By: Richard A. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor
In recent
times the International Criminal Court (ICC) has attracted growing criticism.
Amongst other complaints: that it is inefficient; too slow both with regard to
preferring charges and in its trial procedures; having an anti-African bias;
and being too costly. Some of those criticisms may well be justified but they
are, at least, over-stated.
In this
article I propose to consider some of the positive and negative developments at
the ICC. Before doing so it should be acknowledged that the Court is
comparatively new, has eight situations before it, and has 121 States Parties
subject to its jurisdiction. Many of its procedures are new and novel. Never
before have victims before an international criminal court had representation
in pre-trial and trial procedures. For its judges, registry officials, prosecutors
and investigators much of the work is innovative and challenging. Mistakes have
been made and that is inevitable and part of a learning process.
Most of
the situations before the ICC are not the result of its own initiative. Four
have been accepted at the request of governments (Uganda, the Democratic
Republic of the Congo, the Central African Republic and Mali), two have been
referred by the United Nations Security Council (Sudan and Libya). Only two
situations have been opened at the request of the Prosecutor (Kenya and Cote
d’Ivoire). All of these situations are indeed in Africa but that is because
serious crimes of war have been committed there and the most egregious of those
committed in other continents are not subject to the jurisdiction of the Court
(Sri Lanka and Syria to mention only two).
Some of
the investigations have taken a long time. However, they have been complex and
in some cases cooperation from the relevant governments has been absent or
insufficient. Funding for the Court has been substantial. As other
international courts (and domestic courts) have demonstrated, justice does not
come without substantial financial cost. Thorough investigations and fair
processes are complex and the resources necessary to conduct them are considerable.
In some of
the situations there are a number of arrest warrants that have not been implemented.
That is particularly serious in the situations of Sudan, Libya, and Uganda. The
Court has refused to issue arrest warrants in cases where there was held to be
insufficient evidence and there has been one acquittal after a full trial. Only
three trials have been completed. A number of other trials are presently
ongoing.
Some of
the successes of the ICC are to be found in situations that are not before the
Court. They are the consequence of what is known as complementarity that lies
at the heart of the Rome Statute. It denies the ICC jurisdiction over
situations in which domestic law enforcement agencies are able and willing in
good faith to investigate crimes committed by nationals of that state whose
alleged crimes would otherwise fall within the jurisdiction of the Court and,
if there is sufficient evidence, to prosecute them. In order to encourage such
national prosecutions the Prosecutor of the ICC cooperates with domestic
prosecuting authorities in order to encourage them to investigate and prosecute
crimes that fall within their jurisdiction. This is known as “positive complementarity”.
There are some countries that have sought to follow up and investigate alleged
war crimes in order to avoid the ICC becoming engaged. One example is Colombia.
Many complaints were received by the Prosecutor and they have been regularly
investigated by her office. The former and present Prosecutors have visited Colombia to discuss