Where the Pen is Not Always Mightier than the Sword: The ICC

The International Criminal Court (ICC) is an international tribunal and intergovernmental organization committed to the investigation and, where warranted, trial of the most serious crimes: genocide, crimes against humanity and war crimes. Based in The Hague, in The Netherlands, the Court was founded on July 17, 1998, upon the adoption and creation of the Rome Statue, with the Statute taking effect upon its ratification by 60 states on July 1, 2002, marking the official establishment of the ICC.

Today, the court has 124 State Parties, with Georgia having joined in 2003. While the Court has no retroactive jurisdiction (it only deals with crimes committed on or after the aforementioned date), it is a permanent establishment whose actions, prosecutions and investigations are independent: it is immune from any political influence or interference, nor can it be subject to a special mandate from the UN. Moreover, the ICC is willing and able to try and/or investigate any individual, no matter their rank, role, or status : national amnesties or immunities cannot be invoked to block the Court’s jurisdiction. However, the Rome Statute does curtail the extent of the ICC’s jurisdiction in that it only has a mandate for crimes that were committed on the territory of a State Party, committed by nationals of a State Party, or referred to the Court by the United Nations Security Council (UNSC). It is definitely no coincidence that the United States, Russia, China, India, Israel, and Saudi Arabia, amongst others, have not ratified the Statute.

On October 3, representatives of the Court addressed members of the media in an informative session at Tbilisi’s Marriott Hotel. Among those present was the ICC’s Registrar, Herman von Hebel. The Registry was in Georgia for discussions on establishing a country office in Tbilisi and appointing a representative thereof. The talks are at an advanced stage, with the opening of the office scheduled for early 2018. Its will be to establish a flow of constant communication between Tbilisi and the Registry in the Hague. While it will initially start as small office, it has the potential to grow, its scaling up and down depending on the level of activities and the financial means that the court has available.

This represents an important development as the Registry fulfils a number of crucial roles within the ICC. Along with providing daily services to the judges, it is responsible for the public information and outreach of the court in its totality. Moreover, the procuring and facilitation of any order of the judges, and anything that the defense councils needs for proceedings, is also the responsibility of their office. Furthermore, the Registry is in charge of the logistical and practical support of the court in its totality. Perhaps of more relevance to Georgia, and the ongoing investigations of the ICC into the alleged war crimes and crimes against humanity committed during the 2008 war, is the Registry’s responsibility for witnesses. Witnesses are entitled to support and protection before, during, and after any investigations and trials that take place in which the witnesses have provided testimony. This is a crucial role of the Registry as, without witnesses, no trails can take place. Indeed, the Registry is by definition neutral: providing services for all parties in the proceedings, ensuring that the proceedings can take place in a fair and efficient matter, and supporting the prosecutor and defendants.

Phakiso Mochochoko, Director of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor, was also present at the October 3 session. The Prosecutor’s Office is sometimes described as the engine and driving force of the Court. It is the part that gets the wagon rolling, so to speak, with its main function being to investigate the aforementioned gravest of crimes. The Office is independent, impartial, and does not take instructions from anyone. It respects the rights of the accused, namely that they are innocent until proven guilty beyond any reasonable doubt, and the decisions made by the Office are done so on the basis of law and evidence. It is evidence, and only evidence, that drives the investigations of the Office; no political or other considerations are taken into account to influence its activities. A case stands or falls based on the collected evidence; only once there is sufficient evidence in both quality and quantity will proceedings start. The focus falls upon those individuals that bear the greatest of responsibility, and if the evidence conclusively identifies one as the culprit, then no matter their rank (President, minister, oligarch, etc.), the Office will move Heaven and Earth to ensure that due justice is served. There is no time limit for evidence collection: it continues until the individual’s guilt is either proven or cleared beyond any form of doubt.

The Prosecutor’s Office is in the midst of conducting numerous investigations in Georgia: their work has been ongoing since the end of January 2016, and will not be affected by the opening of the Office of the Registry at the start of next year. Concerning the roles of all three parties in the 2008 war, “the ICC investigations focus on alleged crimes committed in the context of an international armed conflict between 1 July and 10 October 2008 in and around South Ossetia, including crimes against humanity: murder, forcible transfer of population and persecution; and war crimes: attacks against the civilian population, willful killing, intentionally directing attacks against peacekeepers, destruction of property and pillaging.” Moreover, if there is a connection to crimes committed after this temporal field, then they can be investigated, too.

Indeed, despite a refusal to cooperate from both Russia and South Ossetia, investigations in Georgia, with the full cooperation of the government, are in full swing. Representatives of the Prosecutor’s Office are commuting between Georgia and The Hague roughly every month, as the highly confidential proceedings and evidence procuration take place. Everything has to be done in the utmost secrecy to ensure that witnesses are protected and the investigation is not sabotaged by any of the belligerent parties. As mentioned before, there is no time limit for evidence collection, the Court will continue its work as long as is necessary to build a solid case: at the end of the day, the Georgian case, along with all concurrent investigations, is about justice, irrespective of who and where the victims are.

Any work of the Prosecutor’s Office requires the cooperation of all parties involved to ensure the fairest outcome, even though the investigations themselves are conducted exclusively by the Office itself. As Mochochoko highlighted, it would be in the interests of both the Russians and the South Ossetians to cooperate with the Court, for the latter can only work with the evidence at their disposal, and without the former’s input, valuable evidence that may be able to prove innocence has the potential to be lost. Yet herein lies the caveat and Achilles heel of the International Criminal Court: without a police force or army of its own, it can only issue but not enforce any arrest warrant that it hands out for any individuals that are from non-State Party nations. Moreover, only those countries that have ratified the Rome Statute have an obligation to arrest and extradite any individual(s) which are summoned to trial and/or by the Court.

It is said that the pen is mightier than the sword, but in the case of the International Criminal Court, the opposite seems to be true: it is the very limitations of its Rome Statute that prevent it from applying justice on a universal scale. Or perhaps, the old maxim has indeed proven true once more, for it is no accident that the Statute was written in this way, and that great powers like Russia, the United States, and China (all with permanent seats and veto capabilities on the UNSC), amongst other nations like Saudi Arabia, Turkey, and Israel, have refused to ratify it, allowing them to act with impunity, outside its jurisdiction. While the work of the the ICC may very well be impartial and free from political manipulations, given the realities that be, one could be forgiven for giving credence to the accusations of the Court being but a puppet of the great powers, created with specific handicaps to further the latter’s freedoms in the international arena.

On the subject of these shortcomings and limitations of the ICC, Mochochoko told GEORGIA TODAY:

“Ideally, we are seeking universality, which means that everybody in the world should be part of the ICC and the Rome Statute. Unfortunately, that is not the case. Joining the ICC Statute is a voluntary and sovereign act of any state; no one can be forced into doing so. What we are doing at the court is proving our credibility by working hard, by showing through the cases that we are independent and impartial, and not in any way politically motivated. Hopefully, this will persuade other countries to join the ICC and see value in it. For now, we have to work with what we have. There are many cases being brought to the ICC, the UNSC one of them. We have no influence over the Security Council, over who it refers or does not refer: that is purely their prerogative. Are they political in doing that? Yes they are, but as soon as the matter comes to the ICC, it becomes a judicial process. Irrespective of how a matter comes to the ICC, it is treated in the same way, going through the same legal process, tests, and criteria. The Statute as it is now is what it is. It is not for the Court but for the State Parties to change that: the Rome Statute is an instrument and document of the State Parties themselves. If the State Parties want to change the way of the referral to UNSC, it is only for them to do. Is it an ideal situation? Maybe not, with the benefit of hindsight. Initially, when that power was given to the UNSC, it was really to try and cater to situations where crimes could be investigated in countries that were not State Parties. Is it still a good thing to give the UNSC that power ? Is it a good thing not to give the UNSC any role in Court proceedings ? These are matters that the States themselves have to look into and decide on”.

Mate Foldi

09 October 2017 16:11