‘Politics is the main hindrance for the ICC’ was the main conclusion drawn from “Building Restorative International Justice: the ICC of the Future”. The topical debate took place in London at the Royal Commonwealth Society.
As a concept, the panellists were practically unanimous in favour of an international court that will hold leaders and individuals accountable for their crimes and serve as a deterrent. Donald Deya, CEO of the Pan African Lawyers Union, went further by praising the court's positive social impact. He argued that "the whole discourse surrounding the ICC has ended up triggering attention on issues, and causing motion, that would not otherwise have been there."
The day’s discussions were started by Dr. David Hoile, Director of the European Sudanese Council, who stated that the punishment of international crime was one of the noblest aims of the ICC. However, in practice the common analysis was that the ICC as an institution has so far failed to fulfil its purpose.
The track record of the ICC was called to question when Dr. Phil Clark of The School for Oriental and African Studies (SOAS) cited the circumstances of the Lubanga trial for crimes committed in DR Congo, as an example of how “flimsy” evidence gathered through intermediaries has lead to weak cases being put forth to the Court. This statement was backed up by barrister, Rodney Dixon of Temple Chamber Gardens, who also stressed on the urgency of the ICC to review the evidence that underpins cases put forward and also criticised the Court’s failure to self-evaluate the way in which it operates.
However, it was the ICC’s political ties that were the most prominent subject of scrutiny across the panel. Speakers criticised that the Court was being used more as a political tool rather than a legal institution. The influence of ICC Chief Prosecutor and his ability to refer individuals to be tried at the court was deemed to play a role in the court’s political agenda. Controversy surrounding Luis Moreno-Ocampo and Libya was brought up as the panel recalled Ocampo’s consideration for Libya to try Saif Gaddafi in Libya despite the absence of legal framework in place, as required by the Rome Statute, to prosecute him domestically, whereas a similar request by Kenya, that has a much stronger judiciary system in place was denied. Karim Khan (QC) highlighted such irregularities when stating: "Kenya, a mature democracy, with massive constitutional changes... can not be trusted [by the ICC], and yet a regime that has been condemned for many decades, that has been a pariah, that has no pedigree in the rule of law, that - unlike Kenya - has no international criminal court act, the prosecutor [of the ICC] is willing to say 'no, we trust you'."
The much anticipated question - Is Africa on Trial? - drew mixed opinions from the panel of speakers. Courtney Griffiths, defense lawyer for former Liberian leader Charles Taylor, gave a defiant ‘yes’ in answer to the question and quoted the late Robin Cook, who infamously declared that “this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States”. Prof. Hans Köechler, Chair of Political Philosophy at the University of Innsbruck, also spoke on the ICC having a predominant focus on Africa and questioned the excessive influence of the UN Security Council on the court. Elizabeth Evenson of the Human Rights Watch on the other hand, disagreed that international justice has been exclusively concerned with Africa, though admitted that the ICC has been selective in the cases brought forward. However, she placed blame on international politics rather than that the Court itself. But it was Prof Julius Nyang ‘oro, previously with the African and Afro-American department, University of North Carolina, who raised eyebrows when he criticised African nations for signing the Rome Statute without scrutinising it thoroughly and becoming victims of their own “intellectual laziness”. The event was attended by high level legal experts including Sir Geoffrey Nice, (QC), deputy prosecutor at Slobodan Milosevic's trial and Dr. Sarah Nouwen Lecturer in International Law, Faculty of Law, and University of Cambridge