The health-related resignation of an International Criminal Court (ICC) judge has paved the way for Asia-Pacific governments to improve their legal representation in the international legal system, said the group Coalition for the ICC on Thursday.

ICC rules on geographical representation offer the Asia-Pacific region the opportunity to put forward candidates for the Hague-based Court, in an election to be held in June. The newly elected judge will hold his role for the remaining nine-year term which began in 2012.

“With this election, Asia-Pacific governments have the opportunity to strengthen peace, justice and the rule of law in international affairs by nominating highly qualified candidates for election to the world’s highest criminal court” said William R. Pace, convenor of the Coalition for the ICC, a global network of civil society organisations, that strengthens cooperation with the Court and ensures its effectiveness and independence.

According to the ICC Rome Statute, there is a framework for judicial elections, which fosters fair competitive elections and transparent gender representation. It includes minimum qualifications for judges, and ensures the representation of all major legal systems.

The Court is the world’s first permanent international court established to prosecute war crimes, crimes against humanity and genocide. It is composed of 18 judges, representing all regions and principal legal systems of the world.

The current Prosecutor of the ICC, Fatou Bensouda, is responsible for receiving any referrals and information about war crimes, within the jurisdiction of the Court.

“With only ICC member states able to nominate candidates, this election is also a compelling incentive for Asia-Pacific states close to joining the Court to take the final step,” said Amielle Del Rosario, the Coalition’s Asia-Pacific regional coordinator.

“By participating in this election, states such as Indonesia, Malaysia, Laos, Thailand and Vietnam could play a meaningful role in shaping the future of the Court,” she said.

Every candidate must have an excellent knowledge of and be fluent in at least English or French- the working languages of the Court.

In the interest of encouraging transparency in the nomination process, the Coalition will help publicise and raise awareness of the candidates put forward by governments, says William Pace. This includes consultations with civil society, professional and national legal associations.

Pace said in a statement, “Since 2003, the Coalition has been promoting informed, merit-based elections by governments by ensuring that the qualifications and expertise of candidates for elections are as well-known as possible.”

Usually, nominated candidates are requested to fill in questionnaires to provide additional information about their qualifications, to hold interviews and to assist to public seminars and debates with the other contestants and experts.

Nominees must be submitted by ICC member states by 31 March 2015.

Edited by Roger Hamilton-Martin

President of the International Criminal Court Sang-Hyun Song speaks at a U.N. event. Credit: UN Photo/Eskinder Debebe

By Joel Jaeger
UNITED NATIONS, Jul 22 2014 (IPS)

Despite making important strides in the first dozen years of its existence, the International Criminal Court (ICC) faces a daunting task if it hopes to create a reputation as a truly global institution.

With a skewed distribution of states parties and cases, the ICC has struggled to mature at its seat in The Hague as an effective and comprehensive purveyor of justice.“It is a global entity. It is not a universal entity.” -- William Pace

The Rome Statute, the ICC’s founding treaty, authorises the Court to prosecute individuals who have committed genocide, crimes against humanity or war crimes. It was adopted in 1998 and came into force in 2002.

Some 122 states have ratified or acceded to the Rome Statute, but many of the world’s most populous countries have remained outside its jurisdiction.

William Pace, the convenor of the Coalition for the International Criminal Court (CICC), told IPS, “[The ICC] doesn’t apply to half the people on the planet, but it applies to almost two-thirds of the member states of the United Nations, which is also over three billion people.

“It is a global entity,” he said. “It is not a universal entity.”

Richard Dicker, director of Human Rights Watch’s international justice programme, told IPS that “There is unevenness in state party representation, with Asia, the Middle East, and North Africa in particular being starkly missing.”

The most crucial impediment to the ICC’s global reach is the fact that the United States, Russia and China have not joined the ICC and continue to obstruct its functioning with U.N. Security Council vetoes.

Cases can be brought to the ICC by the chief prosecutor, by the countries themselves or by referral from the Security Council. The judicial functioning of the Court is independent of the United Nations, but when Security Council referrals become involved, politics can easily creep in.

Most recently, Russia and China prevented the Security Council from referring the conflict in Syria to the ICC on May 22.

Dicker called the United States, Russia and China key obstacles to the ICC’s future.

“These three who have remained outside the reach of the Rome Statute of the ICC have shielded themselves and, through their use of the veto on the Council, their allies from accountability when national courts in those countries don’t do the job,” he said at a recent press conference on the future of the ICC.

Without U.S. ratification of the Rome Statute, the ICC will find it difficult to achieve global legitimacy.

Dicker told IPS that the United States’ attitude has slowly evolved since the early 2000s, when “the [George W.] Bush administration was on a crusade against the International Criminal Court.”

In the wake of increased flexibility towards the Court in the later Bush years, “the Obama administration has significantly strengthened the cooperation afforded by the U.S. government to the Court,” he said. However, U.S. diplomatic support for the Court has only extended to “situations where the Court’s position and U.S. foreign objectives coincide.”

The U.S. Congress has not overturned the American Servicemembers Protection Act of 2002, also known as the “Hague Invasion Act.” According to Human Rights Watch, the law “authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the Court.”

The United States’ non-participation in the ICC damages the Court, but not irrevocably.

“It was constantly said throughout the treaty negotiation period of the 1990s and the ratification period of the last decade that if you don’t have the United States as a part of the ICC, it won’t work,” Pace told IPS. “Well, it is working, even with the handicap of having the great powers against it, but it is up, it’s running and I don’t know a week that goes by that someone doesn’t invoke the ICC.”

As the Court conducted its first investigations and prosecutions, it encountered significant opposition from the African Union (AU). All eight of the countries currently under investigation by the ICC are African, spurring accusations that the Court is unfairly targeting the continent.

The cases in Uganda, the Democratic Republic of the Congo, the Central African Republic, and Mali were referred to the ICC by the countries themselves, while the cases in Sudan and Libya were referred by the Security Council and the cases in Kenya and Côte d’Ivoire were brought to the Court by the chief prosecutor.

“The politics of Kenya and Sudan are escalating the tensions between the ICC and the African Union,” Stephen Lamony, the CICC’s Senior Adviser for Africa, told IPS.

The indictments of President of Sudan Omar al-Bashir and Uhuru Kenyatta – who was later elected president of Kenya – in 2009 and 2011 provoked criticism by the AU that the ICC was a tool of Western imperialism.

Why is a court based in Europe targeting African leaders, critics ask, but ignoring atrocities in Syria, Gaza, or North Korea?

The AU has been developing an African Court of Justice and Human Rights to compete with the ICC, “to ensure that Africans are prosecuted in Africa,” said Lamony.

However, at the end of June the AU voted to give sitting heads of state immunity from the incipient African Court, leading African grassroots activists to fume that the problem is not the ICC, but the culture of impunity amongst African leaders.

“The heads of state are trying to protect themselves, and the ordinary man and woman are saying ‘no, you should be held to the same standards. You should stop committing these crimes against us,’” Lamony told IPS.

Six of the 10 situations under preliminary examinations by the ICC are in non-African countries. If one of these countries is chosen to be the next object of investigation, the Court may dispel some, but not all of the criticism it has received for focusing on Africa.

According to Lamony, “At this stage, no African leader is threatening to withdraw from the ICC,” because the condemnation of the Court mainly comes from countries that are not states parties.

Despite the imbalance in the makeup of the ICC’s states parties and its Africa-heavy case load, much of civil society is convinced that its very existence changes the international landscape.

“Justice is not living in tents or trailers anymore. It is now a permanent institution in the ICC,” Dicker said. “And that fact alone spurs expectations and demands for justice where mass atrocity crimes occur.”

Desmond Tutu, the Archbishop emeritus of Capetown and one of the world's most renowned human rights activists. UN Photo/Jean-Marc Ferré

By Thalif Deen
UNITED NATIONS, Oct 10 2013 (IPS)

South Africa’s Desmond Tutu, the 1984 Nobel Peace prize laureate, has launched a global campaign to stop African nations from abandoning the Hague-based International Criminal Court (ICC).

Sudan and Kenya, whose political leaders are accused of war crimes and genocide, are leading the movement against the ICC and have already threatened to pull out of the tribunal."The Archbishop's campaign is a stark warning against Africa choosing impunity over justice." -- Alice Jay of Avaaz

Tutu, the Archbishop emeritus of Capetown and one of the world’s most renowned human rights activists, has appealed to leaders of South Africa and Nigeria, two of the most powerful countries in Africa, “to stop Sudan and Kenya from trying to drag Africa out of the ICC”.

The campaign has been launched in collaboration with Avaaz, a global civic organisation, described as one of largest online activist networks.

The 54-member African Union, which has demanded the ICC drop the case against Kenya’s leadership, will be meeting in Addis Ababa over the weekend to discuss, among other things, the role of Africa in the ICC.

Several African countries, including Uganda, Rwanda and Ethiopia, have criticised and opposed the upcoming trials of Kenyan President Uhuru Kenyatta and his deputy William Ruto, on charges of crimes against humanity in the 2007-2008 post-election violence that reportedly left over a thousand people dead.

In an email to over 26 million members of Avaaz, and responding to charges the ICC is a Western witch-hunt because most of its investigations have taken place in Africa, Tutu said, “I do not buy the spin the ICC has an anti-African bias. No.”

African leaders who abuse power, he argued, must be held to account for their victims.

“And I am on record saying there are certain former Western leaders, among others, who should join them,” he added.

The largest group of ICC members (31 out of 122) are from Africa and the majority of cases being investigated are in Africa, including Sudan, Uganda, Libya, Kenya, Cote d’Ivoire, the Central African Republic and the Democratic Republic of Congo (DRC).

Elise Keppler, associate director of the International Justice Programme at Human Rights Watch (HRW), told IPS Tutu is sending a key message on the importance of African governments supporting the ICC as a crucial court of last resort.

This is a message activists across Africa have been sending to their governments this week – as represented by a letter to foreign ministers signed by more than 150 groups from more than 35 African countries sent in advance of the African Union summit, she said.

William R. Pace, convenor of the Coalition for the International Criminal Court (CICC), told IPS Tutu and Avaaz are raising awareness that some African leaders are “promoting a great injustice in the name of justice.”

“These is little danger that these anti-ICC leaders can kill the ICC, but they could do serious damage to the Court, but mostly to their own reputations, to the truth that the ICC is a major achievement of Africa, and most sadly they can do damage to the hopes and lives of the millions of African victims of crimes against humanity,” he added.

The outpouring of support for international justice and the ICC by civil society and by African leaders like Tutu and former U.N. secretary-general Kofi Annan “is a greater story than tired, old tale of heads of government supporting impunity over accountability”, said Pace, a steering committee member of the International Coalition for the Responsibility to Protect (ICRtoP).

Alice Jay, campaign director of Avaaz, said, “The Archbishop’s campaign is a stark warning against Africa choosing impunity over justice.”

She said that in Congo, Liberia and Cote d’Ivoire, the ICC has brought hope to thousands persecuted by armies, militias and madmen.

“Hundreds of thousands of people are now calling on South Africa and Nigeria to lead the continent to save the ICC,” she added.

Far from being anti-African, Tutu said, the ICC’s chief prosecutor, vice-president and five of its judges are Africans and its interventions have saved countless lives in Africa.

“Those who fear being prosecuted by the ICC should not be allowed to lead Africa by the nose,” he added.

Asked about charges of anti-African bias, HRW’s Keppler told IPS that claims the ICC is targeting Africa are simply not based in fact. She said the majority of the court’s investigations came about because African governments asked the ICC to get involved. Two more came from Security Council referrals, she said.

The ICC’s office of the prosecutor acted on its own initiative in only one case – Kenya – and only after Kenya failed to pursue justice domestically.

That’s not to say there are no problems with the reach of justice, she said, pointing out that currently “some powerful governments are able to ensure that they can evade accountability before international courts by not joining the ICC or using their veto power at the Security Council to only refer certain situations to the ICC”.

The lack of referral of Syria to the ICC is case in point. Both Russia and China, two permanent members of the Security Council, have threatened to use their vetoes against any attempts to involve the ICC in Syria.

“But that should be impetus to governments African and non-African to call out double standards in the application of justice and press for justice to be possible wherever the most serious crimes are committed, not cripple the only permanent court with authority to try grave crimes,” said Keppler.