International Criminal Court Faces Challenges

By Lisa Bryant

The Hague
09 April 2009

Just four months after the International Criminal Court began its first trial, its authority is being challenged as Sudanese President Omar al-Bashir resists an international arrest warrant and African critics claim the court is biased.

Created in 2002, the Hague-based International Criminal Court is among several tribunals established in the wake of terrible brutalities, from the 1994 genocide in Rwanda, to the mass killings in Sierra Leone and the former Yugoslavia. But it is the first permanent war crimes court with a jurisdiction that spans the globe, although only member states are bound by its mandate.

The court's chief prosecutor, Luis Moreno-Ocampo, says even though the court is relatively new, it is beginning to make a difference. 

"In five years of operation, we are pretty effective. We have opened investigations in world cases. We prosecute the ones responsible. We have arrested four of them. My four arrests are number ones, leaders of militias who commit the crimes. And we have 13 others in four different countries and we have a world impact. We are proving this is an idea which is flying - and it is time to join the idea," he said.

The court's first trial began in January against Congolese militia leader Thomas Lubanga. Also facing war crimes charges is Jean-Pierre Bemba, a former vice president of the Democratic Republic of Congo, who is in the court's custody. The ICC has also issued an arrest warrant for the head of the Ugandan Lord's Resistance Army militia group Joseph Kony, who remains at large.

The court's most publicized case to date is Sudanese President Omar al-Bashir, who has traveled to several African and Arab countries in defiance of an international arrest warrant Moreno-Ocampo issued against him in early March. International law experts like Anthony Dworkin say the fact Mr. Bashir is flouting the warrant, and so far seems to be getting away with it, shows the limits of the court's abilities.

Dworkin also points to rising criticism in Africa that the court is biased, because so far it has only taken on African cases. 

"There is a sort of rising sentiment in Africa that is beginning to see the International Criminal Court as a court primarily to be used against African countries. I think this is very dangerous and also very misleading. It is in the nature of the court that states submit themselves voluntarily to its jurisdiction. And indeed in the three cases apart from Darfur [the case against Bashir] these countries themselves asked the court to step in and look at the situations in their countries," he said.

Moreno-Ocampo makes a similar argument, and argues the court is on Africa's side, because it is protecting the African victims of atrocities. That includes the conflict in Darfur, Sudan, which he accuses Mr. Bashir of masterminding. 

"What did I have to do with the women being raped in Darfur today, I had to ignore them? What did I have to do with the child soldiers that Lumbanga recruited, I had to ignore them? No, that is not my statute," he said.

Besides arresting Mr. Bashir, experts say the criminal court faces other major challenges. One of them is membership.

A number of key countries, including Russia, China and India, have not joined the court. Nor has the United States, although its unclear whether that will change under the Obama administration.

The question of the court's jurisdiction is also key when it comes to the Palestinian Authority, which petitioned the ICC this year to investigate the Israeli offensive in Gaza. Neither the Palestinian Authority nor Israel are members of the court, and the Palestinian Authority is not internationally recognized as a state.

But Moreno-Ocampo says he is waiting for more information before making a decision, although experts doubt he will ultimately take on the case. The prosecutor argues that an international system of justice is needed today more than ever. 

"If someone raped and killed my daughter, no-one can force me to reconcile and love the killer. But I cannot kill the killer. So law allows people, even enemies, to live together. Law allows coexistence. And in the world today, in which everyone is connected with each other, we need a new system to manage violence," he said.

Moreno-Ocampo says the prosecution will probably wrap up its arguments in its first trial, against Lumbanga, by May. He expects the court to deliver a verdict on the case by the year's end.