Court in the act

The International Criminal Court has been called 'an experiment of huge international proportions' - but its advocates say it will work, and the us will sign up.

Victoria MacCallum looks at the issues involved

Last month's inauguration of the International Criminal Court (ICC) in The Hague was a timely event.

During periods of conflict, the need to safeguard international justice is more important than ever, and UN Secretary-General Kofi Annan's promise that the ICC would 'supply the missing link in the international legal system: a permanent court to judge the crimes of gravest concern to the international community', is more relevant than ever.

The court's jurisdiction has been active since 1 July 2002, when the Statute of Rome came into force, and its hefty mechanism has been grinding ever since: the 18 permanent judges were sworn in at the inauguration; the announcement of a chief prosecutor is expected imminently; and the European Commission has given almost 1 million to the Council of Bars and Law Societies of Europe (CCBE) to develop a training programme for lawyers appearing before the ICC (see [2003] Gazette, 20 March, 6).

Defence lawyers before the court will also have to abide by a special code of conduct, and discussions are ongoing about whether it will be developed by the International Bar Association (IBA), the International Criminal Bar Association or the International Association of Prosecutors.

Whichever code is eventually adopted - or if the three are combined - the common belief is that the court will begin to operate in about a year.

The first case investigated is likely to be that of Congolese rebel leader Jean-Pierre Bemba over claims that his movement massacred and ate civilians.

'It takes time for everything to be set up, but because the prosecutor's role is so crucial, once he has been appointed, the wheels will really start turning,' says Mark Ellis, the IBA's executive director.

Either the prosecutor initiates his own investigation, or cases are referred to him by the UN Security Council or a state party to the ICC.

Either way, the decision on whether to proceed comes down to him.

'If he decides that there is a reasonable basis to proceed, he then has to present all his evidence before a pre-trial chamber of three judges, in what is essentially a mini-trial,' says Mr Ellis.

'The judges then decide firstly whether there is sufficient evidence to warrant an investigation, and secondly whether the case or individual falls under the court's jurisdiction.'

The ICC is only able to investigate claims of genocide, war crimes and crimes against humanity committed since 1 July 2002 which have been referred to it by the UN Security Council, or took place either in the territory of a state which has ratified the treaty or by a citizen of such a state.

As just 76 states have ratified the treaty - of the 139 which signed it - this has given rise to concerns about the court's limited jurisdiction.

Some of the big names that have not signed include China, India, Pakistan, Iraq and Turkey; while those that have refused to ratify include Israel, Iran and Russia.

The US is also not involved with the court, arguing during the negotiations that its soldiers may be the subject of politically motivated or frivolous prosecutions.

Although in one of his last acts as president, Bill Clinton did eventually sign the treaty, the Bush administration is vehemently opposed to the court and has withdrawn all support.

Moreover, it has persuaded 22 individual member states - including the UK, Italy and Spain - to sign agreements guaranteeing US citizens immunity from prosecution.

This caused widespread unhappiness last year, with Amnesty International criticising the US administration's 'relentless campaign to undermine the effectiveness of the ICC', and Human Rights Watch claiming that the Bush administration is 'sworn to destroy this court'.

Mr Ellis, however, maintains that the effects of the US non-involvement with the court will be seen on a more practical level.

'The cost of running the ICC will be very high, and the lack of financial support from the US will be felt sharply.

The court has no troops or police and will have to rely entirely on state parties to co-operate,' he says.

'The US's political power is also very important, and will be missed: it supported the International Criminal Tribunal for the former Yugoslavia, and the fact that Milosevic is now in the dock is in large part due to the US pressure placed on the Belgrade government.'

However, Mr Ellis stresses that the door is always open for the US - and any other country - to become party to the ICC, and he predicts that it will eventually sign up.

'The US is worried that the ICC will take away its national sovereignty and jurisdiction, but once it sees it begin to operate, those fears will be assuaged.'

The court operates on a strict principle of 'complementarity': it is designed to complement rather than override a member state's justice system, and it has jurisdiction over domestic legal processes only when the state is unwilling or unable to carry out the prosecution itself.

When the pre-trial chamber decides to pursue an individual who is a citizen of a state party to the ICC, the state is expected to take over the investigation.

The ICC only intervenes if it considers that the investigation is a smokescreen designed to protect the individual from international justice, or if the justice system is unable to cope with the prosecution.

'I predict that the ICC will be particularly useful in post-conflict situations, when a country's judicial system has crumbled,' says Mr Ellis.

'The idea of a state being unwilling to investigate its own citizens is unlikely, because if they have signed up to the ICC then they have accepted its rules.' If anything, he argues, the danger is that the court will not have enough cases to investigate, because 'it will not take much for countries to keep the ICC at bay'.

For the ICC to maintain its credibility, and hence attract doubting countries into its fold, it is vital that lawyers appearing before it are properly trained and regulated.

Last July in Montreal, lawyers from more than 80 law societies and bar associations met to form the International Criminal Bar Association, to provide legal representation for defendants.

Malcolm Fowler, former chairman of the Law Society's criminal law committee, represented the Society at the conference, and says: 'The integrity and independence of the ICC depends on there being a truly independent criminal bar.

If it were not for the association, the court would choose who was acting for both the prosecution and the defence, and it's desperately important to improve the equilibrium of the situation.'

The CCBE was closely involved in the formation of the association - one of its Dutch members is currently vice-president - and is involved in negotiations with the IBA and International Association of Prosecutors to thrash out a code of ethics for prosecution and defence lawyers.

However, CCBE secretary-general, solicitor Jonathan Goldsmith, says its future involvement with the court will be based on training.

'The grant we have been given by the European Commission will be used principally to train lawyers from central and eastern Europe about issues such as international law, the background to the ICC and how to appear before it,' he says.

The money will also be used to set up a permanent on-line portal where training materials will be available for all lawyers.

So, the wheels of international justice are grinding slowly into motion: training programmes are being established; ethical codes are being developed and potential prosecution cases are fermenting.

An unwieldy monster it may well appear to be, but Mr Ellis believes that this is irrelevant.

'The court is an experiment of huge international proportions, and how it looks today isn't how it will look in ten years' time.

What's important is that it is the first court ever set up to investigate and try people for the worst crimes in humanity, and this is of vital importance to every country in the world.'