Headlines from the ICC in the last two weeks, including from the Assembly of States Parties (ASP) (20 – 28 November) and from the Bemba trial, highlight conflicting legitimacy concerns at the Court. For some, these developments demonstrate serious weaknesses in the ICC system, while others see them as a sign of the Court’s flexibility and move into a more mature phase of operation.
The most prominent news emanating from the ASP was the Kenyan Government’s partially successful attempts to change the ICC’s legal framework. Its efforts are linked to indictments against Kenya’s current President and Deputy President related to 2007 post-election violence. Due to its effective diplomatic maneuvers, Kenya secured a change to the Rules of Procedure and Evidence to reverse the requirement for accused to be present throughout the trial. Receiving majority support amongst the 122 states parties, the rules will be amended to allow an accused to request to be represented by counsel during parts of their trial or to be ‘virtually’ present via video link.
Kenya’s more radical proposal, to amend Article 27 of the Statute to remove immunity for sitting heads of state – a key ICC innovation, consistent with the fundamental principle that no one is above the law – was advanced too late for debate at the 2013 ASP. However, its win on the rule change, and political support from other African states, will undoubtedly strengthen Kenya’s resolve to pursue this issue at future meetings.
In the midst of these debates, on 24 November the Court announced that it had executed five arrest warrants in relation to the long running Bemba trial. Jean Pierre Bemba, former Vice President of the Democratic Republic of Congo, is indicted for War Crimes and Crimes Against Humanity in the Central African Republic. Those arrested included Bemba’s lead defence counsel, other defence team members and Bemba himself for crimes related to corruptly influencing witnesses and knowingly presenting false or forged evidence.
The 12th ASP was also notable for other developments. For the first time, the ASP included a victims plenary session. The session addressed challenges in implementing the ICC’s victims provisions, especially given resource constraints, and the need to better respond to specific categories of victims, especially those of sexual and gender based crimes.
The large civil society presence at the ASP strongly supported the victims focus, presenting its own recommendations and holding associated side events. Contributing to these events, Brigid Inder, Director of the Women’s Initiatives for Gender Justice, and the Chief Prosecutor emphasized the need to strengthen measures to ensure victims of sexual and gender violence receive due recognition (Prosecutor’s statement and statements by partners of the Women’s Initiatives for Gender Justice available here and here).
The ASP also saw the evident growing financial and political support– led by Sweden (€4million), the Netherlands, Germany, and the UK – for the Trust Fund for Victims (TFV), responsible for the ICC’s assistance and reparations mandate. A funding boost of €6.5million over three years gives the TFV a more secure footing as it moves into its reparations phase. State donor support was also obvious through their support for independent report analyzing the TFV’s assistance program. While underscoring some of the ongoing challenges of implementing the Fund’s assistance mandate, the ICRW report noted the significant strides of the TFV in supporting victims in Uganda and the DRC. This includes provision of physical and psychological rehabilitation services, and material support, including innovative programs aimed at reintegrating victims of conflict-related sexual violence including through micro-finance initiatives.
These developments have sent different messages to the ICC’s diverse constituencies. The Kenyan Government’s success is seen by many African states as partial recognition of the ICC’s perceived African bias. A range of states also see the rule changes as rightly sensitive to the challenges of building peace and security in fragile states, where the absence of leading figures could cause major disruption. On the other hand, NGOs and some legal experts suggest the legitimacy of ICC is damaged by the ASP compromise. It shows, in their view, a willingness to react too readily to political demands and disregards existing ICC judicial rulings on this issue. In sum, it weakens the integrity of the ICC and risks further politicization of the Rome Statute framework . A serious related issue is the proposed clampdown by the Kenyan government on civil society groups, including those opposing its ICC moves.
Similarly there have been contrasting interpretations of the Bemba case developments. For those emphasizing the strict application of the rule of law, these arrests demonstrate the high standards of justice applied at the ICC. Those adopting a more negative view question the timing of these arrests and how they will interfere with the Bemba’s defence rights. Others are concerned that this move will further delay this already long-running trial, with all the consequences this has for the victims of these crimes. Most worryingly, given the recent re-ignition of the intense conflict in the Central African Republic, it reinforces victims’ vulnerability to reprisals and further violence.
There is less contention over the ASP’s victims focus with a strong consensus across most states, NGOs and the ICC officials that more can and should be done to recognize victims before the Court. Equally, the increased funding for the TFV was widely embraced. However, there is some growing recognition, at least in academic debates, about how this victims’ agenda might conflict with others, especially defence rights, and the broader tensions and conflicts facing the Court as it attempt to carry out hybrid mandate.
This brief survey of recent ICC developments brings into sharp relief the tensions and challenges that exist around the Court. It highlights some of the contours of the political terrain on which the ICC operates arising from its complex mandate, international focus, and engagement with civil society. Although new issues may emerge, political contestation is a permanent aspect of the ICC, which means legitimacy questions will also be an ongoing feature of its operations.