The First Decade of the International Criminal Court

• Author: David Stoelting
• Pages: 367-382

367

HTHE MATURATION OF A NEW COURT

On July 1, 2002, the International Crimi nal Court (ICC) —the fi rst perma nent,

treaty-based cour t designed to prosecute genocide, war crimes, and cri mes

against humanity—came to li fe under the weight of enormous expectat ions.

Eleven years later, the ICC has become an i ntegral pa rt of the inter national lega l

and politica l landscape. As of November 2013, there have been 20 cases bef ore the

ICC arising from situations in eight countries; 32 arrest warrants or summonses

to appea r have been issu ed. Five person s remain i n custody; a nd 12 suspec ts are at

large. Whenever atrocities or international crimes take place, the ICC increas-

ingly is consid ered as a possible venue for prosecution. As a result, t he “shadow of

the International Criminal Court”1 falls far and w ide.

The ICC’s legitimacy has been bolstered in la rge part by the mea sured

approach it has taken. Its initia l cases have ari sen from situ ations where grave

crimes appea r to have occurred a nd no court, other than the ICC, can i nvesti-

gate and fairly prosecute. The perception of the ICC as a competent t ribunal i s

underscored by the UN S ecurity Cou ncil’s two referrals to the ICC, of the Da r-

fur and Libya s ituations. The ex perience of the ICC’s fir st decade has to some

extent vind icated the ICC’s proponents who arg ued the necessity of a last-resort

criminal court focusing on atrocities when national courts are unable or unwill-

ing to prosecute.

1. Luis More no-Ocampo, Keynote Add ress at Council of Foreig n Relations, Feb 4. 2010,

at 11, www.icc-cpi.int.

CHAPTER 22

The First Decade of the

International Criminal Court

David Stoelting

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368 CHAPTER 22

The ICC, with its ex panding caseload, now has more tha n 700 employees of

99 nationalit ies, and an an nual budget exceedi ng 112 mi llion euros. The ICC’s

Rome Statute has been rat ified by 122 countr ies from all regions of t he globe. The

first prosecutor, Luis Moreno-Oca mpo of Argenti na, completed his nine-year

term in July 2012 , and the ICC’s second decade begins with a new prosecutor,

Fatou Bensouda of The Gambia, a veteran i nternational crim inal prosecutor who

had been Ocampo’s top deputy. The initial s late of 18 ICC judges, who are nat ion-

als of states parties, was elected by the ICC’s governi ng body, the Assembly of

States Parties (A SP) in early 20 03, and since then the ASP has selected new judg es

as terms ex pire and vacancies arise. 2

As the world’s first permanent treaty-based cri mina l tribuna l, “the Court is

meant to become a beacon for litigation in international criminal law.”3 And at

least for now, the ICC’s basic machinery seems to be f unctioning. As of late 2013,

two tria ls have been completed and a third is in the f inal stages, with more t rials

scheduled for 2014. Eight preli minar y exami nations are underway. More than

five thousand v ictims of t he atrocities under review by the ICC have been given

the right to par ticipate in the ICC proceedings.

The ICC’s 18 judges sit in Pre-Trial, Trial, and Appeal c hambers, and t he

workload generated by the increasing number of cases is daunt ing. The Lubanga

case, for example, has generated dozens of dec isions and mult iple interlocutory

appeals. At times, the judges have asserted themselves decisively. For example,

when the prosecution in t he first t rial failed to produce to the defense cer tain

materials, the judges stayed the proceedi ngs and lamba sted the prosecution for

endangeri ng the accused ’s right to a fair tr ial. The judges have a lso exercised

their crit ical oversight functions, and have dismissed charges aga inst four su s-

pects as a resu lt of evidentiary shortcom ings.

HA CRIMINAL COURT WITH GLOBAL REACH

Given the ICC’s limited budget and g lobal jurisdiction, it has been crucia l that

only high-i mpact defendants, those beari ng the most responsibilit y for the crimes

alleged, be charged. The prosecution, therefore, has targeted high-level suspects,

such as a cur rent head of state (Dar fur), a former head of state (Côte d’Ivoire),

2. As of November 20 13, the 18 judges of the ICC are Sang-Hy un Song (Republic of

Korea), Sanji Mmasenono Mona geng (Botswana), Cuno Tarfu sser (Italy), Hans-Peter

Kaul (Germany), Ak ua Kuenyehia (Ghana), Erkki K ourula (Finla nd), Anita Ušacka (L at-

via), Ekaterin a Trenda filova (Bulgar ia), Joyce Aluoch (Kenya), Christi ne van den Wyn-

gaert (Belg ium), Silvia Alejandra Fer nández de Gurmend i (Argentina), Kuniko Oz aki

(Japan), Mi riam Defensor-Sant iago (Philippi nes), Howard Morrison (United K ingdom),

Olga Herrera Ca rbuccia (Dominic an Republic), Robert Fremr (Czech Republ ic), and

Chile Eboe- Osuji (Nigeria). Anthony T. Carmona (Trinid ad and Tobago) submitted h is

resignat ion as an ICC judge in March 2013 i n order to assume offic e as the president of

the Republic of Trinid ad and Tobago, and the ASP will elect h is successor. Three judges

whose terms have ex pired continue in off ice to complete trials: Fatoumat a Dembele

Diarra ( Mali), Sylvia Steiner (Bra zil), and Bruno Cotte ( France).

3. The P rosecutor v. Callixte Mbar ushimana, No. ICC-01/04-01/10, para. 38 (Dec. 16, 2011).

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