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International Justice Year-in-Review: Looking Backwards, Looking Forwards (Part 1)

Editor’s Note: We asked editors Beth Van Schaack and Alex Whiting to do a roundup of the top international criminal justice stories from 2015 and what readers should keep an eye on in 2016. This is Alex’s half of the list. You can find Beth’s here.

Out of Africa. In 2015, the Prosecutor of the ICC sought permission from the Pre-Trial Chamber to commence an investigation in the Republic of Georgia. If approved, it would be the ICC’s first investigation outside of Africa. In 2016, the ICC will likely take further steps outside of the African continent: It will no doubt open an investigation next in Afghanistan, and could soon turn its attention also to both Palestine and Ukraine.

On the one hand, these steps may help to mitigate some of the criticisms of the Court for its exclusive focus to date on Africa. At the same time, the prospect of actually getting an accused before the Court from one of these non-African investigations is dim, so there may continue to be a perception of imbalance in the work of the ICC.

After the ICC became operational in 2002, its first nine investigations were all in African countries (Uganda, DRC, Central African Republic I and II, Sudan, Côte d’Ivoire, Libya, Kenya, and Mali), though it has always had a number of ongoing preliminary examinations in non-African states. This has led some to contend that the ICC has become an “African court,” a charge promoted in particular by certain African leaders (e.g., Omar al-Bashir and Uhuru Kenyatta) who have found themselves in the ICC’s crosshairs. At the end of the day, the claim that the ICC has “targeted” Africa is largely unfair. The jurisdiction of the ICC is constrained by its Statute and the Court’s membership, and its focus is also partly an accident of history. Many international crimes committed in Europe and Asia before 2002 have been adjudicated by other international tribunals: the Nuremberg courts, the Tokyo Tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY), and the Extraordinary Chambers in the Courts of Cambodia. Since 2002, however, with a few notable exceptions, most of the crimes within the jurisdiction of the ICC have occurred in the context of conflicts in Africa.

At the same time, the accusation that the ICC is targeting Africa has resonated, even among many ICC supporters, no doubt in part because it echoes a familiar colonial narrative (even though the ICC has generally not been imposed on African countries — with the exceptions of Sudan and Libya — and has many Africans in key positions throughout the Court), and because it underscores that the ICC lacks universal jurisdiction (123 countries embrace it, but major powers like the US, China, and Russia do not). The accusations of bias against Africa have unquestionably taken a toll on the Court’s reputation and legitimacy.

As the ICC commences investigations outside of Africa, some of the Africa-focus criticism may be blunted. But the problem will not completely disappear. All of the potential, new ICC investigations share a feature that will limit the ICC’s ability to bring successful prosecutions: They directly or indirectly involve a major non-State Party to the Rome Statute (Russia for Georgia and Ukraine, and the US for Afghanistan and Palestine). As I discussed in a previous post on Georgia, this will present a host of challenges to the Court as it tries to get major powers outside of its orbit to cooperate with its work. Moreover, not even the State-Parties involved in the conflicts in Georgia, Afghanistan, or Palestine have actually requested an ICC investigation, suggesting that the ICC may encounter even further investigative challenges in these situations. All this to say that while the ICC will commence investigations outside of Africa, it may be a long time before it actually has a non-African accused before the judges in The Hague.

Cases, cases, cases. The ICC’s central mission is to investigate and prosecute cases. In this respect, as the Court begins 2016, it is flat-out with work. It is clear the Court is busy, but there are also reasons to be concerned about how the Court is managing its current workload.

Three cases — against William Ruto and Joshua Sang (Kenya), Bosco Ntaganda (DRC), and Jean Pierre Bemba and four others (CAR) — are presently in trial. An additional trial, against Laurent Gbagbo and Charles Blé Goudé (Côte d’Ivoire), is set to begin at the end of this month. The confirmation hearing in the Dominic Ongwen case (Uganda) will also take place this month, and the one in the Ahmad Al Faqi Al Mahdi case (Mali) will occur in March.

That the Court is busy is a marker of success that should not be underestimated. It is difficult to remember now, but when the Court opened for business in 2002, some wondered whether it would ever have any cases. In its short existence, it has successfully brought suspects to The Hague and has conducted and completed trials. The ICC has established itself, and now most people accept that it is here to stay.

At the same time, its current workload is concerning. The Court seems overly challenged by the cases before it, the result of inadequate resources as well as excessive processes and deliberation. Although the ICC has just moved into its new premises containing three (spectacular) courtrooms, it amazingly lacks the courtroom staff to hold three trials simultaneously. The Registry sought a significant budget increase last year to better meet the needs of the Court, but the request was cut by the Assembly of States Parties (ASP). In addition, the Court has 18 judges, but they are divided among the Pre-trial, Trial, and Appeals Chambers. Many are required to sit on more than one case at the same time, sometimes even on two ongoing trials. As a result, the ICC has had difficulty keeping all of the cases moving forward efficiently. The Ntaganda trial, for example, is on a five-weeks-on, five-weeks-off schedule so other cases can be accommodated.

Moreover, the cases that are before the court are simply taking too long and are overly litigated. The trial of Gbagbo and Goudé is against a former Head of State of Côte d’Ivoire and his alleged co-perpetrator, but the charges involve just five incidents over a four-month period. Nonetheless, it is estimated that the trial will last a staggering three years. In the Ruto and Sang case, the prosecution called just 29 witnesses, but its case lasted nearly two years. The judges are now considering whether the prosecution presented sufficient evidence for the trial to continue into the defense phase. But rather than doing this orally and efficiently, as is now done at the ICTY, the judges required hundreds of pages of written submissions and scheduled four days of hearings, resulting in months of additional delay. Finally, the first of two trials against Bemba (the first is for substantive crimes and the second for witness interference) finished 14 months ago, but the judges have yet to render a judgment.

While there is no question that even the simplest international trial will take time and present challenges not ordinarily encountered in domestic cases, the slow pace of work at the ICC is plainly a significant failing that needs to be addressed. The ASP should avoid false economies and provide sufficient resources for the Court to become fully operational. At the same time, the judges must become more proactive in reducing delays. While the judges are not alone to blame for the inefficiencies of the proceedings, they are without doubt best positioned to drive solutions forward.

Witness intimidation and inadequate state cooperation. During 2015, the ICC continued to confront the dual challenges of witness intimidation and inadequate state cooperation with its investigations and prosecutions, two problems that risk seriously undermining the effectiveness of the Court. It is likely that the Court will continue to face these challenges in 2016 and the years to come.

As I wrote about in a previous post, the Kenya cases have been particularly bedeviled. In the Uhuru Kenyatta case, the judges found that Kenya failed to cooperate fully with the Court, and in the Ruto and Sang cases, the judges made a finding that witnesses had been intimidated and bribed. In connection with the case against Bemba for crimes committed in CAR, the prosecution discovered and charged an apparent scheme (orchestrated by Bemba himself, one of his lawyers, and several others) to pay defense witnesses to provide false testimony to the Court.

The record of the Court in confronting these challenges is very mixed. On the one hand, it has taken steps to counter actions that undermine its work. It continues to seek ways to protect witnesses, it amended Rule 68 of the Rules of Procedure and Evidence in 2013 to allow for the admission of witness statements when the judges determine that witnesses were bribed or intimidated, the prosecution has brought several cases pursuant to Article 70 of the Rome Statute alleging witness interference, and the Office of the Prosecutor sought a finding from the judges and a referral to the ASP that Kenya failed to cooperate in the Ruto and Sang case.

But, at the end of the day, the effectiveness of these steps is limited. Witness protection is expensive and often a hardship on the witnesses themselves. It is therefore not appropriate for all, and it will not always prevent intimidation or bribery. While the judges can accept into evidence the prior statements of witnesses who refuse to testify or change their testimony as the result of interference, it is not clear how much weight they will ultimately accord such statements. (Judges at the ICTY often give limited weight to witnesses’ written statements in these circumstances.) Prosecutions of those who engage in witness interference is an important component of a witness-protection strategy, but such cases are notoriously difficult to prosecute — particularly given the ICC’s limited investigative tools — and are surprisingly resource-intensive. Finally, there is value in calling out and referring countries to the ASP that fail to cooperate with the Court — and Kenya (not uniquely) has shown it will fight hard against such a referral — but ultimately the ASP is unlikely to do much to enforce obligations to cooperate.

All of these specific efforts to combat witness interference and to ensure cooperation are necessary but not sufficient to ensure the Court’s success. At the end of the day, it will be up to states, both those where investigations are taking place and those with influence over those states, to prioritize the work of the ICC and to guarantee that the Court can conduct effective investigations and protect its witnesses.

Independence. The independence of the ICC will always be fragile. Although the Court is a judicial institution, it functions in a political world. Because it relies on states to support its work, it will necessarily be constrained at times by the political imperatives of those states. That’s always been the reality of international justice. But last year saw an attempt by a state to interfere directly with an ongoing case, an effort that was fortunately unsuccessful.

At the meeting of the ASP in The Hague last November, Kenya tried to persuade the other States Parties of the Court to modify a court rule to exclude incriminating evidence from the case against Ruto and Sang. Specifically at issue was whether Rule 68 of the Rules of Procedure and Evidence would apply to the Ruto/Sang trial. The rule was amended in 2013 (after the start of the trial) to admit into evidence previous statements of witnesses who have been bribed or intimidated. The Trial Chamber decided that the amended rule did apply and it admitted a number of witness statements into evidence, a decision that is currently on appeal. But Kenya was not content to let the judicial process run its course, and so it asked the ASP to amend Rule 68 to effectively reverse the Trial Chamber’s decision and to exclude the incriminating evidence from the trial.

This was a step too far, and Kenya’s bid failed spectacularly. The ASP rebuffed Kenya’s attempt to change the Rule to affect the outcome of the Ruto/Sang case. It was an important result in order to protect the ICC’s independence, but a reminder of how the work of the Court can come under attack.

The dog that did not bark: No UN Security Council referral for Syria. An important event for the ICC last year was a non-event: the failure of the UNSC to refer to the ICC the situation in Syria, from which there have been reliable accounts of massive war crimes and crimes against humanity.

When the ICC became operational in 2002, few thought it would receive cases from the Security Council, as three of its five permanent members are non-States Parties (the US, China, and Russia). But in 2005 the UNSC referred the Darfur situation to the ICC, and then in 2011 it referred the situation of Libya. At the time, many saw these referrals as both a recognition of, and a boost to, the stature of the ICC. But more recently, UNSC referrals have come to be seen as undermining events for the Court. The UNSC did not fund the Darfur and Libya referrals, so the States Parties of the ICC have had to bear the full cost of the investigations. Moreover, the UNSC has done little to support the ICC’s work in either investigation. The Court has repeatedly implored the UNSC to force Sudan to cooperate with its Darfur investigation, but the UNSC has done nothing. Accordingly, at the end of 2014, the ICC Prosecutor announced that she was putting the Darfur investigations into hibernation. Finally, the referrals have underscored the perception (or reality) that the Court can only target smaller or medium-sized countries; major powers can agree to send a non-State Party to the ICC without subjecting themselves to the Court’s jurisdiction.

In 2015, the US supported a UNSC referral of Syria to the ICC, but Russia and China vetoed it, and some suspect that the US endorsed the referral only because it knew it would not pass. What is the future for justice in Syria, a question that may (and should) figure in the peace talks beginning next week in Geneva? It is impossible to know, but a few points are worth considering. First, if there is no justice for crimes committed in Syria, it will be a tremendous blow to the legitimacy of the international criminal law project. Given the commitment to accountability of the last 20 years, it is difficult to imagine that impunity could be allowed to stand in Syria. Second, given the problems with and criticisms of UNSC referrals, a Syria referral to the ICC feels like an imperfect, or at least incomplete, solution. And that leads to point three, which is that justice in Syria may require new solutions or institutions, a point that will be further explored in the second part of this post. Maybe a new ad-hoc international or hybrid tribunal? Would the international community support such a move? It would represent an unexpected development, because the hope was that the ICC and national justice mechanisms would fully occupy the terrain, but at the moment those institutions seem insufficient for the task.

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About the Author

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).