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ICC verdict may be wake-up call for war criminals

03/15/2012 01:47 EDT | Updated 05/14/2012 05:12 EDT

The treaty that created the International Criminal Court came into force almost ten years ago, on July 1, 2002. The treaty, the Rome Statute, provided for the creation, for the first time, of a permanent international criminal court to prosecute the most series cases of genocide, war crimes and crimes against humanity.

On March 14, the ICC brought down its first verdict, which fuelled discussions about what took so long, and even whether the court is worth the expense.

The verdict was in the case of Congolese warlord Thomas Lubanga. Six years after Lubanga first appeared at The Hague, the judges pronounced him guilty of war crimes for the enlistment, conscription and use of child soldiers in 2002-2003.

It was the ICC's first trial and it broke new ground, but it did show that international criminal justice is slow.

Nevertheless, Canadian author Erna Paris says that as a brand new institution, "the court has handled these early years well." Paris's latest book is The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.

"Everything had to be created from the ground up," and the Rome statute had never been applied before, Paris told CBC News.

There were hitches, she concedes, but the experience of the last ten years has firmly established a trend towards international justice, which Paris views as "a major turnaround in international affairs."

ICC just the fallback for prosecutions

Caroline Davidson, one of the Canadians who have been at ground zero for the international criminal justice, said it is still too soon to tell whether the ICC experience has been worthwhile.

Between 2003 and 2008, Davidson prosecuted alleged war criminals at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the State Court of Bosnia and Herzegovina. During that time, she also spent a year as an international human rights fellow at the University of Toronto law school. Since leaving the ICTY, she has been teaching law at Willamette University in Oregon.

Davidson explained that the ICC is premised on a decentralized model, and not just the court in The Hague, The Netherlands. The 120 countries, including Canada, that are now parties to the Rome statute "have agreed to engage in prosecutions of their own and to make their criminal codes comport with the Rome statute."

So the ICC is just the fallback, she pointed out, for when countries are unwilling or unable to prosecute cases. Under the Rome statute, national governments have primary responsibility to bring the perpetrators to account.

International criminal justices takes time

ICC cases take time because they begin not as cases but as investigations of situations, with seven currently underway.

The ICC does not investigate crimes committed before the statute entered into force in 2002, so it was to be expected that it would be slow getting started.

As well, countries that have not signed the statute do not automatically come under the state's jurisdiction. That list includes China, Israel, Russia, Syria and the U.S.

However, the UN Security Council can refer countries to the ICC, which happened with Libya last year and earlier with Darfur.

Laurent Gbagbo, the former president of Ivory Coast, is appearing at the court in The Hague at the request of the Ivory Coast's current government, even though the country is not a party to the Rome statute.

U.S. not a signatory

The absence of the U.S. has hampered the ICC, particularly financially, according to Paris. The court is undergoing budget cuts this year that Human Rights Watch claims will make it "challenging for the ICC to implement its mandate."

For Paris, "American logistics, all the things that the US is really so good at, and has such control of, would definitely have helped the court." But she points that the U.S. is still involved, citing as an example their sending 100 military advisers to help capture and bring before the ICC, Joseph Kony, the leader of the Lord's Resistance Army of Uganda.

In the CBC News interview, Paris said the Obama administration has been very friendly to the ICC but, given the current political alignment in the U.S., she rules out the addition of a U.S. signature on the Rome statute.

For Davidson, one of the lessons of her experience at the ICTY was the need to make cases more streamlined. In the past, international trials have been used not only for prosecution but also documenting the history of what happened, leading to "a tendency to pile on heaps and heaps and heaps of charges."

Speedy prosecution or an historical record

That works against a speedy resolution of the charges but "It's hard to create a historical record when you only have a small number of charges," she said in the interview.

Slobodan Milosevic faced "heaps of charges" at the ICTY. "The case took forever and then he died before the charges were adjudicated," Davidson said.

Prosecutors at the ICC debated what to do with Lubanga, and ultimately only pursued the child soldiers charges, but that case also took "forever," she said.

To begin with, the cases are not as easy to investigate as they are in domestic jurisdictions. "You're relying on local cooperation, which may or may not be present," Davidson said, drawing on her own experience in the former Yugoslavia. And the ICC investigates cases with ongoing conflict, which makes obtaining information both dangerous and difficult.

Among the other issues that delayed the Lubanga trial were issues about the prosecution disclosing confidential information to the defence, and the use of third parties to conduct investigations.

As its first trial the ICC had to work through those issues in order to ensure the rights of a defendant to a fair trial. Lessons were learned and "other trials under way at the ICC are already running more smoothly," according to Human Rights Watch.

The Lubanga trial also took time because as the first such court to include victim participation in its statute, the ICC had to work out how to make it so.

For Paris, the bottom line of Lubanga's conviction and the ongoing work of the ICC is that, for war criminals, it "has announced that there is accountability for these acts, and for these people, and that can't help but make a difference."

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