By Thomas Verfuss
Soon, there might be little or no courtroom activity left at the International Criminal Court (ICC), which could be detrimental to the credibility of the institution. At the same time, there are 15 known fugitives at large (there maybe additional secret arrest warrants) – some of them have been so for many years.
As the trial of Bosco Ntaganda has ended and those of Dominic Ongwen, Laurent Gbagbo and Charles Blé Goudé will end in the foreseeable future, the only real prospects of long-term courtroom activity will be the confirmation of charges hearings for the Malian Al Hassan and the Central-African Alfred Yekatom. Although there are outstanding warrants of arrest against Lord’s Resistance Army commander Joseph Kony, Sudanese President Omar el–Bashir and Libyan Saif Al-Islam Ghadaffi, among others, the ICC has no police force of its own; it depends on states to perform arrests. But states have not only failed to execute arrest warrants, they also fail to put pressure on other states to cooperate with the court. Bashir, especially, has made a habit of trampling over ICC warrants by visiting countries that are parties to the Rome Statute that created the ICC, stretching states relations with the court.
This raises the question how credible the support of the international community for the ICC still is. It is certainly uttered during speeches by representatives of the 123 states parties to the Rome Statute, the founding treaty of the ICC. But states are often seen not to be prepared to risk other (economic or strategic) interests, and otherwise good relations, in order to help the court.
Contemporaneous international criminal justice was set up in the 1990s in reaction to the horrors of the wars in the Balkans and the genocide in Rwanda. Already at the time the question was raised about the true motivation for the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY): some saw it as the idealism to make sure that the worst crimes that shock the conscience of humanity do not go unpunished. Others saw it as a “fig leaf”: Some said that politicians, faced with the public outcry about concentration camps in the Balkans, set up the ICTY so that they could say: “We have done something!” thus avoiding the riskier option of for example military intervention that some demanded at the time.
Already then, the “either idealism or fig leaf” question was wrongly put, because: it was both at the time. For some the ICTY was a fig leaf – and for some the ICC is, like the diplomat the other day who, confronted with the humanitarian crisis his country should do something about, said: “But we are already supporting the ICC!” But others – like the first president of the ICTY, Prof Antonio Cassese or the NGO community supporting the establishment of the ICC – are truly committed to the ideas of victims’ rights and an end to impunity for atrocity crimes. The idealists profited from the opportunities offered by the politicians, some of whom may have made more cynical considerations.
The commitment to human rights in the 1990s was strong enough to not only make the enormous investment of setting up the ICTY, but also to keep up the pressure on for many years to make sure that all fugitives are arrested – not only the “big shots” like Milosevic, Karadzic and Mladic, but also all the “small fish”. The ICC, on the other hand, has had an arrest warrant outstanding against president Bashir of Sudan since 2009. Sudan, as a UN member state, is obliged to carry out a binding Security Council resolution and surrender its head of state to the ICC. Its failure to do so has not only been met with inaction in the Security Council, the very organ that initiated the ICC engagement in Sudan. It has also not lead to actions of individual countries or groups of countries, like sanctions outside the UN system, as was done when Russia illegally annexed the Ukrainian peninsula of Crimea. Economic or strategic interests are often prevailing over human rights these days, contrary to the 1990s. Some diplomats in The Hague who warmly support the ICC, regret that “change of mind” in their capitals – in some of which neo-liberal governments have taken over.
Lack of support not only affects arrests and the yearly battle for the budget. (Some states try to insist on zero growth, though new “situations” [countries investigated] mean a new workload, the kind of new workload that in other cases justified the establishment of a whole new ad hoc tribunal.) It also affects preparedness to cooperate on issues like witness relocation. Intimidation of witnesses was cited as one of the reasons for the collapse of the Kenya cases. It is important that the court has the option to offer its threatened witnesses the possibility of starting a new life in another country, under a new name. This type of relocation is expensive for the state that accepts a threatened witness. With dwindling support for the ICC, states are less inclined to offer relocation opportunities. One high-ranking court official describes this problem as the “bottleneck” for the Al Hassan case about crimes in Timbuktu, Mali. The confirmation of charges hearing in this case is scheduled to start in May 2019. A successful conclusion of these hearings may crucially depend on the preparedness of states to offer a safe haven for threatened witnesses.
The arrest of at least some of the fifteen “ICC fugitives” is crucial for the credibility of the court. Threatened witnesses must get the protection they deserve through relocation in another country, if necessary, when they are prepared to give up their life in their country of origin to serve the justice system for the most serious crimes.
Countries should think out of the box. Threatened witnesses will mostly come from African countries, which all of the ongoing ICC trials are about. One can imagine that many of them would not like to be relocated to Canada or Finland because of the different culture and climate. ICC states parties should think about how the EU handled the refugee crisis and rewarded Turkey for hosting Syrian refugees in their region of origin. Similar mechanisms might be set up for poor African countries that agree to accept and “relocate” threatened ICC witnesses in an environment they are more familiar with.
Arrests are a state party cooperation obligation, according to the ICC statute. Relocation agreements are a matter of supplementary, voluntary cooperation within the Rome Statute system that states are free to engage in or not. There are other aspects of voluntary cooperation where the situation needs to be improved for the sake of the credibility of the whole Rome Statute system, like the matter of provisional release while a case is pending, or final release when a suspect has been definitely acquitted at the appeals stage.
It is a generally accepted principle of law that it is up to judges to decide whether a suspect should be in detention or not. But when the contemporaneous international criminal courts and tribunals were set up, the problem arose that the judges have no territory to release suspects to when they concluded that detention was no longer warranted because there was no flight risk and no risk of intimidation of witnesses or destruction of evidence.
When an international court judge decides to release a suspect, his or her presence in or around The Hague may still be necessary for the purposes of the trial he or she wants or must attend. An ICTY judge once got so angry about the reluctance of the Dutch immigration authorities to accept that a suspect would be roaming free in Holland during his ICTY proceedings that he considered having an apartment built for him in the ICTY premises so that he could live “like at home, like a free man”.
At the ICC, there was the problem about the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba, whom neither The Netherlands nor Belgium wanted as a free man on their territory while he was an ICC suspect, though judges were inclined to release him.
By now, the ICC has secured agreements with only two states – Argentina and Belgium – about provisional release while a case is pending, and the court is lobbying to secure more.
A maybe even more absurd problem of international courts is that suspects may not go free after a final acquittal at the appeals stage, as would be normal in a national system. The International Criminal Tribunal for Rwanda acquitted a couple of suspects who had to remain in the legal limbo of the semi-liberty of “safe houses” for years, because they felt that, in spite of their acquittal, they were not safe in Tutsi-dominated Rwanda, and no other country would take them. At the ICC, the Congolese suspect Mathieu Ngudjolo Chui was arrested by the Dutch police immediately after his final acquittal by the ICC Appeals Chamber, as he did not immediately have a country to go to. (Since then, he has succeeded to build a new life in his country of origin, the Democratic Republic of Congo.)
Until now, only one country – Argentina – has signed a voluntary framework agreement to accept former ICC suspects that have been definitely acquitted and have nowhere else to go. It is just a framework agreement and does not oblige the government in Buenos Aires to accept just everyone. High officials at the ICC Presidency and Registry would welcome the “voluntary cooperation” of more states to offer to host acquitted ICC suspects, to enhance the credibility of the system and to avoid an “Arusha limbo” for more ex-suspects of the international courts system.