The court\u2019s detention unit is not bulging with arrestees; later this month the former president of the Philippines will have his time in court to confirm the charges against him, and in Germany a Libyan detainee is waiting to have his transfer to The Hague confirmed. But there are no other suspects lined up ready to prime the three courtrooms\u2019 pumps.<\/p>\n\n\n\n
A dry white season<\/h2>\n\n\n\n
In this context of trial starvation, how does a court prove to the world that it is still relevant \u2013 when it is also under sanction from the United States<\/a>, facing cyber-attacks<\/a> from unknown forces and where states \u2013 nominally its supporters \u2013 are proving reluctant to arrest<\/a> suspects? <\/p>\n\n\n\n When the current prosecutor took over in 2021, together with his two deputies, the emphasis has been on generating arrest warrants in the two situations delegated to the court by the United Nations Security Council \u2013 Libya and Darfur Sudan. Then, the invasion of Ukraine by Russia and Israel\u2019s war in Gaza have both led to high stakes manoeuvring for the court and arrest warrants that have no prospects of being executed in the current political climate. In both Afghanistan and Myanmar, the office of the prosecutor has targeted very high-level suspects, thereby continuing to expand beyond the original focus of the court on conflicts in Africa. <\/p>\n\n\n\n Uganda\u2019s rebel war in the north has been over for many years. It was one of the early \u2018wins\u2019 for the ICC back in 2004 when president Yoweri Museveni met prosecutor Moreno Ocampo in a hotel in London and asked for ICC intervention<\/a>. But the most important target, the leader of the LRA, Kony, later disappeared into the dense forests bordering Uganda. His arrest warrant<\/a> was issued some twenty years ago. He was not arrested even when a US force was operating in the region.<\/p>\n\n\n\n \u201cUltimately, the ICC had to do something to show that the arrest warrant was still relevant,\u201d says Micheal Scharf, former Dean of Case Western Reserve University School of Law, and president of the American branch of the International Law Association. \u201cAs an institution, they have to survive; the ICC is going through a hard period with sanctions, and states that ignore their obligations, so they need cases that they can deliver,\u201d adds professor of criminology at Groningen University Alette Smeulers. But beyond that, Scharf believes: \u201cIt\u2019s important for the world to say, no, this is not just a Uganda problem, this was a worldwide international criminal. And for the sake of humanity, he needs to be brought to justice\u201d.<\/p>\n\n\n\n Where did this idea of confirming the charges without the defendant come from? Back at the beginning of the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1990s the judges strengthened Rule 61 in their statute \u2013 i.e. public reconfirmation of charges without the accused presence. It was a period in which there was a rising sense of \u201cdesperation\u201d, says Diane Orentlicher, law professor emerita at American University and author of a book about the ICTY, born out of the \u201cfrustration\u201d that \u201cstates were not cooperating in helping to apprehend suspects\u201d.<\/p>\n\n\n\n The tribunal, she adds, \u201cwanted to show that it wasn\u2019t impotent \u2013 and say, \u2018we\u2019re doing something, we are not helpless in the face of States\u2019 inaction.\u2019 Some also hoped that Rule 61 hearings might help pressure the UN Security Council, which had created the Tribunal, to act\u201d. But the procedure provoked \u201crobust debate,\u201d says Orentlicher. \u201cSome worried it risked violating defendants\u2019 rights; others wondered if it might backfire, taking pressure off States to arrest suspects. Then, as States started to arrest suspects, and the court became busy conducting trials, Rule 61 faded into insignificance.<\/p>\n\n\n\n She stresses also that it was a different issue to that of Kony. That he has never been arrested is \u201cnot for lack of vigorous effort\u201d, including a multi-million-dollar reward for his capture and the deployment of a special unit to track him. Rather, she suggests that \u201cwith no reported sightings of him in a while, there\u2019s a fear that victims\u2019 voices may never be heard\u201d and \u201cif the hearing succeeds in reinvigorating efforts to arrest Kony, that would be a success\u201d. <\/p>\n\n\n\n \u201cRight now, it\u2019s not a politically sensitive case,\u201d says Smeulers. \u201cEveryone would agree that Kony is a perpetrator. He has lost most of his power, and he\u2019s clearly a guy who did horrendous things, especially against children\u201d.<\/p>\n\n\n\n Scharf suggests \u201cwith the passage of time, it was pretty much a foregone conclusion that [the office of the prosecutor] would try this, because you don\u2019t want to allow this case to be forgotten\u201d. But he also sees the speculation that has already started about whether \u201cthe ICC prosecution are teeing themselves up for future cases\u201d. Scharf points to the long-standing warrants against former Libyan dictator\u2019s son Saif Qaddafi and that against former president of Sudan Omar al-Bashir. \u201cBoth of those are similar to the Kony case because of the length of time. The standard is that the individual has to be someone who cannot be found,\u201d he says.<\/p>\n\n\n\n However, when it comes to any potential procedures concerning the court\u2019s most high-profile suspects \u2013 Russian President Vladimir Putin or Israelian Prime Minister Benjamin Netanyahu \u2013 he cautions that it is much less likely: \u201cWe know where they are. They\u2019re sitting in their office in the Kremlin or Jerusalem. But depending on how you define \u2018not to be found\u2019, it could be that this process could be used against them\u201d.<\/p>\n\n\n\n In that sense, \u201cthe Kony confirmation in absentia is a trial run in an important precedent for these other bigger cases,\u201d says Scharf.<\/p>\n\n\n\t Kony faces 39 charges<\/a> for his alleged role in the LRA in ordering the killing and mistreatment of civilians, for making \u201cstrategic decisions regarding the manner, intensity and focus of attacks against civilians\u201d, for maintaining \u201cthe system of abductions during the charged period, for issu[ing] orders to all LRA to abduct civilians\u201d, and for \u201cdevis[ing] and enforc[ing] the LRA rules for the mistreatment of women and girls\u201d. <\/p>\n\n\n\n He is also accused of personal responsibility for \u201cusing children as escorts and abducted women and girls to act as domestic servants and as forced conjugal partners\u201d and for controlling his fellow LRA commanders through a system of rewards and threats. The document containing the charges describes attacks during the early 2000s on schools, and multiple internal displacement camps. He is charged for attacks on civilians, murder as a crime against humanity and a war crime, torture and \u201cpersecution as a crime against humanity, on political grounds, of civilians perceived by the LRA as being affiliated with, or supporting the Ugandan government\u201d. <\/p>\n\n\n\n The prosecution focus is on Kony\u2019s crimes in relation to women and children. Kony is accused of forced marriage, enslavement, rape, torture, persecution on the grounds of gender and age, sexual slavery and forced pregnancy. The allegations include detailed descriptions of what happened to two victims who were forced to become Kony\u2019s wives, repeatedly abused and raped and made pregnant by him.<\/p>\n\n\n\n That\u2019s not surprising, says Smeulers, professor of criminology at Groningen University: \u201cThe ICC has to pick its cases smartly; on the issues that they think are important such as children and sexual crimes, but also where they already have the evidence.\u201d<\/p>\n\n\n\n\u201cFear that victims\u2019 voices may never be heard\u201d <\/h2>\n\n\n\n
Setting a precedent? <\/h2>\n\n\n\n
Crimes against children, women and girls<\/h2>\n\n\n\n
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