International Criminal Court's Daunting Challenges

At the review conference for the International Criminal Court (ICC) in Kampala, the Open Society Justice Initiative, together with several partners,  has taken the opportunity  to address some of the challenges the court faces.

At one panel event, speakers addressed the principle of complementary, which holds that individual states should be responsible for trying cases involving war crimes, crimes against humanity, and genocide. The ICC should be a court of last resort and try only those cases which national judicial systems were unable or unwilling to tackle.

Speakers were unanimous that support for the ICC by member states falls short of what is required to enable the court to have a wider impact in promoting international justice and helping to end impunity. A large number of states are either not doing enough to try these cases, or they lack the capacity to do so satisfactorily.

James Goldston, the Open Society Justice Initiative executive director, made reference to three case studies: Uganda, Kenya, and the Democratic Republic of Congo. These cases, he said, showed that neither donor states nor countries that had experienced atrocities have given sufficient priority to complementarity or to domestic law reform.

Goldston offered specific proposals, among them that the Assembly of States Parties could create a special working group to capitalize on synergies between the work on the ICC and that of groups promoting the rule of law. The working group would include nonstates parties and rule of law experts who would provide intellectual leadership for donor and recipient states.

Some of the speakers suggested that one of the keys to achieving the principle of complementarity would be to build the capacity of judicial authorities in developing countries to enable them handle serious crimes. Conference plenary discussions on complementarity focused on possible actions that states could undertake to strengthen and enable other states’ capabilities to conduct investigations and trials of international crimes.

Addressing the plenary session at the conference, the president of the ICC, Judge Sang-Hyun Song, stated that integrating ICC crimes in national codes offered a first measure of states’ commitment to the principle of complementarity. According to him, developing national capacities was primarily the responsibility of States, and the Court only had a limited role as a catalyst or facilitator of information sharing.

A second side panel organized by the Justice Initiative, together with the Human Rights Center at the University of California at Berkeley, highlighted approaches to outreach and ideas for overcoming common challenges.

Panelists at this event shared outreach experiences from the ICC, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia. The panel also featured a presentation from Interactive Radio for Justice, whose work engages communities in the Democratic Republic of Congo and the Central African Republic in discussions on justice issues via local radio programs.

Panelists noted that since the court operates far away from the thousands of victims of serious crimes handled by the ICC, it was critical to get the victims informed of the workings of the court, the status of the cases it was handling, and how the court worked to deliver justice to victims and affected communities.

The Open Society Justice Initiative, in conjunction with the International Refugee Rights Initiative, is also conducting a side panel on the critical role of nongovernmental organizations in the establishment and development of the ICC.