The International Criminal Court and its Shortcomings

By: Sweta Maturu In July 2002, the Rome Statute of the International Criminal Court (ICC) entered into force. The Rome Statute itself was ratified in July 1998. The Rome Statute establishes the world’s first permanent criminal court with the jurisdiction to try crimes against humanity, genocide, war crimes, and crimes of aggression.[1] The ICC primarily came to existence because the Security Council desired to stop using ad hoc tribunals as primary tool of administering international justice as it was becoming politically and economically untenable for the UN to establish them.[2]

The ICC is a significant stepping-stone in ending the impunity of those responsible for mass atrocities committed around the world. As an institution, however, the ICC faces several shortcomings that prevent it from fully pursuing justice for victims of mass atrocities. One problem with the ICC is its effect on peace processes in the face of conflict. The conflict between the Ugandan government and the Lord's Resistance Army demonstrates the unintentionally adverse effect that an ICC warrant may have on the conflict peace settlement negotiation process.[3] The rebel group LRA has committed mass atrocities, torture, child abductions, and rapes on civilian populations within northern Uganda. Reaching a stalemate in the conflict, the Ugandan government reached out to the ICC and referred the leaders of the LRA to be tried for crimes against humanity. After formal investigations, the ICC determined there was sufficient evidence to prove that the top leadership of the LRA directed attacks and a cycle of brutality against government forces and civilian populations. The ICC Office of the Prosecutor issued arrest warrants in 2005 for Joseph Kony, the top LRA leader, and Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen, who are top LRA commanders.[4]

While this pursuit of justice is a large step forward in holding the LRA accountable for its appalling crimes, there are legitimate criticisms of the ICC for aggravating the situation in Uganda. Mainly, many people perceive the ICC arrest warrant for the top leadership serves as the biggest stumbling block to the peace process in Uganda. During peace talks in 2008, Kony made it clear that he wanted the ICC warrants to be dropped. His consequent intransigence on the issue of his arrest warrant has halted peace negotiations. Consequently, many Ugandans question the need for ICC involvement if it is halting progress in the peace talks between the LRA and the Ugandan government.[5]

Another obstacle the ICC faces is the balance between the rights of the defendant against the justice that victims deserve. Thomas Lubanga Dylio is the first person to be tried by the ICC. His arrest warrant was issued in 2006 for enlisting and using child soldiers for conflict in the Ituri region of the Democratic Republic of Congo. Lubanga was arrested and brought to the ICC in 2006, and was ready to stand trial in 2007. The ICC Trial Chamber, however, halted Lubanga's trial because they were worried it would not be fair; the prosecutor refused to disclose crucial exculpatory information to the defense. The ICC Trial Chamber judges called for the immediate release of Lubanga and a suspension of his trial, as they viewed his right to a fair trial had been severely violated by the prosecution. The prosecution quickly appealed the Trial Chamber's decision and convinced the appeals chamber not to release Lubanga while the trial remained in suspension. By 18 November 2008, the Trial Chamber believed the prosecution took the right steps to correct their mistakes by disclosing documents to the defense. The judges allowed the trial to start the trial on 26 January 2009.[6]

The Lubanga trial demonstrates the delicate balance between the goals of the court to end the impunity of those responsible for the most serious humanitarian crimes and to uphold the highest standards of due process and fairness possible. The ICC, despite its goal to end impunity of top leaders, is not meant to be a court that merely convicts. In his pursuit to make sure his first case would be successful, the ICC Prosecutor's inattention to due process rights of the defendant in the case of the Lubanga trial meant that the well-deserved victims justice was nearly unattainable at one point. From an institutional standpoint, however, the judges’ ability to strictly uphold the legal principles of a fair trial and due process attest to the legitimacy of the ICC, especially in the face of its extremely politicized beginnings in the Rome Statute negotiations.

[1] Nicole Deller, Arjun Makhijani, and John Burroughs, "The Rome Statute of the International Criminal Court," in Rule of Power or Rule of Law, (New York: The Apex Press, 2003), 113.

[2] Michael P. Scharf, “The Politics of Establishing an International Criminal Court,” Duke Journal of Comparative and International Law, 167(1995 – 1996), 169.

[3] PBS, The Reckoning: The Battle for the International Criminal Court, Directed by Pamela Yates, Paco de Onís, and Peter Kinoy, (Skylight Pictures Inc., 2009).

[4] International Criminal Court, Warrant of Arrest for Joseph Kony Issued on 9 July 2005 as Amended on 27 September 2005, The Office of the Prosecutor, ICC-02/04-01/05, (The Hague: ICC, 2005) pp. 4,

[5] PBS, The Reckoning: The Battle for the International Criminal Court.

[6] Open Society Justice Initiative, "The Lubanga Trial at the International Criminal Court," Open Society Foundations,; Sophie Rosenburg, "The Lubanga Case: Wrapping Up the ICC'S First Trial," The Enough Project,, published September 01, 2011.

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