL_website.pdf>)
by Victoria K. Holt and Elisabeth Dallas, based on extensive interviews with
military personnel, says the U.S. government needs to inform the military
about the ICC to reduce military anxiety, address U.S. interests directly by
participating in the Court's proceedings, and close any gaps between U.S.
law and the crimes within the ICC's jurisdiction. Scheffer argues that if
the United States played a leadership role in the ICC, it would have the
power to influence the docket of the court.
*What criticisms are leveled against the ICC?*

Critics say the tribunal:


   - *Exacerbates current conflict*s. In Uganda, the LRA's Joseph Kony is
   refusing a peace deal unless the ICC drops its indictments against himself
   and three other LRA leaders. Ugandans are increasingly dissatisfied with the
   ICC, which they say fails to respect their desire for traditional
   reconciliation and is undermining efforts for genuine peace in their
   country. The UN Security Council can postpone an investigation for twelve
   months, but most think this is unlikely. "Why would anyone want to help him
   [Kony] out?" asks Washburn.

    - *Unfair treatment of defense*. Lubanga's defense lawyer says the
   defense team has been given a smaller budget than the ICC's prosecutors, his
   evidence and witness statements have been slow to arrive, and many documents
   are impossible to read because they have been so heavily redacted by the
   ICC, who seeks to protect the identity of victims. The International Bar
   Association has corroborated the defense's concerns.

    - *Choice of cases is not transparent*. Human rights organizations
   charge that the prosecutor has not been clear about his choice of cases.
   Prosecutor Moreno-Ocampo has defended his choices as the "gravest admissible
   situations" within his jurisdiction, and the charge he has brought against
   Lubanga as the one for which he had the strongest evidence. "Because this is
   the first case there are a great many unresolved issues and potential bugs
   in the system about how the ICC is to conduct judicial proceedings,"
   Washburn says. "The prosecutor rightly wanted to have a case that was very
   simple, very clean, with very strong evidence."

 On the other hand, some experts say the Sudanese government's opposition to
the court, as well as the LRA's demands for amnesty, indicate the ICC has
quickly established itself as a force for rule of law. Scheffer says the
performance of the court thus far is "encouraging." The ICC's "capacity to
produce deterrence is clearly dependent on its being successful in trying
people and putting them in jail," says Washburn. But, he adds, the ICC "is
here for the long haul."
(c) 2008 CFR.org

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