International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2012 Issue

Global Judicial PERSPECTIVe


The Tenth Anniversary of the International Criminal Court

Richard J. GoldstoneBy: Richard J. Goldstone, Former Justice of the Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor

On July 1, 2012, the International Criminal Court (ICC) celebrated its tenth anniversary. This occasion provides a good opportunity to reflect on the achievements and problems of this still very young international institution.

At the outset it must be recognized that the ICC had to be set up from scratch and with little precedent on which to rely.  The judges and the Chief Prosecutor were elected by the Assembly of States Parties. They, together with the Registrar, were required to hire appropriate experts for each of its organs. While there were lessons to be learned from the experience of other international criminal courts, the work of the ICC was different in important respects.

In the first place, the other courts were given a precise mandate to investigate war crimes in specific countries. The mandate of the ICC relates to war crimes that might be committed in any country or by any person subject to its jurisdiction. This means, at present, that the Court has jurisdiction over 121 countries and nationals from those countries. It must decide whether to investigate war crimes referred to it by governments of member states and by the U.N. Security Council, and those that the Prosecutor on his or her own initiative might wish to begin. Mechanisms and policies to deal with these initiatives had to be worked out and appropriate officials had to be appointed to handle them.

Second, the ICC and especially its judges and registry were required to work out the modalities of dealing with and implementing the extensive rights given to victims by the Rome Statute. They are entitled to be represented at all stages of investigations and trials. There is the potential for conflict with the efficient investigations by the Office of the Prosecutor and, more importantly, the fair trial rights of defendants. It is one thing for a defense team to oppose a well resourced prosecution. It is another to cope with teams of lawyers appearing for groups of victims. I do not question the right of victims to be represented and for their concerns to be taken into account by the ICC. but, as has been recognized by the judges, it is essential that the rights of all parties should be balanced against each other. The primary concern, I would suggest, should be that every defendant’s right to a fair trial should in no way be compromised. This is an issue of some complexity and it will take some years for appropriate rules and practices to be developed.

Third, the Court, in pursuance of the principle of complementarity upon which the ICC is founded has to be concerned about the standards of justice in any country sought to be investigated. The primary question is whether that country is able efficiently to investigate and try the alleged crimes in its own domestic courts. If it is then complementarity dictates that such investigations and trials should be the sole responsibility of domestic courts. The ICC would in such a case have no jurisdiction. It goes further. In situations where the domestic system is able to take care of such investigations, the ICC would be obliged to render assistance to the domestic authorities in an endeavor to make the investigations and proceedings as efficient as possible.

Fourth, the Office of the Prosecutor has to consider and make judgments on many thousands of complaints that have been received by it each year. Many of those complaints can be summarily rejected where they do not fall within the jurisdiction of the Court. There are many, however, that require more careful consideration.

Finally, the ICC has been deprived of the active support of the United States. I know from my own experience as Chief Prosecutor of the Yugoslavia and Rwanda Tribunals how important and, indeed, crucial, it was that those Tribunals had the full support and cooperation of the US. There are many examples of that support that could be listed. I content myself with one - the arrest and transfer for trial of high level defendants such as Slobodan Milosevic and senior Croatian generals. But for the financial and economic power of the US they would certainly not have stood trial in The Hague. It is much to the credit of the US that the Yugoslavia Tribunal has succeeded in having every one of those indicted by it appear for trial. The ICC does not have its own means of implementing its orders and executing arrest warrants issued by it. It is entirely reliant on the assistance of governments.

These are all situations that were not faced by any courts that came before the ICC. It goes a long way to explain the size of the staff of the ICC. Members of the Office of the Prosecutor and the Registry are required to travel to a large number of countries in consequence of references from governments, the Security Council and in addition in considering whether the Prosecutor should refer cases to the Court on his or her own initiative.

It is not appropriate or fair to compare the record of the ICC to any of its predecessor institutions. That said, however, there have been unfortunate delays and inefficiencies in some of the cases before the Court. It should not have taken ten years for the first conviction, that of Thomas Lubanga Dyilo, who was found guilty of recruiting child soldiers. Only on July 10, 2012 was he sentenced to 14 years imprisonment. As appears from the judgment of the Trial Chamber, some of the delays were the result of inefficiencies and inappropriate decisions taken by the Prosecutor. While unfortunate, those problems are the result of human error and there is every likelihood that they will be avoided in the future.

I hope that due consideration of the issues I have raised, and there might well be others, will serve to temper many of the criticisms that have greeted this tenth anniversary of the ICC. It should also be taken into account that within the next few years other important international criminal courts will have completed their work and will no longer exist - I refer here to the United Nations ad hoc tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone. As the only international criminal court, the ICC will deserve support  and assistance from all governments that recognize that our global world requires the withdrawal of Impunity for serious war crimes, and that victims are entitled to the recognition and acknowledgement that can only be provided by criminal prosecutions. This is an endeavor that deserves the favorable consideration of all supporters of justice and of the international rule of law.

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