Sunday 22 Jul 2018 | 14:57 | SYDNEY
Sunday 22 Jul 2018 | 14:57 | SYDNEY

The International Criminal Court, nine years on

24 March 2011 12:56

Bronwyn Lo is a lawyer and an intern with the Lowy Institute's Global Issues Program.

The UN Security Council has shown some uncharacteristic teeth lately with its Libya resolutions. First, its unanimous referral of the situation to the International Criminal Court (ICC) for investigation and, second, its decision to implement a no-fly zone over Libya, authorising 'all necessary measures' to enforce the zone and to protect civilians.  

Recent events seem to bode well for the condition of the international legal system, as countries like the US indicate a reduced antipathy toward its institutions. But, in the aftermath of the Libya resolutions, questions invariably turn to their execution. As the implications of the second resolution play out in Western military strikes on Libya, it is worth taking stock of how the ICC has fared so far in holding states and individuals to account since its inception in 2002.   

Prior to Libya, the ICC Prosecutor had opened investigations into five state situations:

  • The Democratic Republic of Congo (DRC): Referred to the Court on 19 April 2004, this has given rise to four cases against five suspects, two of which are at the pre-trial stage and two at the trial stage. Four of the suspects are in detention, but one continues to evade arrest. The first trial is said to be nearing completion
  • Uganda: Following a referral to the Court on 29 January 2004, the Prosecutor has opened one case against five senior members of the Lord's Resistance Army. One of the five suspects has since died, and arrest warrants remain outstanding against the other four. 
  • Central African Republic: There is one case at trial stage, with the suspect in custody. This situation was referred to the ICC on 7 January 2005.
  • Darfur, Sudan: Came before the Prosecutor on 31 March 2005 and is presently the subject of three cases at pre-trial stage against five suspects, including the President of Sudan. Two of those suspects have appeared voluntarily before the ICC in response to summonses, while the other three remain at large.
  • Kenya: On 31 March 2010, the Pre-Trial Chamber of the ICC granted the Prosecutor's request to investigate alleged crimes committed in Kenya between 1 June 2005 and 26 November 2009. On 8 March 2011, the Pre-Trial Chamber issued summonses to appear to six Kenyans. They are due to make their initial Court appearances on 7 and 8 April 2011 in two separate cases.  

This cursory overview suggests a few observations. First, all the situations under investigation are African. A charge of African bias, though, would overlook the varied methods by which they came before the ICC. Three – the DRC, the Central African Republic, and Uganda – were referred to the ICC by the governments of those states. The fourth, the conflict in Darfur, was (like Libya) referred to the Court by the UNSC. The fifth, in Kenya, was opened at the Prosecutor's request. Presently, the Prosecutor is conducting preliminary examinations in other states including Afghanistan, Colombia and Georgia.

The second observation evinces a more serious problem: a relatively high number of outstanding arrest warrants. The ICC's work has been hampered by poor cooperation from governments, including those of Sudan and the DRC. This is a problem endemic to international law.

Yet, any means of accountability is better than none at all — and, as the UNSC's recent actions show, state cooperation can come from unexpected quarters.

Photo, courtesy of the ICC, of its oversight and legislative body, the Assembly of State Parties.