UN diplomatic conference for the establishment of an international criminal court, Rome 1998 (Photo: Flickr/ICC-CPI)

Looking beyond The Hague

16 July 2018 by Stephanie van den Berg, The Hague (The Netherlands)

The past few weeks have not been good for the public image of the International Criminal Court. After the much discussed and dissected acquittal of Congolese politician Jean Pierre Bemba the court has been embroiled in internal conflict.

At a time when the court is celebrating 20 years of its founding Rome Statute, the office of the prosecutor seems determined to be on a collision course with the judges over the Bemba acquittal, even though the appeals chambers verdict is final and without appeal. The prosecutor, even after the appeals chamber verdict, stressed she had a strong case against Bemba and that the judges departed from the usual standard of review on appeal.

After the earlier reported very public slap on the wrist from the ICC president, the office of the prosecutor has now entrenched itself further with its critiques of the Bemba case. Besides the war crimes charges for which he has now been found not guilty, Bemba is still awaiting sentencing for his separate conviction for witness tampering (in the war crimes case). The Office of the Prosecutor (OTP) is now trying to use the witness tampering affair as a kind of backdoor to get another trial chamber to cast doubt on the validity of the war crimes acquittal.

In a last-minute 21-page document filed a day before the sentencing hearing, the prosecution alleges that the war crimes acquittal was caused by judges relying on evidence by witnesses influenced by Bemba. In the courtroom prosecutor Kweku Vanderpuye urged the judges in the witness tampering case to give Bemba the maximum five-year sentence – which would mean the former Congoloese vice president, now happily holed up at home in Brussels, having to return to the court’s detention unit for some 6 months. Vanderpuye lobbied for such a decision to “set things right once and for all”.

“Does the OTP submit before this chamber that the appeals chamber majority in the main case relied on evidence that they knew was tainted when they acquitted Mr Bemba?,” presiding judge Bertram Schmitt asked, getting straight to the point. Vanderpuye, while not answering with a straight yes or no, gave an uncomfortable and lengthy legal explanation, essentially agreeing with judge Schmitt. The prosecutions argument that the appeals chamber judges were misled because they did not grasp the extent of the witness tampering is slightly awkward. One of the judges, judge Howard Morrison was on both appeals panels and actually confirmed Bemba’s conviction for witness tampering.  All in all it  is unlikely the Bemba et al. witness tampering case judges will agree with the prosecutors that their fellow judges of the appeals chamber did not properly administer justice. Bemba’s lawyer Melinda Taylor dismissed the prosecutions attempts as “playing to the peanut gallery”.

The bigger picture

Talking to ICC watchers ahead of the 20th anniversary of the Rome Statute on July 17, the current state of the ICC is obviously a hot topic. With the Bemba acquittal we are looking at a court that has been operational for 16 years, cost roughly 1.5 billion euros so far and has only three definite convictions for war crimes and crimes against humanity. And now we have a very public row about Bemba’s acquittal. All of which surely cannot help the court’s unfortunate image as a detached inward-looking institution with little feeling for what is happening on the ground.

But when you follow a court so closely you sometimes need to be reminded of the bigger picture. If you look back at the high expectations for the court in 1998 when the Rome Statute was signed, the ICC was - in a way - doomed to failure, says commentator Thijs Bouwknegt. “It was supposed to prosecute perpetrators, and act as a deterrent for future crimes, to establish truth and bring justice and reparations for victims. It was supposed to do so many things that judges cannot really do at all,” he explains.

As the court settles into the reality that while it tries to be impartial, politics – both international and national – have a big impact on who ends up in the dock in The Hague, says Canadian academic Mark Kersten. And he reminds us that the ICC is not the only measure of success of the Rome Statute. He points to the fact that the Rome Statute codified a lot of customary international law in a quite generally accepted document, which also makes it easy to use by local actors even in countries that have not signed up for membership of the court. The statute was the first instrument in international law to include specific definitions of sexual and gender-based violence and those have been used for instance in India to change legislation on sexual violence. “That is one of the unpredictable ways in which domestic actors have used it as a tool,” Kersten says.

And with the new wave of hybrid courts set up in Central African Republic and South Sudan, the Rome Statute is again the first place people look for elements when they draft the mandate of those tribunals. “It’s already a gold standard, so that’s where you would start,” according to Kersten.

When we evaluate 20 years since the Rome Statute we need to look beyond the internal squabbles and also see the ways in which the document is shaping domestic jurisdiction and setting standards which impact people far beyond The Hague.