Presentation at the ICC, The Hague, 26 September, 2006.
Like the other speakers I would like to thank the Prosecutor and his office for their remarkably transparent and consultative practices.
My organisation, the International Crisis Group, works to prevent and resolve deadly conflict, so my comments will be focussed on the conflict prevention role of the ICC’s prosecutions.
The ICC’s success is critically important if we are, in the words of the Rome Statute’s preamble, to put an end to impunity and thus to contribute to the prevention of atrocity crimes.
But the Prosecutor is in an invidious position. Each of his current prosecutions involves ongoing conflicts or their recent aftermath. In each the Prosecutor has to confront claims that his investigations are, or will become, an obstacle to peace.
In an ideal world, the Prosecutor would only investigate past atrocities, not current conflicts. He would deal with situations in which the hostilities had been resolved and robust peace processes were in place. But that won’t be the case for many years, as he is only mandated to deal with crimes committed since 1 July 2002 . Even then he will be repeatedly asked to intervene in live conflicts.
That being the case, the ICC is frequently going to find itself in the middle of peace processes. So what considerations should guide him in such situations?
The starting point is to recognise that prosecution by the ICC is one of the few credible threats faced by leaders of warring parties. But to ensure that this continues to be the case, the ICC must secure convictions to ensure its credibility and effectiveness.
There are two issues here. The first is the bigger picture one that if the ICC is unable to convict perpetrators of atrocity crimes because its prosecutions are consistently trumped by peace processes, then its value as a deterrent will be compromised. The threat of prosecution will only be credible if it is regularly and consistently carried out. Perpetrators will not fear the ICC if they know that they will invariably be able to secure actual or de facto immunity in a peace deal, regardless of the atrocities they have committed in the past.
The second issue is the practical one that until it gets some convictions under its belt, the ICC’s deterrent value will be more theoretical than actual.
Hence in the Congo investigation, where the Prosecutor has an alleged perpetrator, Thomas Lubanga, in custody, it is critically important that this case proceed to trial as expeditiously as possible. Lubanga has been charged with offences relating to the recruitment of child soldiers. Of course, ideally, he would also have been charged with responsibility for systematic rapes, torture and summary executions. However, while it is essential that the Court demonstrate in time that perpetrators of such heinous crimes will be brought to account, the short-term imperative must be for the Court to demonstrate its effectiveness by getting its first conviction. The Prosecutor is right to proceed against Lubanga on those charges for which he has the strongest evidence – even if that means that other appalling crimes aren’t added to the charge sheet for now. Additional charges can and should be brought against Lubanga later. And other parties to that conflict should be charged soon, at which time more broad-ranging charges can be laid.
As the Prosecutor increasingly gets drawn into middle of peace – i.e. political – processes, it is vital that he make it clear to all that his role is to prosecute. While that may appear to be self-evident, the position is not so straightforward when those he is prosecuting are engaged in peace talks. As has been starkly demonstrated in Uganda , in such situations the Prosecutor will face vociferous calls to abandon his investigation or prosecution to enable a peace deal to be made.
But if such political decisions have to be made, they should generally be left to the UN Security Council, which has explicit authority under Article 16 of the Rome Statute to put ICC investigations and prosecutions on hold for a 12-month renewable period. That way the Prosecutor, an officer of the court, can fulfil his judicial mandate, and – in the rare circumstances that intervention is required – the UN Security Council can carry out its peace and security mandate.
In any event, perhaps fortunately for the Prosecutor, his options in such circumstances are somewhat constrained. Under Article 53 of the Rome Statute, the Prosecutor can stop a prosecution if it is in the interests of justice to do so. As the Rome Statute evidences a very strong presumption that the kinds of crimes under the Court’s jurisdiction require effective criminal punishment, the fact that negotiations are underway would not in themselves be sufficient for the Prosecutor to stop his prosecution. At very least he would likely require a peace deal with robust accountability mechanisms for the individuals under prosecution. Robust accountability here almost certainly does not mean customary reconciliation ceremonies. In the event that a state goes further, and exercises its own criminal jurisdiction, in the form of genuine domestic prosecutions of the perpetrators, then the ICC would no longer have the jurisdiction to proceed, as such prosecutions would take precedence under the principle of “complementarity”.
Hence in the northern Uganda prosecutions, peace talks are underway, and may provide an opportunity to end a conflict which has exacted a horrendous toll on the people of northern Uganda over the last 20 years, with some twenty-five thousand children having been kidnapped to become child soldiers, porters or sex slaves, and some 1.7 million Ugandans forced to live in squalid IDP camps.
Strong justice and accountability mechanisms must be central to any agreement that can win domestic acceptance and broader international support. Because of constraints on the ICC Prosecutor, an agreement that calls for the LRA warrants to be put on hold would probably require a UN Security Council resolution to this effect, made pursuant to Article 16 of the Rome Statute. The prosecutions would remain alive, though the Security Council would have the option to renew suspension annually.
And then there is the Darfur investigation. The horrific conflict there – which has claimed more than 200,000 over the last three years – has recently just got even worse. The Sudanese military recently launched a renewed military campaign in the region, and its aircraft bombing towns and civilians, backed up on the ground by Janjaweed and some forces of the former rebel leader Minni Minawi.
And unfortunately for the Prosecutor the international community is utterly divided, with the UN, NATO, the African Union and the Arab League all having different policies and often conflicting policies. Even those states ostensibly strongly in support of a tough international response have competing interests at stake. The US for instance, while taking the lead in calling for action, continues to have a strong intelligence relationship with Sudan , last year flying the head of Sudanese military intelligence, and one of the architects of the Darfur campaign, out to the US for intelligence consultations.
The Prosecutor has been thrust in the middle of this extremely challenging situation. There are no easy options for him as he proceeds with this investigation, as all his choices are constrained.
But it is a critically important investigation, and as such will proceed under very close scrutiny. Like Bill Pace, the convenor of the CICC, I note that the Prosecutor has not publicly complained of any non-cooperation from the Sudanese authorities, so I hope that that means that his team are receiving genuine cooperation on all fronts.
In light of the renewed military campaign, the Prosecutor may also want to consider coming out publicly and warning all parties, government and Janjaweed and rebels alike, that future atrocities fall within the scope of his investigation and those responsible will be held accountable for such crimes.
Of course, the most important objective here should be a speedy investigation and expeditious issuing of warrants against those most responsible for the atrocities in Darfur . That will demonstrate to all concerned the effectiveness of the investigation.
In terms of international criminal investigations it doesn’t get more difficult than Darfur . I sincerely hope that when we next meet to review the previous three years that we will do so with the perpetrators of the Darfur atrocities on trial before the Court.