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ICC Under the Spotlight
IWPR’s international justice reporter Simon Jennings looks at the International Cr
iminal Court’s achievements since it was founded eight years ago and considers wha
t challenges lie ahead.
By Simon Jennings - International Justice - ICC
7 Dec 10
Simon Jennings
As the trial of former Congolese vice-president Jean-Pierre Bemba Gombo opens at
the International Criminal Court - hailed as the ICC’s biggest success to date -
IWPR’s international justice reporter Simon Jennings looks at the court’s achievemen
ts since it was founded eight years ago and considers what challenges lie ahead.

The ICC has had to face several controversies in recent years. Where do you thin
k its weaknesses lie and what is being done to overcome these?
Gaining the full cooperation of the countries it seeks to serve, as well as the
wider international community, is the major challenge facing the ICC. Without it
s own police force, the ICC relies entirely on individual governments to arrest
suspects, something which several have been either unwilling or unable to do. Th
e court’s authority is heavily undermined by indictees evading capture. Senior mem
bers of Uganda’s rebel force, the Lord’s Resistance Army, LRA, continue to hide out
in the bush of east and central Africa since arrest warrants were issued five ye
ars ago. Meanwhile Sudan’s president, Omar al Bashir, wanted by the court for alle
gedly committing genocide in Darfur, looks set to remain as president and defy t
he court until there is sufficient will either inside or outside Sudan to arrest
him.
Another challenge for the ICC has been to get its message to those on the ground
seeking to benefit from the justice dispensed at Hague court, as well as managi
ng the expectations of those imploring it to be more proactive. While in its ear
ly days it was criticised for neglecting this part of its work, the court has re
cently made some strides in reaching out to affected communities. It has establi
shed regional offices for most of the countries where indictees come from, as we
ll as in Chad to serve refugees from Darfur. A great deal of effort has been mad
e to inform victims - some in extremely remote areas or living in camps - about
the mandate and procedures of the ICC.

The issue of international cooperation with the court remains particularly sensi
tive, for instance, in the case of Bashir. How has this highlighted divisions ov
er the court?
The charging of Bashir with war crimes and crimes against humanity in March 2009
, and subsequently with genocide, has underlined this central weakness of the IC
C. Bashir is the most high profile indictee and the only one charged with genoci
de yet there is little prospect of him ending up in The Hague anytime soon.
In 2009, the AU passed a resolution that its member states would not cooperate i
n the arrest of Bashir. In 2010, Bashir capitalised on this by making public vis
its to Chad and Kenya - both of whom are signatories to the court’s founding treat
y, the Rome Statute, and, according to that document, legally obliged to arrest
him. The ICC faces a real problem here because many of the AU’s members have endor
sed the Rome Statute, but are reluctant to cooperate with the court over Bashir.
Indeed, Bashir continues to defy the court by travelling or threatening to trave
l to those members of the AU he feels will not arrest him.
The issue also points to a wider question: that of genuine backing for the ICC.
Many African states are keen to support the institution and the accountability i
t represents on paper but when it comes to concrete action and the prospect of a
ntagonising one of their neighbours, such as Sudan, they are not inclined to act
. The situation also raises the question of what would happen if certain countri
es were to arrest a powerful political figure such as Bashir. Who would support
them and help them deal with any likely political or even military consequences?

Despite these problems, what can the ICC count among its successes?
The ICC has investigated some of the worst atrocities of recent years and has do
ne so in difficult circumstances of continuing conflict and displacement of peop
le. The court has also attempted to create a new level of international consciou
sness about justice and accountability.
The ICC has been the first international court to fully recognise the importance
of victims of atrocities in the justice process and incorporate them into legal
proceedings. Through their lawyer, a victim can participate in a trial at the I
CC on equal footing with the prosecution and defence. The court has also recogni
sed their suffering by the establishment of the Trust Fund for Victims which can
provide much needed financial support to victims of crimes prosecuted by the co
urt. The process also imposes a burden on defendants, who could be ordered to pa
y money to the victims of any crimes they are convicted of.

Where do its greatest challenges lie in the future?


Cooperation is going to continue to be a thorn in the court’s side. Getting the fu
ll backing of some of the big powers - the US, Russia, China and India - remains
a major challenge for the court. It also needs to persuade a significant body o
f international opinion to prioritise justice as part of the process of conflict
resolution, rather than see it as performing a secondary function.
While the chief prosecutor has made efforts to bring countries on board, other p
riorities within the international community, including at the United Nations, h
ave often taken precedence. For instance, recent international efforts to help e
nsure a smooth outcome of two referenda in South Sudan has seen attention switch
away from Darfur and the atrocities still taking place there.
Another challenge is realising the court’s deterrent function. Many who supported
the creation of the ICC did so in the belief that it would play a part in deterr
ing the commission of war crimes, crimes against humanity and genocide. However,
the extent to which this has been the case is questionable.
A handful of rebel leaders have been charged in the eastern Democratic Republic
of Congo - and some are currently being tried in The Hague – but rape is still ram
pant there. Meanwhile, fierce fighting continues in Darfur despite the indictmen
t of the president.
At the same time, the LRA continue their violent rampage in the Central Africa R
epublic and South Sudan while violence looms in Ivory Coast, even though the ICC
has been watching the situation there closely there for years. With a swathe of
arrest warrants unexecuted, it’s hard to convince those who commit atrocities tha
t the court is not just a dog that barks - but also one that can bite.

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