Fighting war crimes

DW: It's ten years since the Rome Statute was ratified and the International Criminal Court came into being - the first permanent international tribunal with jurisdiction over war crimes, crimes against humanity and genocide. Professor Schabas, how effective do you think the court has been?

Professor Schabas: I think the court has been reasonably effective, but perhaps it could have been more effective. It certainly has great accomplishments as it marks its ten years of operation. It has obtained a great deal of support internationally, not only by getting more than 120 states to actually join the court. For many of them that indicates not only a big political commitment, but also an important financial commitment. It also has obtained the support in particular contexts from some of the big countries that haven't joined it - like the United States, China and Russia -through the Security Council.

But, at the same time, it seems to have underperformed, at least when we compare it with other institutions, like the Yugoslavia and Rwanda tribunals, which, both of them, were able to judge scores and scores of people in a period of ten years; whereas the International Criminal Court has really just finished one trial, or hasn't even quite finished it.

So it's moved more slowly than I think anybody expected, but it's on a learning curve, and it's getting better, and I would hope that by the time we do this ten years from now, after it's been in existence for two decades, it will be up to speed and it'll be performing more effectively.

If we judge it by its deterrent effect, then we just need to be reasonably convinced that it's actually changing the behavior of tyrants and their ilk around the world, and I think there is some evidence of that.

You think there is?

Schabas: There is; I mean, it's difficult to prove. It's like proving that criminal justice deters violent crime anywhere; and you have violent criminals in law-abiding societies who get punished, and does that prove that criminal justice works, or does it prove that it doesn't? There's certainly lots of anecdotal evidence - that people are adjusting their behavior, and that attitudes to certain things, like the recruitment of child soldiers, have changed quite dramatically. And the stories that come out of Africa are that the recruitment of child soldiers and the use of them now is viewed as being a sure ticket to the Hague, and that as a result the behavior is changing - and that's all for the good.

Mr Abdallah, what do you say to the criticism that the court's been moving too slowly?

Fadi El Abdallah: Basically, I think that there is a need to put things in their context. First, of course, we are celebrating the 10th anniversary of the entry into force of the Rome Statute. But after this entry into force there was a need for the states that are parties to the Rome Statute to sit together, to elect the officials, to elect the president and the judges and the prosecutor, and then there was a need for the advance team of the ICC to create the ICC - to put in order the regulations of the court, to contract and recruit the persons to start the investigations: all that has taken two or three years.

The other thing that we need also to take into consideration is that the ICC is not working on one specific situation. The ICC is investigating and prosecuting crimes in seven current situations, which is a little bit different from what was the case for the special tribunals for Rwanda or for ex-Yugoslavia. Of course, implementing the arrest warrants needs the cooperation of the states, and on several arrest warrants we see that the states are not respecting their obligations to cooperate with the court. So there is a need for even stronger commitment and strengthened cooperation with all the states.

But still, one conviction in ten years – Professor Schabas, do you think that's a reasonable explanation?

Schabas: No, it's not good enough. I mean, I take on board the various explanations, but of course the other tribunals that were able to try many more people - they had to hire people too, they had to recruit people, they had to develop investigations. You know, the prosecutor of the International Criminal Court, back in 2004 when he was preparing the first budget, said that he needed a certain sum of money because, he said: “in the next year” - we're talking 2005 - he said: “I will start and finish my first trial.”

I'm just giving that as an example of expectations that clearly weren't met. But largely, I think Mr Abdallah's right: it's the challenge of trying to be a global court, rather than one that is targeted at a specific situation. The advantage of being targeted is not only that you're focused on one part of the world, but you have the backing of the person who's targeted you, which in the case of the Yugoslavia and Rwanda tribunals is the United Nations Security Council. You are clearly a political vehicle; although you are judicial, you're a court, at the same time you are an element of an attempt to solve what is fundamentally a political problem, a conflict.

So the problem now is that we have a court with a prosecutor who sits in his office - or her office now, because there's a new prosecutor who took over a few weeks ago - and looks around the world and has to pick and choose where to prosecute. And that's a profoundly political process, although the prosecutor tries to present it as being kind of a theoretically judicial process, where they evaluate just what are the most serious situations in the world.

I think that's created problems for the court. Amongst other things it's resulted in quite a cooling of attitudes towards the court in Africa, which was initially very enthusiastic. When Mr Abdallah speaks about problems of cooperation, he's talking about cooperation of African states, and African states have lost a little bit of their enthusiasm for the court, and I think that is part of the problem.

Yes, there have been accusations that the court is biased against Africa because of all the cases that it's prosecuted relating to African countries. Mr Abdallah, what do you say to that?

Abdallah: Actually, yes, that's a common misperception of the work of the court, to think that it is targeting only African persons. We need to understand two things. One is that the court does not target persons. The court is created in order to protect the victims of the most serious and hideous crimes. On the other hand, the ICC prosecutor has already opened preliminary examinations on different countries, not only in Africa. But there is a need to analyse the situation and to decide whether or not to open an investigation – that is also a matter that is important to explain to the people; that there are different elements that the prosecutor needs to take into consideration in order to open an investigation.

Mr Abdallah, let's look for a moment at the problem of non-cooperation that you mentioned earlier. The court doesn't have universal jurisdiction; it can only operate in states that have ratified the treaty, if I understand correctly. Does this not limit the court's effectiveness?

Abdallah: First, yes, the court does not have a universal jurisdiction. That's because it is a treaty-based court. It is not a creation of the United Nations, and it is a sovereign decision for each country to decide to join this court, or not. Of course, there are some big countries that are not state parties to the Rome Statute for the time being. Professor Schabas has already mentioned that on different occasions these big states have shown a little bit more enthusiasm or trust in the court, mainly through referrals by the Security Council, and we hope that this will continue and go on until they also decide to join the ICC.

Professor Schabas, are you convinced?

Schabas: No, I'm not entirely convinced. I think the explanation - to go back to the comments about Africa and why the court is only proceeding in situations in Africa - is the fact that, from the beginning, the prosecutor has been focused on Africa. It's the prosecutor who makes these determinations, and he's been talking about these other countries and places outside of Africa for many, many years, but nothing actually happens. I think part of the explanation as to why he's only in Africa - it's not because he's picking on Africa, or trying to persecute Africa. The explanation is that the prosecutor is nervous about going outside Africa because he bumps into permanent members of the Security Council, he bumps into powerful states, and he's taken a position of avoiding that kind of confrontation.

So I think that's why he's not in obvious places where I think he has the possibility of operating, like in Afghanistan, or in Gaza, or in Colombia. These are very important crises, but they're ones that are more likely to create tensions with important superpowers - I don't need to name them.

The court ultimately doesn't just objectively select the places it's prosecuting. There's an element of political outlook in that, and so the politics can make people either warm or cold towards the court. And right now the United States is very warm on the court, it likes the court, because it's convinced that the court is not threatening to it, and that it will be cooperative and will respect the strategic interests of the United States. But other countries don't like that.

So this is the dilemma for the court. To go out and get more members - they're going to join, not just because they're convinced of the independence and impartiality of the court, but because they feel that the court is courageous in terms of addressing the conflicts that are important to them, like the situation in Palestine. The prosecutor had the opportunity to go into Palestine. He chickened out, basically; he was afraid to do it. Now we have a new prosecutor, and she may react differently, and this may change the way the court is perceived.

This interview was conducted by DW's Charlotte Collins.
Editor: Gregg Benzow