Multiple Avenues for State Cooperation with the International Criminal Court – Part Two

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Yesterday’s post (see here) discussed witness protection and the release of temporarily or permanently acquitted defendants as potential avenues for State cooperation with the ICC. Today’s post will consider further opportunities for such cooperation and conclude with some general observations on the issue.

Detainees’ family visits

Many detainees cannot afford to take their families with them to The Hague or to fly them over for regular visits. It is, however, important that such visits take place: both for the defendant, as experience shows that defendants who maintain contact with their families are more cooperative, less violent and in better physical and mental health, but also for the family members themselves, who do not stand accused of having committed any crimes.

For this reason, the Assembly of States Parties of the ICC has set up a Voluntary Fund – again external to the main ICC budget. Four States used to contribute to this Fund, but one of these withdrew from the Statute (the Philippines) and the other three (Germany, the Netherlands and Switzerland) stopped providing funding for some time. The Voluntary Fund ran out of money in July 2019. As a result, requests from Bosco Ntaganda’s family, for example, to visit him after his conviction by the Trial Chamber last July, while he is awaiting sentencing, have had to be rejected. Germany, the Netherlands and Switzerland contributed again at the end of 2019 but the situation remains dire as there is no appetite from the States to sustainably contribute to the Fund.

In light of previous difficulties with detainees, being cut off from family risks having disastrous effects leading to a need to segregate them (costing considerably more and might create the need to rent even more space in Dutch prisons, thereby increasing the ICC’s expenditure) or necessitating extended stays in the sick bay (leading to a comparable increase in costs and the failure to fulfil the ICC’s main task: to bring the accused to trial).

Arrest warrants

In several cases where an arrest warrant has been issued, it is relatively well-known where the accused are, but they are protected by certain States so the arrest cannot be executed. To some extent, this is less of a problem than it may seem: the ICC’s promise lies in the continuous, never-ending fight against impunity. Someone against whom there is an open arrest warrant has to spend their entire life on the run. This may be do-able for someone in their twenties, for a number of years, but it is hoped that the prospect of having to be on the run for decades, into old age, would serve, as such, as a deterrent in and of itself.

Over the past twenty years, the ICC has built up a good network of local contacts, but not the intelligence to detect and tackle the mechanisms that protect someone like Omar Al Bashir (although recently, Sudan did agree to hand Al Bashir over to the ICC). States could assist the ICC by declassifying and sharing intelligence, insofar as possible. The problem remains that only 122 States are members of the Rome Statute – and not some of the most powerful States such as China, India, Russia and the USA.

Conclusions

When it comes to States’ reluctance to host relocated witnesses, and even more so, (temporarily) acquitted defendants, immigration fears are arguably used as a decoy: the numbers of relocated persons are very low (a couple of dozens, not even hundreds). The symbolic value and the political sensitiveness, however, lies in the visibility of these cases: extensively televised, written and blogged about. In this context, politicians seem afraid of signing their political death warrant if they accept to host, in particular, a defendant awaiting appeal as this risks being seen in the media as offering housing to the worst criminals in the world.

However, Parties to the Rome Statute must accept that establishing a universal independent and impartial court to adjudicate international crimes, means that such a court may well acquit certain accused if the evidence of their guilt is found to be insufficient. A court where a conviction is a certainty, can hardly be seen as in accordance with the rule of law and fair trial rights.

As the proverb goes: “who says A, must say B”. Because they instituted the ICC, States have to accept their responsibility for the persons who are ‘processed’ through this system, be it as witnesses, defendants, victims or family members. Relocation is problem-solving with ‘live’ cases and it should not turn into playing with people’s lives. Politicians should make the effort and the courage to explain this to their constituents.

So far, Parties seem not to have anticipated the problems that can arise in this regard. For example, in a domestic criminal context, imprisoning a person acquitted in first instance (as happened with Ngudjolo) could well give rise to a human rights claim. And what would have happened if The Netherlands would not have allowed him to stay? Acquitted persons’ status has been left entirely unsettled.

Moreover, Ngudjolo’s ICC acquittal was not taken into account in his asylum application decision as the ICC requires proof ‘beyond reasonable doubt’ for a conviction, while asylum application in the Dutch system can be rejected if there are “serious reasons” to believe someone committed serious crimes—a much less strict requirement. As a result, he was deported to the DRC and potentially exposed to torture or other forms of inhumane treatment. Legally, this is perfectly possible and has also arisen in criminal vs civil domestic cases (for example, the OJ Simpson saga in the US) but it would seem to make little sense that someone would have been better protected if he had been found guilty of war crimes, rather than acquitted. Serious legal issues might also arise relating to the Netherlands’ non-refoulement obligations not to send people to a country where they are likely to face torture.

Similarly, the Parties to the Rome Statute seem not to have fully appreciated the need to create a clear framework for the management of detainees’ property – leading for example to compensation claims against both the ICC and individual parties in the wake of the Bemba acquittal (as discussed here).

Peter Lewis’ answer was to ‘create a network of States to share the burden and never ask anyone for too much’. Yet that still leaves sometimes vulnerable people entirely at risk of impromptu politically motivated decisions. Insofar as the pure financial aspects are concerned (such as funding for family visits), a better solution therefore would be to absorb such costs in the ICC budget, rather than making this dependent on separate funding.

One final question is how the ICC can survive changes in the political landscape of its Parties. For example, how could it ensure the cooperation of a State in an ongoing case where the investigation was initiated during the reign of a sympathetic government which is now out of power and which has been replaced by a government that is opposed to, if not outright hostile to, the ICC’s prosecution of the accused(s)? This situation unfolded for example in the prosecutions of Kenyatta et al.

Regardless of whether the current proposal suggested by the ICC judges to adopt decisions within a certain time frame (and thereby increase efficiency) is enacted, any ICC cases will continue for years. The Registry considers the need to cooperate with host countries in a manner akin to a company investing in a foreign country. Like an investment project, a cooperation structure has to be able to survive a change in government, so the ICC has to think beyond the immediate case at hand and engage with local academia, judiciary, civil society, political parties, etc. so as to cement its position in the State. The ICC has to be seen as ‘giving something’ to the State, such as witness protection expertise, so as to strengthen the country in more than a financial way. Such capacity-building can, for example, result in offering training to the domestic judiciary, so as to build broad support.

The ICC should also seek to obtain support from non-Member States – which is not entirely utopian: for example, Bosco Ntaganda was arrested thanks to US assistance. With regard to ICC Member States, the ICC should support compliance (for example through helping with the fall-out of local political repercussions) rather than sanction non-compliance by withdrawing aid.

The ICC, however, undoubtedly struggles with an image problem: it needs to find the right narrative. In the past, much of the communication form the ICC has emphasised abstract terms about its ‘mission’, rather than justifying the concrete actions taken as part of such mission. It has focused on its ‘independence’ rather than explaining how it can make a difference on the ground in a concrete way. There is a price to pay for State cooperation, but it is a sensible place to invest political and financial capital.

One concrete effort of the ICC is to use voluntary donations to bring community leaders from situation countries such as the Central African Republic to The Hague, to explain the functioning of the Court and to sit in on hearings. These leaders were not only representing victim communities, but also religious groups and political parties (including the party of which the defendant was a member) in order to get its message out.

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