Global Policy Forum

By Margaret Burnham

This month the International Criminal Court is celebrating the tenth anniversary of the Rome Statute. Taking this opportunity to assess the work of the court, on July 11, Human Rights Watch released the 250 page report, Courting History. Developments in two current cases make clear that the ICC is not yet at the end of its fragile naissance, and capture the central conceptual ambiguities in international criminal justice. To great international fanfare, on July 14, 2008, ICC Prosecutor Luis Moreno-Ocampo announced charges against Sudan President Omar al Bashir, and while Moreno-Ocampo will need judicial sanction to obtain the arrest warrant necessary to proceed with a prosecution, the indictment is a bold and risky step.

And in June 2008, the Office of the Prosecutor hit a snag that places in jeopardy its case against Thomas Lubanga Dyilo, one of three militia leaders charged with international crimes in connection with the long-running conflict in the Democratic Republic of Congo. The Prosecutor's actions in each of these cases illuminates the tension between peacekeeping and justice, and the vulnerability of an international court that is largely dependent on the cooperation of often hostile domestic actors.

In the Bashir case, Moreno-Ocampo must now sustain the gravest charges in the international crimes arsenal against Sudan's top leader. Proceeding on the basis of what he deemed a green light from the Security Council, Moreno-Ocampo's 10 count indictment alleges that Bashir controlled forces executing a plan of genocide against the Fur, the Massalit, and the Zaghawa ethnic groups of Darfur. In his public statement, Moreno-Ocampo argued that Bashir "mobilized the entire state apparatus, including the armed forces, the intelligence services, the diplomatic and public information bureaucracies, and the justice system" to destroy the targeted groups.

Some commentators argue that the facts may not support the charges of genocide, war crimes and crimes against humanity against Bashir. Others have suggested that even if the case can be made, the criminal case will harm efforts to maintain a stable peace between the North and the South, and will engender retaliation against Darfuran civilians from the regime in Khartoum. In actual fact, the indictment may embarrass Bashir in world opinion and embolden him in Sudan, but it places him in no real legal jeopardy until he leaves office. The prosecutor's efforts to capture two lower ranking alleged war criminals in Sudan, against whom ICC arrest warrants were issued last year, have yielded nothing, and indeed, Bashir placed one of the men in charge of the country's ministry of humanitarian affairs. It's safe to say no one expects that Bashir will end up in to The Hague anytime soon even if the ICC does issue an arrest warrant.

Having aimed at the King with little chance of bringing him down, at least not in the short term, one must ask what Moreno-Ocampo seeks to accomplish for the ICC. His own explanation is that he had little choice but to indict Bashir in light of the evidence amassed over several years by the Office of the Prosecutor. While it is possible that the criminal process could derail the peace process, it is as likely that the indictment will put pressure on Khartoum to negotiate. Moreover, the ICC must ultimately be seen as a backstop to domestic judicial systems. It is only when local systems are unavailing, for political or other reasons, that the ICC should engage its limited resources. Effectively immunized from prosecution in Sudan, Bashir could have escaped accountability if the OTP chose to close its eyes to his crimes.

In another case - the first International Criminal Court case to approach a trial - Moreno-Ocampo now faces a commonplace prosecutorial dilemma: turn over to the accused sensitive, exculpatory information or drop the charges. The accused, Thomas Lubanga Dyilo, is one of three militia leaders charged in connection with the long-running conflict in the Democratic Republic of Congo. Moreno-Ocampo opened an investigation into the conflict in June 2004, focusing on the Ituri district in the northeast, where the worst violence occurred. First detained in March 2006, and accused of grave violations of international humanitarian law, specifically, recruitment, enlistment and use of child soldiers, Lubanga's trial garnered much attention when it commenced this past June, as it marked an important new phase of the ICC's operations six years after the Rome Statute came into effect.

But on June 13, shortly after the trial got underway, the trial chamber, acting in accordance with international fair trial standards, ordered the prosecutor to turn over to Lubanga's defense team 200 documents deemed to contain exculpatory material. When the prosecutor declined to do so, the judges ordered Lubanga's release from custody and the dismissal of the charges against him. Lubanga is now being held pending a decision of the ICC appeals chamber. At present the parties are trying to work out the discovery glitch, but initially the prosecutor seemed to be putting the case in jeopardy; the OTP claimed that the documents contained sensitive material that might expose the statement givers to dangerous retaliation, and that they had obtained the information in confidence.

The prosecutor was in an unenviable but not unusual position. During its preliminary investigation of the conflict in the DRC and before settling on its four targets, the ICC collected many thousands of pieces of paper and interviewed thousands of witnesses. Much of the information came directly from the United Nations, which had itself conducted an extensive investigation into the continent's deadliest and longest war.

At the inception of its DRC investigation - the ICC's first - the approach of the OTP was to garner as much information as possible and work through its evidentiary obligations later. Often, if required to produce sensitive material that he cannot or will not disclose, a prosecutor can reshape the case along the lines of the admissible evidence by reframing or dropping certain charges, but this would have been difficult in Lubanga's case, for the indictment was narrowly streamlined to focus on the crimes involving child soldiers. The cases against the remaining DRC defendants are far more expansive, covering crimes against humanity, including murder, sexual slavery, and attacks against civilians. There was less room for the prosecutor to maneuver in Lubanga's case, and the ruling of the trial chamber was based on its reading of what was required by international fair trial standards.

A dismissal of Lubanga's case would likely have a profound impact on developments on the ground in Ituri. By some accounts, the arrest of Lubanga had the desired deterrent effect - dubbed by some the "Lubanga syndrome" - on other militia leaders who responded to the message that the use of child soldiers is a war crime by expelling children from their forces or instructing them to lie about their age and to hide from child protection workers. Lubanga's release would undermine the ICC's role in the peace process; it would be seen by some to signal the inability of the ICC to interrupt the deeply entrenched culture of impunity in the Congolese war. Indeed, even before the Lubanga trial court ruled in favor of dismissal, the OTC's DRC investigation had come under criticism for moving too slowly and timidly, and for bias in targeting only militia leaders in Ituri while ignoring those in Kinshasa and the neighboring states of Rwanda and Uganda who armed the militia and frequently directed their activities.

The developments in these two cases make clear that the ICC has yet to work out its role as the preeminent institution in international criminal justice. The Lubanga case makes clear that the OTP must abide by the rules that constrain prosecutors everywhere, including supplying the defense with exculpatory material, but the ICC prosecutor's office is like none other in the world.

Its broad jurisdiction over international war crimes means that the ICC must satisfy two masters: it must meet fair trial standards and also make an effective intervention in an ongoing violent conflict. The OTP must reach beyond the individual to grasp the full narrative sweep of the war - its targets are more likely to resemble Adolph Eichmann than Jack the Ripper. As in the Bashir case, the war crimes prosecutor cannot pursue every crime and criminal but rather must select a representative few. And, given the leadership role of such targets, their crimes are likely to be notorious, but the prosecutor must nevertheless avoid the show case syndrome in favor of the presumption of innocence.

Moreno-Ocampo's office must walk a challenging tightrope in these two important cases. Ironically, in the long run, even if the prosecutions help to deliver peace, the OTP, to whose fate the ICC is wedded, will be judged on its ability to catch and convict Jack the Ripper.

About the Author: Margaret Burnham is a Professor of Law at Northeastern University and a Global Policy Forum Board member.