Publicado originalmente en IJ Central.

10 years on and the ICC is yet to find its place in the world

By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco

2012 marks the tenth anniversary of the entry into force of the Rome Statute; it is an appropriate time to make a critical, yet constructive, balance of the most important international organization created since the United Nations. Needless to say, when the Rome Statute was adopted on July 17, 1998 followed by its swift entry into force on July 1, 2002, expectations were high. But it would prove impossible for a nascent and exceptional International Criminal Court (ICC) to meet the demands of human rights violations around the globe.

A decade in a nutshell

Almost 10 years after its entry into force, muchof that enthusiasm has been lost, replaced with demands for the ICC to begin to fulfill its duty. But it is not easy to create an institution from scratch, especially when the Court’s mandate is the “power to exercise its jurisdiction over persons for the most serious crimes of international concern”.

As of today, 120 countries have ratified the treaty and the voices criticizing the existence of the Rome Statute have substantially diminished. The ICC is currently investigating 14 cases in 7 different situation countries, and during the 2010 Review Conference the Crime of Aggression was adopted. The United Nations Security Council has referred the situations of Darfur and Libya, granting the ICC jurisdiction over two of the most desperate humanitarian and political crises in the 21st century. In addition, the ICC has triggered the so-called “peace vs. justice debate”, concluding that justice and peace are not in existential opposition.

Despite these significant achievements, the ICC is yet to conclude a single judgment (the ruling on the Lubanga case is expected in the coming weeks), the Office of the Prosecutor (OTP) has failed to open an official investigation in any country outside Africa, despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America. Furthermore, the final drafting of the Crime of Aggression could suggest that it will take a long, long time for this crime to come into force.

In this context, 2012 could not be any less welcoming

The global economic crisis hampered the increase of its annual budget needed to conduct more investigations in the field; the last election of six ICC judges at the Assembly of State Parties showed old and bad habits by States struggling to elect their own officials and the recent release of Callixte Mbarushimana because of deficiencies in the way the OTP handled the case. These have triggered a number of criticisms towards the ICC.

Implementation and Complementarity: Who helps whom?

One of the most important aspects in the adoption of the Rome Statute is the principle of complementarity and the need for States to adopt implementing legislation regarding international crimes and judicial cooperation with the ICC. This has prompted countries around the world, including those under preliminary examination and situation countries, to discuss and/or enact laws regarding the application of International Criminal Law, as well as the triggering of national prosecutions.

Perhaps it is Latin America where the most significant progress has been made in this field, both at the national level as well as within the framework of the Inter-American Court of Human Rights. Despite the fact that most cases in this region concern international crimes perpetrated outside the temporal jurisdiction of the ICC, the significance of the Rome Statute has prompted this significant judicial and legal accomplishment.

However, this cannot be considered to be enough. As a court of last resort, prosecuting only those alleged to be most responsible for committing the most heinous crimes, the ICC should also work to strengthen its role in capacity building within national judiciaries. If the Court aims to comprehensively strengthen the current international justice system and the rule of law, it must work (without compromising its independence) to ensure that State Parties are capable of investigating and prosecuting international crimes.

From Preliminary Examination to Official Investigation: No clear standard, no clues, lost efforts…

One of the major criticisms that academics and NGOs have made of the ICC and the OTP is the lack of a clear policy regarding the identification of situations that may lead to an official investigation by the Court. Although it would be impossible to harmonize standards for places as different as Afghanistan and Colombia or Palestine and Nigeria, as of now the decision to open an investigation seems to reside on elements outside the sole legal framework of the Rome Statute.

Colombia, continued Unresolved Business

Colombia has been under the ICC radar for 6 years now. Its domestic Criminal Code has a substantial regulation regarding international crimes. But, the country has been suffering an internal conflict for more than four decades; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic.

In 2006, the OTP declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against […] paramilitary leaders, politicians, guerrilla leaders and military personnel.” Later, the OTP added that it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia. But the Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute.

After back and forth, meetings and exchange of information, the ICC concluded the Colombian judiciary was both willing and able to carry out its own investigation of the crimes. Therefore, the situation in the country is classified as a “situation under analysis.” In its December report on Preliminary Examinations, the OTP states that “There is no basis at this stage to conclude that the existing proceedings are not genuine”.

However, civil society organizations consider that the Colombian judiciary is not addressing past and present international crimes, including gender violence, correctly. Despite several visits by the OTP and other ICC officials, local NGOs continue to call for ICC action in Colombia, with as yet no official response from the Court.

Honduras, the Forgotten Coup

Honduras is party to the ICC and seven years after ratifying the Statute, President Zelaya was forcibly removed from his office by the military in 2009. The Head of Congress, Mr. Roberto Micheletti was appointed as provisional President, and served until Porfirio Lobo was elected President of Honduras later that year.

NGOs sent communications to the ICC on crimes against humanity being committed since September 2009. But in November 2010, the Argentine ICC Prosecutor Luis Moreno-Ocampo announced publicly his decision to conduct a preliminary analysis of the situation. Even though his decision was welcomed, there has not been any update on the actions carried out by the Prosecutor’s office to date.

NGOs continued to call on several occasions for the protection of human rights defenders, journalists, and social activists. Human Rights Watch (HRW) has also shed light on police brutality, lack of accountability for human rights abuses committed in the context of the coup, and lack of judicial independence.

Before turning 10…

In spite of the above, we must not forget that the Rome Statute is the most important instrument presently available in the international criminal justice system to prevent mass atrocities and to bring justice to victims of heinous crimes. It is also the first institution to put forward high standards in terms of monitoring gender crimes, fairness of proceedings and victims’ rights.

The challenges of the ICC include the efforts to continue the ratification process of the Rome Statute in the Middle East and the Asia-Pacific, to work in the strengthening of national judiciary and to deliver rulings that will become a benchmark to judges worldwide. In this scenario, a more transparent policy regarding preliminary examination and criteria for the selection of cases would also be welcomed.

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Mariana Rodriguez-Pareja. Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia Carrasco is the Legal Adviser to the Andean Commission of Jurists. E-mail: salvadorherencia@yahoo.com