Article originally published in IJ Central by Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco on 01 Jul 2012.

If we were to look back to early 1998, it would have been impossible to envision that there would be a Court that could eventually meet all the demands of gross human rights violations at a global level. 4 years after that, the Rome Statute entered into force and the Court had to start from scratch. Starting from scratch with one of the most ambitious missions that any other global organization could have is a very difficult task. So, it would be naive to believe that in 10 years, a nascent and exceptional International Criminal Court (ICC) could have been able to meet all the demands of human rights violations around the globe.  It is not an excuse, but a fact.

We believe that the Rome Statute of the ICC, like any international treaty, is far from being perfect, it is in fact 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, namely, crimes against humanity, war crimes, and genocide. However, we believe that there are some things the Court and States could have done better in these 10 years, such as:

Cooperation: One of the cornerstone principles for the ICC is cooperation. 10 years do not seem to be enough for the ICC to build the support it needs to fulfill its mandate. And we believe it is fundamental to understand that the lack of cooperation, at mostly every level, seems to be the rule and cooperating with the ICC, the exception.

While it should be the other way around: States and international bodies have to turn words into action by increasing their financial, political and technical cooperation with the Court. Also, in order to be effective and truly fight against global impunity, the Court needs be able to rely on the cooperation it can receive from States, international and regional organizations.  By adopting cooperation mechanisms, states will ensure the enforcement of the Court’s work, decisions and rulings. The recent events in Libya prove that there is a serious gap between political speech and concrete actions.

Complementarity: It is fundamental to understand that the primary means of justice for states are their own national justice systems: the ICC is a court of last resort and should strengthen its role in capacity building within national judiciaries. Therefore, it is the primary role of the States to ensure global rule of law by investigating and trying international crimes.

10 years after the entry into force of the Rome Statute, very few States have fully adopted implementing legislation. Although one should welcome regional organization efforts in adopting guidelines or resolutions supporting the role of the ICC, State Parties seem to forget to do their homework. Lack of political will, difficulties to reach an agreement within Congress and the perpetual assessment of the impact of the treaty are continuous and tedious justifications for inaction. In this context, Assembly of State Parties as well as United Nations Human Rights Bodies should take a more proactive attitude towards this.

Universality: Achieving universal ratification of the Rome Statute is important for many reasons. The ICC jurisdiction must increase in order to enhance its long-term effectiveness and legitimacy. Joining the ICC is a big push for States in order to strengthen international justice and national justice systems.

States have also the responsibility to enact legislation in conformity with the principles of the Statute, and criminalizing international crimes and establishing cooperation provisions. In this sense, the Middle East, North Africa as well as Asia continue to be the final frontier to the ICC.

Latin America and the ICC

The ICC is currently investigating 14 cases in 7 different situations. The UNSC referred the situations of Darfur and Libya, granting the ICC the possibility to intervene on two major humanitarian and political crises in recent years. However, the arrest (and detention) of four ICC officials in Libya prove that unwillingness of a State to cooperate can add a new segment on State cooperation: the non-interference on ICC official business. Despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America, the Office of the Prosecutor (OTP) has failed to open an official investigation on countries outside Africa.

Latin America has showed a true commitment towards the principles that build the Rome Statute. Most of the Latin American countries are party to the Rome Statute, thereby demonstrating the commitment from the world and region to ending impunity and adhering to the rule of law. Furthermore, there is an explicit degree of commitment and participation at the ICC from high-level officials from Latin America: the former ICC Chief Prosecutor, Luis Moreno-Ocampo, comes from Argentina; as well, many judges from Latin America serving on the ICC judicial bench, from Costa Rica, from Bolivia, from Brazil and Argentina. But in Latin America there are also situations that we believe could be investigated or watched carefully by the ICC- OTP:

Colombia: Colombia has been under the ICC radar for 7 years now. The Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute and the ICC concluded the Colombian judiciary was capable and willing to carry out investigation of crimes that could eventually fall under the ICC scope.  Civil society groups do not share that same view with the ICC, since they considered that the Colombian judiciary is not addressing past and present international crimes, including gender violence, correctly.

International NGOs like Amnesty International have denounced the lack of reliable official statistics, and the fear around reporting gender-related crimes in the country. “False positives” is another big question mark that remains to be answered and how the Colombian judiciary is acting on this regard.

However, new Chief Prosecutor Bensouda must provide a direct answer determining if the Colombian situation should be advanced to the status of official investigation. Former Prosecutor Moreno Ocampo left office and one of the debts he has left behind is the uncertainty regarding Colombia.

Honduras: NGOs have called the ICC to act, after President Zelaya was forcefully removed from his office in 2009. In their communication, the organizations informed that crimes against humanity being committed since September 2009. In November 2010, then ICC Prosecutor Moreno Ocampo publicly announced his decision to conduct a preliminary analysis of the situation and yet there have been no updates on the actions carried out by the Prosecutor’s office to date. NGO 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.

Mexico: Local NGOs sent several communications to the ICC- especially last year-, asking the Prosecutor to open an investigation in the country. The violence seems to be taking over and with a number of deaths-per-day growing, there has not been any public response on this country at the moment.

Learning to walk

A more transparent policy regarding preliminary examination and criteria for the selection of cases would be also welcomed. Although we know it would be impossible to harmonize standards from dissimilar places like Afghanistan, South Ossetia Colombia or Palestine, as of now the decision to open an investigation seems to reside on elements outside the sole legal framework of the Rome Statute. Prosecutor Bensouda has a tough job ahead. She has 9 years to head one of the most important offices any Prosecutor could head.

Another challenge for the ICC is to work intensively on outreach, communications and public information in order to change the perception of the Court, 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.

Just as Rome was not built in a day, the Rome system still needs time to grow. The ICC will not stop all atrocities from happening but it has already planted a question for potential perpetrators: What if the ICC comes for me?

In this scenario, this anniversary year of the ICC is a milestone for several reasons… to celebrate.

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

Salvador Herencia-Carrasco, LL.M. University of Ottawa. Lawyer with experience in International Law. E-mail: chava@salgalu.com