Confusion in the ICC

The Prosecutor of the ICC, Fatou Bensouda is being applauded for her request to open an investigation in Georgia, which is the first situation outside of Africa to be investigated, and where human rights organizations have been clamoringfor the Court’s intervention. Bensouda has also been hailed for her statement of support regarding the transitional justice agreement that the FARC guerillas and the Colombian government reached. These are two situations that at first glance demonstrate the success of the complementarity established in the Rome Statute, based on supporting State actors that seek to prosecute perpetrators of international crimes and intervening when States are either incapable or unwilling to make such decisions internally. 

In an interview two weeks ago with Justice in Conflict, the Prosecutor highlighted the importance of justice and working together. She stated, “without the security and stability that justice brought, we not be able to build a society where our children could grow up safely.” This trite phrase says a lot about complementarity as a functional principal of the system with all the political repercussions it carries.

When one reads the phrase as a whole, the emphasis is on us. This is because when we talk today about international justice, it is a topic that requires care. This is why this statement at this moment is so important. In spite of the good news about Georgia and Colombia, the Chief Prosecutor knows that this principle is at stake and with it the legitimacy of the Rome Statute System itself has become contentious.

THE CONTENTIOUS PRINCIPLE OF COMPLEMENTARITY; THE CORNERSTONE OF THE CONFUSION

The Rome Statute that commits its bodies (the Prosecutor and the Court) and to State Parties and the UN Security Council, is based on the principle of complementarity. This idea that the universal struggle against impunity of international crimes (crimes against humanity, war crimes, and genocide) is a global interest, and, therefore, the bodies this Statute creates, and its State parties, should be directed toward investigating and trying them. This principle is justified to the extent that internal justice mechanisms are strengthened in order to hold perpetrators of such crimes accountable, and, as a last recourse, when the State is unable or unwilling to do so, the ICC steps in to enforce the Statute.

But in reality, this has faced many challenges. The ways in which States and ICC bodies have interacted regarding complementarity has been confusion, and the ICC has created challenges to the classic concept of sovereignty, which is uncomfortable for some, as Cryer showed a decade ago.

For example, in cases where the State has requested the ICC’s intervention, and in particular the Prosecutors, complementarity is at risk due to the erratic actions of the Prosecutor. Cases such as those in Kenya and Uganda, both in the investigation stage before the Court, have had bittersweet records – quite bitter records – as there the strong support for the ICC was replaced with internal disrepute, suffering serious grievances.

Andrew Songa of the Kenyan Human Rights Commission, during a recent visit to Bogota, informed me of this situation. Since the ICC began the case against President Kenyatta as one of the masterminds behind the post-electoral violence in the country, the processes of reparation to victims has stopped, as has all discussions regarding accountability for the atrocities committed in 2007. To make this worse, last December, Prosecutor was forced to withdraw the charges) against Kenyatta due to the lack of evidence, which evidences the profound limitations that the Court faces when it investigates people with strong political influence, as they can interfere with the investigation such that it becomes unviable.

In Uganda, the Prosecutor’s intervention has been so erratic that it has risked, if not ruined, the peace process between the government and the Lord’s Resistance Army. Such is the extent that in his doctoral thesis, Mark Kersten states, “if an agreement was reached between parties that included ICC indicted individuals, it is possible that the parties would also seek to challenge the admissibility of the ICC’s warrants.” Currently, the situation in Uganda is on hold with an arrest order with no practical effects, for Joseph Kony, and a rearmed and perhaps more powerful guerrilla.

THE PROSECUTOR MUST MAKE DECISIONS SOON…

Thus, behind the positive steps in Georgia and Colombia, there is a confusing legacy regarding the role of the ICC and the principle of complementarity.

In contrast to Kenya, in Georgia robust actions must be taken to investigate the perpetrators of violence in South Ossetia, including Russians and Georgians that committed atrocities in this State, to avoid being left without cases capable of being brought to the Court within a reasonable time.

In Colombia, the dialogue between the State and the ICC are fundamental. After its actions in Uganda, the Court cannot afford to catalyze the failure of a peace process, either for excessive intervention or stubbornness regarding legal discussions.

Therefore, its short-term decisions regarding how it addresses such situations, and medium-term decisions involving countries such as Russia, as Goldston in OpenGlobalRights suggests will depend on determining a solid basis of complementarity between us.