The ICC: a crisis of maturity?

A commentary on The Hague Justice PortalHague Justice Portal

Ten years after the signing of the Rome Statute and some six years after it entered into force, the International Criminal Court (ICC) finds itself in troubled waters. The case against Thomas Lubanga, the first accused to appear before the Court, is on the verge of collapse and could well end in a complete failure. In the other situations before the Court, for example Uganda and Sudan, the progress made to date has been minimal. We have reached the point where more and more analysts use the word ‘crisis'' to describe the current situation at the ICC.

In a commentary written for the Hague Justice Portal, the author -who wishes to remain anonymous for personal reasons- analyses the different elements of this crisis and attempts to understand both their origins and their wider significance. In trying to balance several controversial strategic choices made by the ICC prosecutor and other structural problems at the Court, the author proposes a comprehensive overview of what could be the first ‘crisis of maturity'' of the International Criminal Court.

''A crisis of maturity''
The ICC is a young institution. The Court was established by the Rome Statute, which was adopted on 17 July 1998 and entered into force on 1 July 2002. The ICC''s judges were sworn in several months later, on 3 March 2003. On 16 June 2003 Luis Moreno Ocampo took office as the Court''s firts prosecutor. Finally, on 24 June 2003, the judges of the Court elected the Registrar, who was sworn in on 3 July 2003. Accordingly, by mid-2003 all of the organs of the Court were in place.

It should be acknowledged that the Court, which is only five years old, is still developing and must endure the predicaments associated with the maturing process. For a criminal court, a ‘crisis of maturity'' can be defined as a situation at the end of which the relationships between the organs of the court, or certain fundamental principles of the established legal regime, have been clarified.

At the International Criminal Tribunal for Rwanda (ICTR), for example, the Barayagwiza case can serve as an example of a so-called ‘crisis of maturity''. In that case, the Appeals Chamber concluded that an abuse of process necessitated a halt in the proceedings. The Tribunal engaged itself in an unprecedented crisis with Rwanda, which prevented the transfer of witnesses. The Prosecutor subsequently requested, successfully, reconsideration of the decision before an Appeals Chamber with a slightly different composition.

This crisis allowed the Tribunal to demonstrate the essential difference between a ‘classic'' criminal trial and a trial for international crimes. The Tribunal attempted to defend both the autonomy and the specificities of its legal regime. The reasoning adopted by the Tribunal may not have been universally convincing. But significantly, it permitted the institution to revive itself without losing face. Today, this crisis has essentially been forgotten and Jean-Bosco Barayagwiza is peacefully serving the remaining 20 years of his 32-year sentence, after dreaming of regaining his freedom, and seeking a revision of his sentence in vain.

The Lubanga crisis
The current crisis in the Lubanga case before the ICC could follow this logic. The Trial Chamber issued a stay of proceedings in the case after concluding that it was impossible to ensure a fair trial following the actions of the Prosecutor. The elements of the crisis can be summarised as follows: pursuant to prior agreements that prevented the disclosure of the acquired information, the Prosecutor obtained certain evidence. He relied on these prior agreements not to disclose the evidence to the Defence, even though some of the evidence was potentially exculpatory. Moreover, the Prosecutor refused to disclose the related evidence to the ICC judges, depriving them of the chance to examine the evidence thoroughly and determine whether the rights of the accused had been affected by its non-communication.

This crisis may go deeper and have an abiding effect on the institution, in the sense that it compounds other circumstances currently afflicting the Court as a whole. Among these situations, one is specific to the Prosecutor, while others reveal the generally difficult context in which the Court finds itself. In order to evaluate the full extent of this crisis, this commentary will successively discuss (1) the current status of the Lubanga case, followed by (2) the personal criticisms that have been levelled against the Prosecutor, and finally (3) the present general context of the Court.

The author concludes that there are numerous facts to support the claim that the Court is undergoing a ‘crisis of maturity.'' Considering the overall situation, this assertion is completely justified; especially considering the current restrictive approach to victim participation, the dearth of trials, and the relative success of Uganda''s political manoeuvres.

Monumental error
But if we focus on the Lubanga case, the crisis has more to do with the Prosecutor''s monumental error than with a crisis of maturity, unless we are talking about a crisis of maturity within the Prosecutor''s own office. The Office of the Prosecutor is the institution with the greatest responsibility during the current phase of the life of the Court. It is also the organ that takes the greatest risks, which leads, naturally, to criticism of the Prosecutor. The strategic choices that the Prosecutor was able to make, often contrary to general opinion, are more questionable-whether they stemmed from the cases he managed or the personnel assisting him in the administration of cases. These controversial strategic choices can occasionally heighten a general crisis.

Given this last perspective, one must hope that the Prosecutor, as an institution of contemporary international criminal justice, will overcome these trials and tribulations in a revitalised and effective manner, and-ultimately-thereby safeguard the interests of humanity. This is, of course, a difficult mission which has been entrusted, in part, to him. Men will come and go, but the institution will remain, and it is in the interest of the international community to use the lessons learned to build a more efficient Court. The current crisis is not the fault of the Prosecutor exclusively; the whole institution needs to address it, without losing sight of the fact that the Assembly of States Parties is an integral part of the system. At every level, solutions should be sought, because they do exist. Let us hope that we can find them quickly enough.