The International Criminal Court: Ten years on
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Foreign Office Minister Henry Bellingham spoke about the achievements of and prospects for the International Criminal Court at a conference marking its tenth anniversary.
Today is an historic day as we have a Nobel Prize winner here in the Foreign Office (Aung San Suu Kyi). It is also an historic day as we have you here to mark the tenth anniversary of the coming into force of the Rome Statute. I am honoured to address such a distinguished audience, and on a subject of such great importance. You represent some of the world’s leading experts in international justice. And while I usually feel comfortable talking about this subject given my own background in law, I am conscious that I am sharing the platform today with Sir Adrian Fulford - who will deliver his remarks a little later on.
As a concept, international justice dates back generations. And while the institutions that underpin it are still in their infancy, they have already established themselves in the international system.
Nowhere has this been more evident than in the landmark judgment made two months ago by the Special Court for Sierra Leone, against former Liberian President Charles Taylor. His fifty-year prison sentence has demonstrated to his many victims that even the most powerful cannot escape justice, no matter how long it takes to be administered. And it is when you think about the victims of these crimes that you begin to understand the importance of these institutions as a challenge to impunity. The International Criminal Court, now ten years old, is at the forefront of this.
I will argue today that the decision to establish the world’s first permanent international criminal court marked a watershed in international justice. But we should recognise too that it and States Parties can and must do better. So I will also share with you the UK’s vision for the Court in its next ten years, how I think we can overcome the challenges it faces.
And it is important that it does. Over the past year, we have seen countless examples - not least the absolutely terrible atrocities happening in Syria - that demonstrate why individuals must be held to account for their actions, and why we need to invest in the institutions to do that.
Now, while we are marking today ten years since the establishment of the International Criminal Court, we all know that its origins can be traced back much earlier. To the calls in the nineteenth century for a global criminal court - not least from Gustave Moynier, a co-founder of what became the Red Cross. Or, more recently, to 1948 - when the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The push to create a Court was renewed after the Cold War ended, and accelerated following the conflicts in the Balkans and Rwanda in the early 1990s. The tribunals established in their wake continue to dispense justice to this day.
So the International Criminal Court came into being at a time when the importance of international justice was becoming increasingly recognised. At its heart, the Court is an independent judicial body; and it is this judicial independence that is both the source of its legitimacy and the means by which it dispenses with justice.
But what made the Court different was its ambition for universality. Unlike those that had gone before it, or indeed the more recent Courts for Cambodia and Lebanon, the International Criminal Court aspired to create a framework for the proper dispensation of justice, both at the domestic and the international level. Its inception, therefore, was a recognition that justice can reach beyond the confines of national boundaries, that impunity could and must be challenged and that all are accountable for their actions regardless of where they come from.
Ten years in, the Court has established itself as the cornerstone of international criminal justice. After six years of hard work, it delivered its first verdict just a few months ago - convicting the Congolese militia leader, Thomas Lubanga, of war crimes. The investigations set in motion last year into the events in Libya and Cote d’Ivoire have been handled with speed and efficiency. And there has been progress in other cases, including the investigation into the post-election violence in Kenya in 2007-8. Collectively, these developments are engendering an increasing confidence in the Court, and in international justice more generally.
And the Court has been able to do this because of the way it was set up; because of its mandate. It does not seek to bypass or undermine the judicial processes of individual countries. It is not a political tool, nor is it something ‘imposed’ on the rest of the world by the West. The ICC is a ‘court of last resort’, providing for the primacy of national jurisdictions: it only steps in when a country cannot or will not investigate and, where necessary, prosecute fairly the most heinous of crimes. And, most importantly, it puts victims at the centre of its work.
Nor is it, as some have argued, a Court focused solely on Africa. Accusations to that effect are understandable: all 15 cases formally under investigation at present are, after all, from the African continent.
But I do not think we should get hung up on this. Other courts have dealt with similar issues in other places, as I have already highlighted. And the ICC itself is conducting preliminary examinations outside Africa, including in Afghanistan and Columbia. Civil society in Africa is strongly supportive of the work of the Court and the justice that it can and will deliver for many Africans. Nor should we forget that in every African situation where the Court has been involved, either the country in question, or where relevant, all African states on the UN Security Council, have supported the involvement of the ICC. Fatou Bensouda’s appointment as Prosecutor by the consensus of all States Parties is a clear indication of Africa’s important role in the Court. I hope it will go some way to addressing the concern expressed by some African countries that their voices were not being heard.
For our part, the United Kingdom has been a staunch supporter of the Court and its judicial independence. We are committed to the principle that there should be no impunity for the most serious international crimes. Indeed, we are actively engaged in all six existing international criminal tribunals - as a State Party to the Rome Statute of the ICC; as a member of the Security Council which oversees the tribunals for the former Yugoslavia and Rwanda; and as a major donor and member of the management bodies of the tribunals for Sierra Leone, Cambodia and Lebanon.
We have worked tirelessly to support and develop management and oversight of the Court, helping to ensure that it continues to mature as an efficient and effective institution.
The UK contributes almost 10% of the Court’s budget - which this year will amount to over €10m of a budget of €111m. We also donated £500,000 to the Court’s Trust Fund for Victims, to help assist victims as they rebuild their lives and communities. And I am pleased that following his election in December, Howard Morrison QC is set to become a UK judge at the ICC later this year, following in the footsteps of Sir Adrian Fulford.
It is clear, then, that we in the UK have much invested in the International Criminal Court’s success. We want to see the Court fulfil its true potential.
The President of the ICC, Judge Sang-Hyun Song, said himself on 4 June that whilst “we can be truly proud of what the ICC community has achieved…it is far more important that we recognise the shortcomings and the obstacles that remain.” And so we should: the Court is by no means perfect, not perhaps surprising given that it is still in its youth. Its critics understandably point to the completion of just one case in ten years, arguing that it is a poor return on the investment of dozens of governments - an investment totalling close to $1bn since 2003.
So the task before us is how we make the Court work better; how we ensure that its next ten, twenty, thirty years builds on what it has achieved over the past decade. The answer is by no means obvious, but I think there are three fundamentals we need to address.
The first is further establishing the ICC as a truly universal court. One strand of this is for us to continue to encourage all countries to become State Parties to the Rome Statute, particularly those that have signed but not ratified it. Alongside this, we should recognise that there is a need to demonstrate clearly that the Court’s reach extends beyond the African continent. This will only happen if the reach of the Court is universal and countries around the word take the step that those in Africa and Europe have done to shine the light of accountability on themselves.
Second, we need to address the issue of non-cooperation. I do not deny that this is a difficult issue, given that the International Criminal Court relies entirely on state cooperation to ensure that its arrest warrants are enforced. But as long as those indicted by the Court are allowed to evade justice - President Bashir is the most visible example, though he is not the only one - the credibility of the Court will continue to be questioned.
This is why the UK will continue to urge all countries to cooperate. We hope others will do the same, and commend those State Parties who have made clear that they would arrest ICC indictees should they visit, Malawi being the most recent example.
Last - but certainly not least; indeed, perhaps most importantly - the Court needs to become more efficient. Prudent budget management with a sharp eye for efficiency is crucial to this, particularly given the global economic backdrop.
I want to be clear now that I am not condoning the slashing of budgets. Indeed, the British Government supported an increase in the Court’s budget for this year, taking into account the additional cases it has taken on. But this agreement was on the basis that the Court would improve its budgetary processes; that it would work to reform its system of legal aid; and that it would undertake a review of personnel conditions.
It is also crucial, after ten years, for the Court to embark upon a review of its criminal procedures to ensure that the rules in place are effective.
We all recognise the additional complications of international justice, given the sheer scale of the crimes committed. But the Court is all too often criticised for simply being too slow. This is understandable: I remember one of the first lessons I learnt at the Bar was that, ultimately, justice delayed is justice denied. So it is heartening to see the Court take this message on board as it undertakes a ‘lessons learnt’ exercise to review its criminal procedures. The UK, as the facilitator of this process, will work with the Court to ensure it produces tangible results leading to the conduct of fairer, more expeditious trials.
It is vital that the Court makes progress in all of these areas if it is to fulfil its potential.
That said, I do not want these challenges to overshadow what the Court has achieved over the past ten years. It is right that we look for ways to make it work better. Indeed, failing to do so is ultimately failing the victims, who look to the Court and the wider international community to bring to justice the perpetrators of crimes against humanity, war crimes and genocide - irrespective of their status or position in public office.
But we should take this opportunity today to take stock. Would we have realistically believed even just twenty or thirty years ago that there would in 2012 be an established permanent, global court, a near universal means to challenge impunity? Because that is what the International Criminal Court has achieved.
I believe that the effects of the Arab Spring and the events of the last eighteen months show that we are living through an accountability revolution, where impunity will be challenged and victims will have a voice. Bodies like the ICC, the courts in Sierra Leone and elsewhere - these are helping to shine the light of accountability on those who commit serious international crimes. And the modern media is granting them fewer places to hide.
The UK is proud to have been at the forefront of this revolution, and we will work relentlessly to strengthen it further.