Sixteen Years of the Rome Statute: Progress and Concerns

Last July 17 we celebrated the International Justice Day, commemorating the adoption of the Rome Statute in 1998, which created the International Criminal Court (ICC). The ICC is the only permanent international tribunal responsible for investigating and prosecuting those individuals that are accused of committing serious international crimes, namely genocide, crimes against humanity, war crimes, and aggression.

The goal of the International Justice Day is to commemorate the efforts of the international community to combat impunity and try the leaders responsible for crimes that threaten peace, security and well-being of humanity. It is also an opportunity to reflect on the advances and challenges of International Criminal Tribunals, in particular the ICC.

The ICC has faced its share of criticisms, the most common of which refers to the geographic origin and racial identity of those that the tribunal is investigating, as all eight situations under investigation stem from African countries, and all the suspects are black. This has caused various authors and regional leaders to argue that case selection has been racist, and ask whether the ICC is truly an international tribunal, or if the decisions to open investigations are motivated by interests distinct and less noble than obtaining justice.

The Court has also been criticized for issuing only two first-instance decisions throughout its twelve years of existence, and obtaining these decisions at a much higher cost than the International Criminal Tribunals for Rwanda and the former Yugoslavia. The approximate cost per suspect in each case in the ICC has cost 60 million USD, considerably higher than the cost per suspect in the International Criminal Tribunal for Rwanda (11 million) and the former Yugoslavia (4.3 million).

However, when considering costs, we should recall that the Rome Statute created an organization with a broad mandate and jurisdiction, which must undertake very complex cases and situations, which involve a large number of victims, geographic locations, and crimes.

Additionally, the creation of the International Criminal Court represents an important step toward ensuring criminal procedural rights, as the Rome Statute includes guarantees such as non-retroactivity of criminal law and the principle of legality, whose absence was questioned and criticized in ad hoctribunals.

The Court’s decisions, the Rome Statute, and the dispositions that regulate ICC activities have achieved important progress in international criminal law. One of these advances, the development and application of the principle of complementarity, which states that the ICC does not replace national courts, but rather acts in those cases in which States fail to investigate or prosecute individuals that have committed one of these crimes. Thus, the responsibility to prosecute such individuals falls primarily on States.

Additionally, the ICC has made great strides in the definition of the context of crimes within its jurisdiction, in particular the context of war crimes. Although these crimes had been addressed by other tribunals, the elements that make them up had not been thoroughly developed, as was done in the first decisionof this tribunal against Thomas Lubanga Dyilo. This decision was also the first regarding forced recruitment of minors, which set a precedent that even local courts have adopted.

Finally, the ICC has made significant progress regarding the issue of victims. Prior to the ICC, no international or mixed tribunal had incorporated the direct participation of victims, with independent legal representation, into the totality of its proceedings. The participation procedures of the ICC, allow victims to express their perspectives, and, in the case of a guilty verdict, to request reparations from the independent Trust Fund for Victims.

However, to date, victims have not received reparations. In the case of Lubanga, the ICC issued a decision establishing the principles and procedures to be applied to reparation, but did not make a decision regarding individual application to victims. Rather, the ICC sent such decisions to the Trust Fund for consideration, noting that the defendant was declared indigent. In the case against Katanga, the Court has only now begun to consider issues regarding reparations, given that the defendant dropped his appeal in June of this year.

The ICC has a high bar to meet in terms of expectations and goals, and has a long way to go in order to develop standards and concepts in its decisions that may be uniformly applied in later cases. Nonetheless, the existence of a permanent court to investigate and prosecute those most responsible for crimes that would normally remain in impunity is an important step forward.