- The Washington Times - Friday, May 14, 2010

What a difference eight years haven’t made.

Since its founding in 2002, the International Criminal Court (ICC) has not issued any verdicts or completed a single trial.

Though the court has two trials in motion and five suspects have been arrested, eight suspects in heinous crimes still remain at large.

As the 111 state parties to the ICC prepare for its first review conference in the Ugandan capital of Kampala this month, international legal experts say the court’s record has been mixed and its progress slow.

“People are surprised how slow things have been,” said Michael A. Newton, a law professor at Vanderbilt University in Nashville, Tenn. “Obviously, it takes long to do justice, and these are enormously complex cases, but the process needs to be streamlined.”

Mr. Newton is considered an ICC skeptic, but even vocal supporters, such as Patricia M. Wald, former judge at the International Criminal Tribunal for the Former Yugoslavia, said, “There are ways in which things can be sped up.

“It’s a big deal to get a court up and running, and it takes a lot to get suspects apprehended, so I’m not surprised they haven’t been able to get further along,” Ms. Wald said. “But I don’t wish to be a total apologist for the ICC.

“One of the things they could do to speed things up is to introduce a system of guilty plea, which currently doesn’t exist,” she said.

The ICC was opened as an independent institution in 2002, but its first case was not referred to it until 2004. Referrals must come from national governments or the U.N. Security Council.

In addition, the court’s 1998 Rome statute limits its jurisdiction to cases that cannot be handled by a country’s national judicial system or that a country’s government is unwilling to adjudicate.

Of the five cases now before the court, the Security Council has sent only Sudan’s Darfur conflict, which resulted in last year’s indictment of Sudanese President Omar Bashir.

Mr. Bashir’s arrest is not expected anytime soon. Last month, he easily won re-election in Sudan’s first multiparty elections in 24 years, although the voting process was marred by charges of fraud and boycotts by opposition parties.

Crimes committed during internal conflicts in Africa - the Democratic Republic of Congo, Uganda, the Central African Republic and Kenya, in addition to Sudan - have occupied most of the ICC’s attention.

The first two trials began last year and involve rape, torture and mass murder in the Democratic Republic of Congo. The defendants are Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui.

A third trial - against Jean-Pierre Bemba Gombo for “sexual crimes” in the Central African Republic - is scheduled to start in July.

As part of the ICC’s mixed record, Mr. Newton and Ms. Wald said, the court’s current system for allowing victims to participate in trial proceedings should be clarified and improved.

Some of the questions that have yet to be answered have to do with allowing hundreds of victims seeking access to trials to file motions and question witnesses, Ms. Wald said.

ICC members are required to cooperate with the court, but the court has not been cooperative enough with state parties, Mr. Newton said.

“There are no assurances the court will give them anything - it parachutes in and demands things, but if it has things that can help a country in another case, it’s not required to help,” he said.

Based at The Hague, the ICC has 18 judges and more than 800 staff members, according to its public information office. Last year, its budget was about $135 million, with Japan the largest contributor, followed by Germany, Britain and France.

President Clinton signed the ICC treaty in 2000 but made clear he had no intention of submitting it to Congress for ratification because of concerns that U.S. officials and troops could be prosecuted for political reasons.

President George W. Bush “withdrew” the U.S. signature in 2002, but became more supportive of the court in his second term and helped in its prosecution of Lt. Gen. Bashir.

The court’s highest-profile official has been its chief prosecutor, Luis Moreno-Ocampo, a former federal prosecutor in Argentina who first came to public attention in 1985, when he helped convict five former senior military commanders of mass killings. Later in private practice, he defended victims of human rights violations and controversial figures, such as a priest accused of sexually abusing minors.

William H. Taft, the State Department’s legal adviser during Mr. Bush’s first term, who described himself as an “agnostic” when it comes to the ICC, said Mr. Moreno-Ocampo “has not politicized the court.”

“There have been thousands of complaints filed, including some related to the Iraq war, but he has wisely decided to focus on serious infractions and not get distracted,” Mr. Taft said.

However, Mr. Newton said there has been at least one case with an “appearance of politicization.”

Gen. Bashir’s indictment angered many Africa leaders, and in an apparent effort to calm them down, Mr. Moreno-Ocampo “went out and found a Darfur rebel to charge,” Mr. Newton said.

“The pretrial chamber refused to confirm the warrant of arrest and the charges, the appeals chamber supported that, and the case was dismissed for insufficient evidence,” he added.

Ms. Wald, Mr. Newton and Mr. Taft are members of the American Society of International Law’s task force on U.S. policy toward the ICC.

Questioning whether the court should exist is a “moot point” because it’s an “inescapable reality,” Mr. Newton said.

Ms. Wald said the world needs a permanent criminal court - “ad hoc courts serve their purposes well, but they come and go.”

Mr. Taft said the ICC “is not a great danger to the United States, and on the whole, I’m in favor of cooperating with them, instead of pretending they don’t exist, because they do things we believe in.”

“But we need to see another several years of operation and another prosecutor before we consider joining,” he said.

• Nicholas Kralev can be reached at nkralev@washingtontimes.com.

Copyright © 2023 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide