ICC at 15: International criminal justice is working and needs strong support
This summer, the International Criminal Court – ICC – will be commemorating 15 years of operations, brought about by the entry into force of the Court’s founding treaty, the Rome Statute, on 1 July 2002. The required high number of ratifications was swiftly attained four years after the adoption of the treaty in Rome on 17 July 1998, an extremely short time for an instrument of such importance and technical complexity. This demonstrated that the Court was indeed “an idea whose time had come”.
Soon after, the first judges and first Prosecutor of the Court were elected. Investigations were opened, judicial proceedings commenced and, on 16 March 2006, the first suspect was transferred to The Hague. Other investigations and cases followed. What had seemed an impossible dream only some decades ago became a reality.
Bringing about this big step forward was an arduous endeavour. Ensuring that the ICC continues to develop from now on into a fully mature institution is likely to be as difficult, in particular at a time when global concepts and multilateral institutions are being questioned. To succeed, the Court needs the continuing and strong backing of states, organisations and civil society.
The ICC grew out of the compelling moral imperative to put an end to impunity for the individual perpetrators of heinous acts that shock the conscience of humanity. As declared in the treaty itself, such acts were considered to be a threat to peace, security and well- being of the world, and justice an essential contribution to their prevention.
Without any doubt, the creation of the Court is one of the greatest accomplishments of multilateral diplomacy. It represents a common vision of states and civil society from all continents that certain crimes are so odious that their prosecution must be assured by a strong international institution of a general and permanent character.
Yet, the ICC, precisely because of its global nature, cannot and should not do all this work on its own. The Court was set up to investigate and prosecute perpetrators of war crimes, crimes against humanity and genocide only if national systems cannot or are not genuinely doing so. This complementary system protects both national sovereignty and the ability of the Court to exercise its functions in multiple situations across the world. At the same time, the system encourages States to strengthen their own justice systems to ensure that crimes are effectively addressed closer to those directly affected by them.
In fifteen years of operations, the ICC has increasingly established a leading role amongst the international mechanisms that can respond to atrocities affecting millions of civilians, including many that are forced to flee from the violence. Both governments and the UN Security Council have requested the intervention of the Court, which has opened investigations in nine countries and conducted trials maintaining full independence and impartiality.
The ICC has proved in practice that it is capable of holding accountable, in a fair judicial process, perpetrators of the gravest crimes, including the use of child soldiers, armed attacks on civilian villages, sexual violence in conflict and destruction of cultural heritage. The Court has prosecuted State actors as well as non-State actors, including those with links to terrorist organisations.
The ICC upholds the rights of the defence. Where evidence has not been sufficient to support a conviction, defendants have been acquitted.
The Court goes to great lengths to reach out to victims and to make sure they are effectively represented. Victims can participate in the proceedings and seek reparations for the harm suffered. A Trust Fund for Victims affiliated with the Court collects donations to benefit victims and has already provided assistance to more than 450,000 persons in countries under the Court’s investigations.
Above all, the ICC has helped place the concept of justice and accountability permanently on the international agenda. A permanent institution for addressing the gravest crimes has inspired the fight against impunity worldwide. Numerous States have harmonised their national legislation with the Rome Statute to make domestic prosecutions possible. Justice and accountability are today recognised as an integral element of conflict resolution and post-conflict recovery.
However, in order to sustain the historic gains made in international justice, the Court needs sufficient and concrete support to investigate and prosecute. The Court depends on cooperation to collect evidence, arrest suspects, protect witnesses and enforce its sentences. The Court also needs sufficient financial resources to accomplish its goals.
The Court recognises that cooperation may diminish if potential supporters lose confidence in its ability to deliver high quality justice. Cooperation and performance are interrelated. The Court has been striving to enhance its efficiency and effectiveness through reforms to improve methods of work and expedite judicial proceedings. Concrete results are already visible.
The ICC is a huge achievement, an institution that represents a promise of justice and protection for victims of atrocious crimes. Still, the Court is far from realising its full potential. Demands for it to exercise its functions with relation to additional situations keep growing. Some of them are outside its reach as the Court, with 124 States Parties, is not yet universal. In order to respond to the expectations, the Court must have the legal and practical means to do so.
The past fifteen years have shown that international criminal justice works, and is sorely needed. The International Criminal Court is a bastion of hope in a troubled world. The commemoration of fifteen years of activities at the ICC is a good occasion to urge the global community to redouble efforts to support it.
About the author
Silvia Fernández de Gurmendi has been President of the ICC since March 2015, having become an ICC judge on 20 January 2010. Judge Fernández de Gurmendi greatly contributed to the creation of the ICC and was instrumental in the negotiations of the complementary instruments of the Rome Statute - ICC’s founding treaty - as chair of the Working Group on Rules of Procedure and Evidence and the Working Group on Aggression.
This article was first published in the Huffington Post.
