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The International Criminal Court (ICC) was established by the Rome Statute and aims to deal with the most serious crimes of concern to the international community as a whole. There are five elements rendering the investigation of war crimes, crimes against humanity, and genocide at the ICC distinct from common criminal investigations: first, the gravity of international crimes creates challenges to cover all crimes at stake and to meet the expectations of all victims. Second, the size and type of the organizations responsible for crimes impacts in different ways on the focus of the investigation. Third, protecting persons at risk due to their interaction with the Court is a particularly challenging requirement. Fourth, the Court highly depends on cooperation from national jurisdictions, given the lack of enforcement mechanisms inherent to the Rome Statute. Fifth, investigations are often performed in the context of ongoing conflicts where the “peace versus justice” debate impacts on the willingness to support investigations. Criminology could support international investigations and prosecutions in various ways: it could assist in measuring scale and impact of crimes. Furthermore, it could develop models to analyze and prove the role of the most responsible perpetrators. In addition, it could map links between organized crime and conflict economies. Finally, criminology could develop tools to assess the effectiveness of the justice system created by the Rome Statute and the ICC as part of that system.
International criminal justice has come a long way from the International Military Tribunals of Nuremberg and Tokyo via the ad hoc International Criminal Tribunals for Rwanda and the former Yugoslavia, and the hybrid international tribunals for Sierra Leone and Cambodia to the final emergence of the International Criminal Court (ICC), the first permanent international criminal court in the world (Schabas and Bernaz 2011). The ICC, which is based on the Rome Statute, an international treaty adopted in 1998 in Rome, became operational in 2002. The ICC’s capacity of being the first permanent international criminal court in the world brings with it one major difference compared with previous tribunals: the former focused primarily and are still focusing a posteriori on events well defined and limited in terms of time and place. By contrast, the ICC has been assigned a dual role: through having jurisdiction over the most serious crimes of concern to the international community, the Court shall not only end impunity by bringing the perpetrators of past crimes to justice. In addition, the Court is intended to deal with ongoing crimes and contribute in this dual way to the prevention of crimes. These crimes may comprise a broad variety of offenses, often occurring in the context of prolonged armed conflicts or protracted violence in different parts of the world.
As a consequence, the ICC’s Office of the Prosecutor (OTP), with a workforce of almost 300 staff from over 80 countries, deals with numerous “situations” in most diverse countries at the same time. As of April 2012, seven situations are under investigation before the Court (Uganda, Democratic Republic of the Congo [DRC], Central African Republic [CAR], Darfur, Kenya, Libya, Coˆ te d’Ivoire). Fifteen cases have been brought before the Court, of which six are currently at trial stage. Eight situations are currently under preliminary examination in four different continents (Colombia, Honduras, Guinea, Georgia, Afghanistan, Nigeria, Korea, Mali), meaning that the OTP is analyzing information to determine whether an investigation should be opened or not. In addition, as of 3 October 2011, the OTP had received 9,303 communications in which individuals or organizations have submitted information on alleged crimes potentially falling within the jurisdiction of the Court.
While the ICC’s scope may appear relatively broad at first glance, there are important limitations as to when and where the Court can intervene. First, the Court has jurisdiction only over crimes having occurred since 1 July 2002. Next, the Preamble of the Rome Statute proscribes that the ICC only deals with “the most serious crimes of concern to the international community as a whole.” These are genocide, war crimes, and crimes against humanity. In addition, the Court will be able to exercise jurisdiction over the crime of aggression once the provision adopted by the Assembly of States Parties enters into force in the future. Furthermore, the ICC can only investigate and prosecute individual persons, as opposed to organizations as a whole. Finally, other than where the Security Council refers a situation, the Court’s treaty-based personal and territorial jurisdiction does not extend its reach to all 193 countries in the world. While a number of major States such as the USA, Russia, and China have not yet joined the Rome Statute, the ICC has witnessed a steep increase from 60 States Parties in 2002 to 121 States Parties as of April 2012.
There are three ways for the OTP to become active. First, a State Party can refer a situation to the Court, as happened in the Democratic Republic of the Congo (DRC), Uganda, and the Central African Republic (CAR) (Rome Statute, Art. 13(a), 14). Second, the Prosecutor can open an investigation proprio motu subject to the authorization of the Pre-Trial Chamber (Rome Statute, Art. 15). For both a State Party referral and proprio motu authorization, the Court can only exercise jurisdiction if the alleged crimes occurred on the territory of a State Party or were committed by a national of a non-State Party or on the territory of a non-State Party which has lodged a declaration accepting the Court’s jurisdiction as in the case of Coˆ te d’Ivoire (Rome Statute, Art. 12). Third, the UN Security Council can refer any situation to the Court pursuant to its Chapter VII powers under the UN Charter, including in relation to a non-State Party, as happened in 2005 with Darfur, Sudan, and in 2011 with Libya (ICC Statute, Art. 13(b)). Irrespective of how a situation is brought before the Court, in all three instances, the Prosecutor must be satisfied that the information available provides a reasonable basis to proceed with investigations (Rome Statute, Art. 15(3), 53(1)). In any other situation not covered by any of the above mentioned, the Court cannot become active.
The Rome Statute also sets as an admissibility requirement that any case brought forward for prosecution must be of sufficient gravity (Rome Statute, Art. 17(1)(d)). In addition, the ICC can only proceed with a specific case if the State concerned is either inactive or otherwise unwilling or unable to carry out genuine proceedings (Rome Statute, Art. 17(1)(a)–(c)). This touches on one of the most fundamental principles of the Rome Statute, namely, complementarity. The Court is designed to complement national criminal justice systems, not replace them. Therefore, the ICC functions as a court of last resort, which should only become active in the exceptional situations foreseen in the Statute.
All these aspects and additional ones to be discussed in-depth in the following render investigations and prosecutions by a permanent international tribunal distinct from those conducted by either national or hybrid tribunals. This research paper will identify five main peculiarities: the gravity of crimes, the size and type of alleged responsible groups, the protection challenges, the international cooperation, and the “peace versus justice” debate. It will also assess to what extent criminology could become more involved in addressing these challenges, despite the fact that it has been rather reluctant to study international crimes so far (Haveman and Smeulers 2008). Finally, one remark is in order: the fact that the jurisprudence is still developing creates a specific challenge as such. However, this aspect will not be dealt with here, as it is not idiosyncratic to international investigations, but rather related to the emergence of a new legal framework.
Four fundamental principles define the OTP’s strategy: positive complementarity, focused investigations and prosecutions, addressing the interests of victims, and maximizing the impact of the Office’s work (OTP 2010a). The OTP’s action is further guided by three key notions: independence, impartiality, and objectivity (OTP 2010b). That is, the OTP shall act independently of “instructions from any external source” according to Art. 42(1) Rome Statute. Furthermore, from the notion of impartiality implicit in Art. 21(3) of the Rome Statute, it follows among others that the Office shall “apply consistent methods and criteria irrespective of the States or parties involved or the person(s) or group(s) concerned” (OTP 2010b). Finally, objectivity in accordance with Art. 54(1) Rome Statute means that the OTP must investigate incriminating and exonerating circumstances equally. As ICC Prosecutor Fatou Bensouda has stated, objectivity aims at establishing the truth, as opposed to securing “convictions at any cost” (Bensouda 2010).
Gravity Of International Crimes
According to the Rome Statute, the cases selected for investigation and prosecution have to be of sufficient gravity. The OTP considers four indicators for assessing gravity in determining whether an investigation shall be opened. These are scale, nature, manner, and impact of the crimes committed. In the case of ICC crimes, the scale tends to be massive. For instance, in the DRC, the OTP announced in September 2003 that it had identified the crimes in the Ituri region as warranting the focus of an investigation, with reports indicated the particular gravity of the crimes, resulting in inter alia an estimated 5,000 civilian deaths since 2002. The massive scale of the precursor to this violence in the DRC is further evident in the reported total number of both direct and indirect conflict deaths in the whole DRC between 1998 and 2002, which has been estimated at 3.3 million people (Geneva Declaration on Armed Violence and Development 2008). In the case of the postelection violence in Kenya in 2007–2008, which happened over a period of only a few weeks, 1,200 persons were allegedly killed, in addition to at least 1,000 reported rapes and 450,000 persons displaced. Apart from the scale of the crimes, the manner of commission is considered for the assessment of gravity. In Ituri, the Office considered information on summary executions, burning of people alive, physical mutilation, and the specific targeting of vulnerable groups, in particular women and children. Examples of extreme brutality can also be found in other situations. In the Bemba case, victims were “raped at gunpoint, in public or in front of or near their family members” (Pre-Trial Chamber II 2009). In Darfur, babies were reportedly burnt in the presence of their families. Finally, impact refers to the consequences of a given crime. This includes social, economic, and environmental damage of crimes; the intention of spreading terror among the civilian population; or crimes committed with the aim or consequence of increasing the vulnerability of civilians, as alleged by the OTP in the Banda and Jerbo case concerning an attack against peacekeepers (OTP 2010b).
Nonetheless, gravity can sometimes be difficult to measure. Quantitative data, such as figures of people killed or raped, are often rare and, if available, may be difficult to ascertain. This is due to a variety of factors. First, some areas may not be covered by any monitoring mechanism. This may be the case for certain locations not accessible in times of ongoing conflict. Potential bias may also result from a possible interest of the parties to a given conflict to underreport crimes by one side and over-report those by another. Moreover, there may be a reluctance to report crimes altogether, which is particularly true for incidents of sexual violence. Here, an assumed systematic underreporting can be traced back to a number of reasons, including social stigma attributed to rape victims in certain communities. This is the case, for instance, in Libya, where victims of sexual violence have reportedly been at risk of reprisals and stigmatization. As a consequence, it can often be difficult to assess the full scale of sexual violence allegedly committed during the armed conflict of 2011. While the credibility of information, particularly numeric information, may often require scrutiny, the reliability of sources may often be equally hard to assess. In this context, methodologies derived from criminology could help to further refine indicators for assessing gravity, including models for measuring scale and impact on societies affected by international crimes. See for an example thereof the work of John Hagan (Hagan et al. 2005) who won the Stockholm Prize in Criminology in 2009 for his work.
In well-functioning national jurisdictions, it is hard to imagine that serious crimes are not investigated or that they go unpunished. In situations of massive violence that the OTP faces, however, there will often be large amounts of information concerning multiple perpetrators at varying levels of responsibility committing large-scale and widespread crimes against numerous victims. It is not the responsibility or role of the Prosecutor to investigate and prosecute each and every criminal episode within a situation. This is not only practically unfeasible: it would also run counter to the notion of a system of courts combating impunity through complementary action at the international and national level, as foreseen in the preamble of the Statute, and the primary responsibility of those States for the investigation and prosecution of such crimes (Rome Statute, Preamble; OTP 2003). The OTP, thus, must exercise discretion in determining which cases should be selected and prioritized for investigation and prosecution. As a consequence, the OTP must strategically focus its activities on a limited number of cases at the highest levels of responsibility and on the most serious crimes. This selection process comes with positive and negative implications. On the one hand, maintaining focus allows expeditious investigations and prosecutions while limiting the number of persons put at possible risk due to their interaction with the Court. It also prevents excessive spending of resources by investigating too broadly. On the other hand, a limited pool of witnesses may give rise to problems for a case should a witness cease cooperating at a later stage. Therefore, it is necessary to balance the use of documentary and other evidence with the value of witness testimony and the reliability and stability of such witnesses. Focused investigations may further mean that the cases will not capture the full extent of all crimes suffered by all victims nor enable prosecution for all possible perpetrators. While it remains to be seen how the ICC judges will respond to the OTP’s focused approach, it is safe to assume that the OTP cannot meet the expectations of all victims. However, it does certainly seek to ensure in the cases it brings that the incidents selected for prosecution are reflective of the main types of victimization.
In the case of massive crimes, the number of direct victims and indirectly affected communities demanding justice from the Court is high with victims approaching the Court in a single situation often in thousands. Expectations must thus be managed from the beginning not only by clarifying the limitations of the mandate (such as temporal jurisdiction) but also by explaining the prosecutorial policy of the Office. In this context, it is important to note that under the Rome Statute, victims have for the first time in the history of international criminal justice the possibility of taking an active role as witnesses, participants in the proceedings, and beneficiaries of reparations. However, due to the Office’s policy of focused investigations and prosecutions, there may be victims who suffered harm as a result of crimes other than those actually included in the charges selected for prosecution. The interests of these victims, who therefore do not qualify for participation in the pretrial or trial proceedings in a particular case, need to be addressed by the Office in other ways. In addition to outreach sessions in affected communities in situation countries such as Uganda or DRC, victims may present their views early on through submitting information on crimes or participation in town hall meetings, which have at times contributed to the definition of incidents and charges brought forward by the Prosecution. Second, through considering the broader impact of crimes, the Office seeks to address the interests of a wider community of victims. Third, at the reparations stage, the OTP favors a wider approach to allow participation of victims and representations from or on behalf of victims and other interested persons who suffered harm as a result of crimes other than those included in the charges selected for prosecution (OTP 2010a). In this context, it should be noted that the ICC, as the first international criminal tribunal awarding reparations, will have to decide on how to provide former child soldier victims with compensation in the case of the former Commander-in-Chief of the Forces patriotiques pour la libe´ration du Congo, supplementary solutions to close the impunity gap will be necessary, either through national proceedings or alternative mechanisms such as truth and reconciliation commissions. A comprehensive strategy is needed to determine how situation countries can (be helped to) deal with all crimes committed.
Perpetrators Of International Crimes
Massive crimes require extensive planning and usually involve a broad variety of direct and indirect perpetrators from a State apparatus or an organization. For instance, three State armies and 20 armed groups were involved in Congo Wars over the last two decades, the remnants of which can be witnessed in the ongoing conflict in eastern DRC. In the Darfur conflict, one State army, eight government-allied forces, and 14 armed opposition groups have been active. The strength of such groups can range from 50 to 50,000 fighters. Besides quantitative criteria, groups vary in their nature, particularly their level of organization, which may range from network-like, temporary structures to militias up to a fully-fledged state apparatus.
The share in the commission of gravest crimes needs to be carefully investigated and evaluated for each group against the gravity threshold to identify the most responsible perpetrators. In the situation of Kenya, for instance, the Office has investigated simultaneously persons affiliated with both the government and opposition side. In the situation of Libya, the ICC’s first Prosecutor, Luis Moreno-Ocampo, pointed to allegations of crimes not only by pro-Gaddafi forces but also by NATO forces and forces affiliated with the National Transitional Council. In the situation of Coˆ te d’Ivoire, the Office has emphasized that the investigation of alleged crimes committed by different parties to the conflict will be conducted irrespective of political affiliation. However, both focused investigations and resource limitations may also require prioritization. For instance, regarding the complex conflict in Ituri, in which many militias have allegedly committed crimes, the OTP focused its investigation on those militias allegedly responsible for the most serious crimes, which resulted in cases concerning the Union des Patriotes Congolais (“UPC”) and its military wing, the Forces Patriotiques pour la Libe´ration du Congo (“FPLC”), and the Force de Re´sistance Patriotique en Ituri (FRPI) and the Front de Nationalistes et Inte´grationnistes (FNI). In Uganda, upon analyzing the gravity of crimes allegedly committed by different armed forces and groups, the OTP found that alleged crimes by the LRA were of highest gravity. The OTP therefore started with an investigation of the LRA. Case selection is thus based on a number of legal and policy principles, including overriding principles based on objectivity, impartiality, and independence, as well as considerations of gravity focused on the most serious criminal episodes.
A similar process is applied once a specific organization or group has been identified for investigation. The OTP has stated in its 2003 policy paper that “as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes” (OTP 2003). Accordingly, individuals investigated and prosecuted before the ICC have included senior civilian leaders and military commanders, two Heads of State, and one former Head of State. In some cases the focus of an investigation by the Office may go wider than high-ranking officers, if investigation of certain type of crimes or those officers lower down the chain of command is necessary for the whole case. Nonetheless, as a general rule, the Office encourages national prosecutions, where possible, for the lower-ranking perpetrators or otherwise seeks to work with the international community to ensure that the offenders are brought to justice by some other means. The goal is to develop comprehensive anti-impunity strategies combining international and national efforts to combat impunity. If former perpetrators are not dealt with through comprehensive strategies, which may involve a variety of transitional justice tools, there is a risk that they may rejoin criminal subcultures or migrate to third countries to form newly emerging criminal networks elsewhere. Here, criminology could research further offender integration in relation to perpetrators of international crimes at different levels of responsibility.
To link suspects to a given crime, the guiding model for investigations by the OTP puts emphasis on a comprehensive crime analysis enabling one to piece together crime patterns and chains of command and to collect the type of evidence needed to establish nature and degree of responsibility (OTP 2003). While a fundamental requirement in this context is to prove charges beyond reasonable doubt, the criminal responsibility of leaders is not always easy to establish. For instance, in many conflict-ridden environments, sexual violence is a frequently reported phenomenon. However, the context of leadership responsibility for individual incidents is not always clear: rape may be committed as an opportunistic crime by private citizens or members of an armed group or state apparatus against the backdrop of a general breakdown of the rule of law or disciplinary failures, or rape may be committed or condoned as an organized campaign by a state apparatus or organization to further specific policy objectives.
A further challenge arises from proving criminal responsibility at the highest level. The more sophisticated a group, the more its members will cover their traces in order to make issues of attribution difficult. In other situations, a criminal network may benefit from a conflict in undetected or underreported manners. Ignoring such a link may result in organized crime reinforcing itself in a conflict area, rendering it also more difficult to fight it at the national level, particularly in countries far removed from the conflict.
In this area, criminology has a twofold task: first, it can assist in bringing together various disciplines including organizational thinking, organized crime models, and military organizational models to better understand how the most responsible perpetrators fulfill their role in a given organization and to define different ways of proving criminal responsibility. Second, criminology could build on the work of Edwin Sutherland and other criminologists to apply the study of crimes by corporations and State crime to the linkage between organized crime, international crimes, and armed conflict.
Protection Of Persons At Risk
The OTP often operates in areas of ongoing conflict or post-conflict situations. This comes with a variety of challenges including poor infrastructures coupled with often remote and inaccessible locations, volatile security situations, and a precarious information security environment. In addition to operational challenges, cultural differences need to be taken into account. For instance, the Office has to communicate effectively with witnesses in local languages, some of which have no corresponding words for legal terminology, while finding qualified professional translators requires exceptional efforts. However, while many of these challenges do not differ from those encountered by other agencies working in the same environments, the Court faces one distinct challenge. This is the legal duty to protect persons at risk on account of their interaction with the court, predominantly victims and witnesses. As the OTP has increased its activities and judicial proceedings have evolved from opening investigations towards actual trials and conviction, the number of persons threatened due to their interaction with the Court has also increased, as well as the capabilities of suspects to track, monitor, and influence witnesses. The risk of threats and actual victimization of witnesses implies that the OTP has to approach witnesses without exposing them, which includes identifying safe sites for interviews, securing discrete transportation for investigators and witnesses, or checking for possible relationships between drivers and hotel owners with suspects.
While witness protection is a challenge in national jurisdictions as well, it becomes even more complex when one cannot rely on a well-established law enforcement structure. Take the case of Darfur, in which two arrest warrants have been issued against the Head of State, President Bashir. Due to security concerns, the OTP had to conduct investigations into this situation without being able to secure access to witnesses and crime scenes inside Darfur. Instead, it collected information from witnesses in third countries. This scenario arises when one operates in ongoing conflicts and post-conflict situations without state support or when one is operating globally in multiple places with limited resources. A particular difficulty is related to the fact that the OTP is usually investigating the powerful, i.e., members of armed groups controlling a given territory or members of a state apparatus. Here, the Office is dealing with alleged perpetrators who see themselves as (and are de facto) in control of the law. In addition to challenges posed by powerful suspects, individuals at risk due to their interaction with the Court such as witnesses sometimes may not fully appreciate the dangers posed by the security situation or have a different sense of risk due to their ingrained behavior in living in a conflict zone, which may ultimately lead them to undermine protective measures. In addition, there is a risk that certain individuals may see protection through the Court as a way to improve their own circumstances. Inevitably, security concerns may influence the speed of an investigation. While theoretically speaking, quickly securing an arrest warrant could have a deterrent impact in restraining the further commission of crimes, unfortunately the execution of an arrest warrant is not always automatic.
Cooperation With National Jurisdictions And Other Institutions
Cooperation is the fourth aspect rendering investigations and prosecutions by the OTP distinct. Cooperation is needed for a number of reasons. Next to the general support to the Court’s decisions, operational cooperation from national authorities and international organizations is a core requirement for conducting investigative activities such as gathering information and collecting evidence, dealing with logistic challenges in the field, responding to security issues, or building capacity several thousand kilometers away from the ICC Headquarters in The Hague. Overall, OTP operations benefit from cooperation with a broad range of partners, including referring States, third States involved in conflicts related to the situation under investigation, States Parties, international organizations, war crimes units of national jurisdictions, and other experts. For instance, in the situation of Libya, as of 3 October 2011, the OTP had conducted 50 missions to 15 different countries. In other situation countries such as the DRC, to facilitate missions, cooperation mechanisms had to be established with other partners including the peacekeeping mission and other relevant organizations.
In addition to support needed on the ground, the OTP has benefited in the past from its network with national law enforcement agencies and other specialized organizations such as national forensic institutions. At the same time, the OTP has also provided assistance where possible and subject to witness security considerations to national jurisdictions, such as in the case of the Forces De´ mocratiques pour la Libe´ration du Rwanda (FDLR), an armed group operating in the DRC, where the OTP successfully contributed to the investigation by the German authorities of two senior leaders living in Germany, while the OTP itself investigated a third senior leader residing at the time in France. Also, as part of its policy of positive complementarity, the OTP has provided assistance to the Ugandan authorities in preparation of their first domestic war crimes case before the newly established International Crimes Division of their High Court, against an alleged midlevel LRA commander.
While these are positive examples of cooperation, the interaction with national jurisdictions is hampered at times by a number of factors: first, there are the ordinary challenges of law enforcement cooperation. These constraints are equally known to other types of international investigations such as organized crime investigations. A recent unpublished study conducted under the guidance of Interpol together with the ICC identified major challenges to international investigations including different legal frameworks, different capabilities and resources, incompatibility of procedures, lack of trust, and cultural obstacles. The study further identified factors that can improve such cooperation including the ability to assess the impact of transnational crime, strategic investment into international cooperation including training programs, and other ways of promoting interpersonal contact as well as joint planning (Police Academy of the Netherlands 2011).
The level of support by a given country or organization can have considerable impact on the ability of the OTP to investigate and prosecute. While the duration of an investigation depends on a number of factors such as focus and complexity of the investigation, the assistance from national jurisdictions or absence thereof can be decisive. Nonetheless, the OTP has also demonstrated that it can pursue its mandate in the face of intransigence or active opposition from the State concerned: for example, in both Darfur and Libya, where it showed that it was able to pursue investigations against the highest level of responsibility without the assistance of the territorial State.
The most critical challenge for prosecuting international crimes, however, is the execution of an arrest warrant. As often pointed out, the ICC lacks an own police force. In fact, the Court depends entirely on the assistance of States to ultimately fulfill its arrest mandate. The level of support in the area of arrests depends on both the ability of a given country to control its own territory and its willingness to surrender a suspect to the Court. There have been positive examples, such as three nationals of the DRC who were surrendered to the Court by the DRC’s national authorities, or Belgium, which implemented an arrest warrant against the President and Commander-in-Chief of the Mouvement de libe´ration du Congo, Jean-Pierre Bemba Gombo. Another positive example is the surrender of former President Laurent Gbagbo by the national authorities of Coˆ te d’Ivoire following a warrant of arrest issued under seal in November 2011. Yet warrants remain pending against Sudanese President Bashir, regarding which the Pre-Trial Chamber has issued several decisions regarding noncompliance following the failure by some States Parties to cooperate with the Court. With regard to Libya, the OTP has received support from Interpol through three “red notices” for the arrest of ICC suspects Muammar Gaddafi (until his death), Saif Al-Islam Gaddafi, and Abdullah Al-Senussi. The OTP has also been able to secure the voluntary appearance of nine suspects before the Court, namely three rebels from Darfur and six public figures in Kenya. Despite concerted efforts, however, a total of 11 suspects sought by the ICC were still at large as of April 2012. The execution of arrest warrants, nonetheless, is a perennial challenge for all international courts and tribunals. The arrests of Radovan Karadzic and Ratko Mladic´ and their surrender to the International Criminal Tribunal for the Former Yugoslavia, for example, occurred 13 and 16 years after their first indictment in July 1995, respectively. Nonetheless, they were ultimately brought to face justice.
While the OTP’s timing of an arrest warrant application will in the first instance depend on the status of the evidence collected, other factors will also come into play. These include the window of opportunity to actually arrest a suspect.
Despite such challenges, international criminal justice has witnessed the gradual emergence of a paradigm shift away from the rule of power towards the rule of law. Needless to say, such a shift creates tensions. As first ICC Prosecutor Luis Moreno-Ocampo has pointed out, “Reality has demonstrated that the Office’s independent decisions have triggered conflicts of interests for States. Leaders who are using crimes to retain power have criticized the Court and managed to mobilize some international support to this end. States Parties have struggled to prioritize their commitment to international justice over more immediate economic or political interests” (Moreno-Ocampo 2011).
Against the backdrop of a general lack of knowledge of what the Court can and cannot do, coupled with high expectations about justice being brought about, insufficient levels of cooperation may ultimately lead to the perception of double standards.
Peace Versus Justice?
Finally, the fact that ICC investigations and prosecutions often take place against the backdrop of ongoing conflict routinely triggers an old debate revolving around a difficult question: what is more important – peace or justice? This debate is inevitable considering that the OTP may be investigating and prosecuting in an arena where other actors are focused on political settlements to end conflicts, on securing access for the provision of humanitarian assistance, or on enabling implementation of cease-fire agreements or the deployment of peacekeeping personnel. It is often presented as a dilemma difficult to resolve, but the dilemma itself may also often be illusory and intentionally instrumental zed by those in power to avoid justice. While supporters of the paradigm “peace first, justice second” argue that peace is more important to achieve security, proponents of the paradigm “no peace without justice” emphasize that if justice is not ensured at all levels, tensions may often continue to fester and foster to new violence based on previous patterns of impunity for violent crimes. The long-term logic of favoring short-term solutions needs also to be considered: what deterrent message is conveyed to the perpetrators of genocide, crimes against humanity, or war crimes by signaling that they can ensure impunity for their crimes by holding peace a hostage to threats to commit more crimes? It is worthwhile mentioning here that the UN Security Council referrals of two situations to the ICC, namely, Darfur and Libya, have both stressed the need to account for past crimes. As described in the OTP policy paper on the Interests of Justice of September 2007, “The issue is no longer about whether we agree or disagree with the pursuit of justice in moral or practical terms: it is the law. Any political or security initiative must be compatible with the new legal framework insofar as it involves parties bound by the Rome Statute” (OTP 2007). Moreover, in an April 2009 report on mediation, UN Secretary-General Ban Ki-Moon advised all mediators that they must take into account and respect the ICC jurisdiction and action in accordance with the Rome Statute: “Where serious crimes have been committed, pursuing international justice during mediation can generate considerable tension and affect the outcome, since indicted parties may cease cooperation and actively obstruct the process. Ignoring the administration of justice, however, leads to a culture of impunity that will undermine sustainable peace. Now that the International Criminal Court has been established, mediators should make the international legal position clear to the parties. They should understand that, if the jurisdiction of the ICC is established in a particular situation, then, as an independent judicial body, the Court will proceed to deal with it in accordance with the relevant provisions of the Rome Statute and the process of justice will take its course” (UN Security Council 2009).
In light of the numerous challenges, it seems that the ICC is still at the beginning of a long-term process to bring an end to impunity. While the Court has recently completed its first trial in the case against the former Commander-in-Chief of the Forces patriotiques pour la libe´ration du Congo, Thomas Lubanga Dyilo, and nears completion in two others, many of the challenges the OTP faces will continue to exist. This includes high expectations towards and knowledge gaps regarding the Court, protection challenges, and cooperation issues, as well as the recurring peace and justice debate. Furthermore, at a time of an already high caseload, the Court must effectively respond to demands by some States Parties for budget restraints in an overall stretched economic climate. Both the first and current prosecutor have noted that the OTP has surpassed the limit of resources in comparison to the number of cases.
Despite numerous challenges outside of its control, the ICC and with it the Rome System, which celebrated their 10th anniversary in 2012, will and must be ultimately judged based on the ability to achieve the goal of the preamble of the Rome Statute, namely, the determination to end impunity and contribute to the prevention of the most serious crimes in the world. In this context, criminology could play a leading role in assessing the effectiveness of the two complementary protagonists of the Rome System, i.e., the Court on the one hand and States Parties on the other. Here, academic research may assist in developing performance indicators to find answers to a number of open questions, for instance, as follows: is the Court having a deterrent effect in modifying behavior? Has the existence of the Court started to lead to an increase of national proceedings, as a result of complementarity? Is the Court being perceived by the broader public as bringing and safeguarding justice?
Successful investigations and prosecutions of genocide, crimes against humanity, and war crimes require the integration of a broad variety of academic disciplines and fields of work usually not found. Those most relevant in the current context are international relations, investigative work, security studies, prosecutorial approaches, and organizational studies. Criminology is the field which, due to its idiosyncratic, interdisciplinary orientation, would be well suited to assist in improving our understanding of international crimes and their perpetrators, our ability to prove responsibility of the most responsible ones, including criminal networks whose operations are sustained and fuelled by conflicts around the world.
Finally, if the ultimate goal of the ICC is, according to the principle of positive complementarity, not to intervene due to genuine national proceedings, criminology will be needed to conduct research on how to prepare national jurisdictions not only to deal with gravest crimes but also to prevent them from happening in the first place. As noted in the OTP’s policy paper of 2003, “the absence of trials by the ICC, as a consequence of the effective functioning of national systems, would be a major success” (OTP 2003).
- Bensouda F (2010) Challenges related to investigation and prosecution at the international criminal court. In: Bellelli R (ed) International criminal justice. Law and practice from the Rome statute to its review. Ashgate, Farnham/Burlington, pp 131–142
- Geneva Declaration on Armed Violence and Development (2008) Global burden of armed violence. http://www. genevadeclaration.org/fileadmin/docs/Global-Burden-15/OTP_Draftpolicypaperonpreliminaryexaminations04101.pdf. Accessed 4 Jan 2011
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