Court of last resort

As South Africa announces plans to withdraw from the International Criminal Court, Christina Warner looks at the court’s breakthrough cases and new focus on children in conflict, amid challenges to its credibility

Enacted in 1998 and opened in 2002, the International Criminal Court (ICC) has a Herculean task ahead; hearing details of some of the most heinous global conflicts in modern times. 

The court has set a number of precedents this year, placing its focus on the needs of both victims of sexual and gender-based crimes and children involved in conflict, but all the while coming under fire for both its legitimacy and credibility.

Court of firsts: setting precedents

The ICC has both heard and set a number of firsts, concerning charges, pleas and sentences – as well as the type of defendant brought before the court and the impact of its findings on international consideration of war crimes and crimes against humanity.

In March 2016, for example, the court heard the ground-breaking case of The Prosecutor v Jean-Pierre Bemba Gombo (ICC-01/05-01/08) which considered incidents of sexual and gender-based violence. The case brought the court’s focus firmly on rape and sexual violence as war crimes. Bemba, the former vice-president of the Democratic Republic of the Congo, was sentenced to 18 years’ imprisonment on 21 June as a result of his involvement. The case was a first for a further reason; by employing the doctrine of criminal responsibility, the ICC was clear in its message that although Bemba may not have been the individual to undertake the act, he was equally as responsible as those he had under his military command who did. Bemba was found guilty of instructing his private army, the Congolese Liberation Movement, into neighbouring Central African Republic from October 2002 to March 2003.

On 27 September, the ICC delivered its ruling on its first case involving both a guilty plea and charges of religiously motivated destruction in The Prosecutor v Ahmad Al Faqi Al Mahdi (ICC-01/1201/15). Al Mahdi was sentenced to nine years’ imprisonment for his role as member of the militant group Ansar Dine and the destruction of historic mausoleums and a mosque in Timbuktu, Mali. The court was faced with a guilty plea and, accordingly, the implementation of a suitable sentence at a time of heightened awareness of religiously motivated damage. The destruction of cultural property and heritage through religious motivation has been widely publicised in the likes of Syria, Iraq and to a lesser extent Libya. The conclusion of the trial against Al Mahdi came at a particularly poignant time. This case was also the first time the court had heard a case involving an accused with links to Al Queda.

Focusing on children involved in conflict

The Office of the Prosecutor at the ICC published its Draft Policy on Children earlier this year. The policy was compiled to guide efforts to address international crimes under the Rome Statute against or affecting children. As well as the Prosecution Division’s interaction with children during the course of their investigations, the procedural aspects of the division’s work will also be guided by the proposed policy. Its primary purpose is to outline and establish a ‘child-sensitive approach’ to all aspects of the work undertaken by the Office of the Prosecutor. Placing the spotlight firmly on the impact and effects of conflict upon children, prosecutions involving child casualties are well known for their challenges. Notorious are the complications in locating victims which may be as a result of displacement or equally problematic are issues which have recently become synonymous with the entrance of Syrian child refugees into the UK and the verification of age and identity.

The court’s chief prosecutor, Fatou Bensouda (pictured above, right), outlined the purpose of the policy as being one to consider some of those most vulnerable in society ‘children with arms’, but also ‘children affected by arms’. Evolving case law at the ad hoc international criminal tribunals of Yugoslavia and Rwanda have clearly heard the consequences and impact of conflict on children, both during the period of unrest and the long-term after-effects on them as individuals and the role they play as now adults, in their respective communities. Forced displacement, exploitation and often being witness to the death of family members carries a devastating lifelong impact for many children involved in the literal crossfire. Whilst boys and adolescent males are likely to fall victims to the forced recruitment by rebel forces as child soldiers, they can spend years being ‘trained’ and undertaking the instructions of those in senior roles to detrimental physical and psychological effect. After years away from family, often subjected and being witness to inhumane treatment, it is difficult for them to reintegrate into their communities upon their return.

Breakthrough cases at the ICC, such as that of The Prosecutor v Thomas Lubanga Dyilo (ICC-01/04-01/06), who was found guilty in March 2012, heard of the widespread forcible conscription of children under the age of 15 years whilst leading the Union of Congolese Patriots during bloody conflicts in the Democratic Republic of the Congo from 1999 to 2007. The ICC is set to hear the trial of Dominic Ongwen in December and his role as a member of guerrilla group, the Lord’s Resistance Army, throughout Uganda from 2002 to 2005 (ICC02/04-01/15). The enlistment of child soldiers by the group has been widely reported by both human rights charities and media worldwide. Girls are more likely to find themselves particularly vulnerable and are often subjected to sexual exploitation and forced domestic servitude. For example, the International Criminal Tribunal for the former Yugoslavia’s (ICTY) case of Kunarac et al in 2001 (IT-96-23 & 23/1), which heard details of girls as young as 12 years of age becoming victims of sexual violence whilst detained in a ‘rape camp’ near Fo

a, Bosnia Herzegovina. Particular emphasis was placed on the girls’ defencelessness whilst in detention. The ICTY found that ‘systematic rape’ and ‘sexual enslavement’ in a time of war was a crime against humanity and second only to the war crime of genocide. These findings resulted in the consideration of young girls being granted special protection due to often becoming soft targets during conflict. Although the ICC published its Policy Paper of Sexual and Gender-Based Crimes in July 2014, the current policy emphasises the needs of girls and young women likely to become victims of these types of crimes during times of conflict.

Criticism of the ICC

The ICC has come under some scrutiny by the African Union for the court’s alleged focus on sub-Saharan Africa. All current investigations, including those situations in the Democratic Republic of the Congo, Uganda and Central African Republic (but aside from the situation in Kenya), were referred to the court by the states themselves or by the UN Security Council. The ICC has rebutted these criticisms as being unfounded and that its investigations are only carried out where requests or referrals are made and not by the discretion of the court itself. The ICC has also been candid about its jurisdiction and its role as a ‘court of last resort’ and that cases before it would be unable to be dealt with locally, so legitimising the court’s presence.

Most recently, South Africa has proposed a departure from the ICC’s jurisdiction, prompting international disappointment. Labelled by human rights’ groups as being a ‘betrayal to millions of victims of human rights violations’, the proposals have cast a shadow over both the ICC’s relationship with the African nations as well as the ease with which their jurisdiction can be called into question. The fears are such that other nations will follow in proposing a departure from the Rome Statute at a critical time in the pursuit of accountability of war crimes and crime against humanity.

The court has also been accused of unnecessary involvement on the back of neo-colonialism by the likes of Sudanese president, Omar al-Bashir. Al-Bashir has gone as far as to argue that the ICC’s activities contravene Sudanese national sovereignty. This is unsurprising as the ICC has been refused access to investigate the situation in Darfur on the ground by the Sudanese authorities. The ICC must also strike balance between reliance on domestic cooperation and the grant of immunity of governmental officials. For many African political leaders it may prove beneficial to invite the ICC’s involvement in order to not only eliminate their opposition but to gain immunity for themselves. This has been clearly demonstrated by Ugandan president Yowari Museveni and the country’s conflict with rebel forces in the north of country. The ICC must remain current in its awareness of the challenges it faces regarding questions of its credibility and relevance. International expectations remain focused on the court’s role as adjudicator of global war crimes.

Contributor Christina Warner, 10KBW

Author details: 
Christina Warner

Christina practises in crime and family and has a particular interest in matters with an international or cross-jurisdictional element. Christina has recently returned from a six-month secondment at the International Criminal Court, The Hague.