The International Criminal Court (ICC) has spent over $600 million since it was set up five years ago. Not one day of trial has yet been held, only three accused are in detention, and just seven others have been publicly indicted. Various factors have contributed to this lamentable record, but one obvious cause is geography.
The ICC is based in The Hague. This seems a reasonable choice for an institution designed to prosecute international crimes, and to whose jurisdiction 106 countries have now submitted. In practice, however, all of the ICC’s investigations are in sub-Saharan Africa: Darfur, eastern Congo, Uganda and the Central African Republic.
This geographic focus is entirely justified, and is likely to continue for the foreseeable future. Millions of innocent civilians have been massacred, sexually assaulted or forcibly displaced in armed conflicts in those regions of Africa.
No other place on earth has suffered crimes on that scale. Domestic courts are unable or unwilling to punish these crimes. In the conflict-torn Congolese province of South Kivu, 26,000 sexual assaults were reported in 2006 alone – undoubtedly a mere fraction of the actual number – yet almost no one has been charged for these crimes in domestic courts.
The Hague, however, is more than 6,000 kilometers away. Systematically holding trials at that distance makes no sense. Criminal justice in practice is an intensively face-to-face business, regardless of characterisation of the crimes. Witnesses need to be found, interviewed and often persuaded to cooperate in a process that they may not entirely trust. Consultations with local communities are indispensable to obtain a breadth of views on who is most culpable.
Once the trials begin, an uninterrupted flow of witnesses is essential to efficiency. Transporting witnesses from sub-Saharan Africa to northern Europe is expensive and fraught with opportunities for delay. Finally, high-level, personal contacts must be continuously maintained to pressure states to cooperate in the investigation of crimes that they might prefer to sweep under the rug.
The impact of distance on cost can be gauged by comparing the track record of the ICC with that of the tribunals set up by the UN Security Council in the 1990s to prosecute crimes committed in Rwanda and the former Yugoslavia.
By the time the Yugoslavia tribunal had spent $600 million, more than 50 individuals had been indicted, of whom about half had been put on trial. More than 30 accused will be on trial this year on an annual budget that is still less than that of the ICC.
The Rwanda tribunal has been similarly cost-effective. Both tribunals are located an easy flight from the crime-scenes under their investigation: the Rwanda tribunal in neighboring Tanzania, the Yugoslavia tribunal in The Hague.
Distance also impacts on the legitimacy and transparency of trial proceedings. Most victims, community members and local journalists will never be able to afford the trip from Africa to The Hague. The ICC’s field offices in the region host no judicial activity and have no real decision-making authority.
Occasional visits by hand-picked local leaders to The Hague and other public relations activities are a poor substitute for direct community access to judicial and investigatory activity. A recent UN survey confirmed that average northern Ugandans perceive the ICC to be illegitimate and remote.
This perception undermines a fundamental purpose of international justice: to facilitate reconciliation by giving communities a sense of catharsis through the trial process.
At least some Rwandese and ex-Yugoslavs of modest means can travel to those tribunals, if motivated enough to endure a long bus journey. Both tribunals host large permanent press corps representing diverse perspectives, broadcasting and reporting almost daily on the trials. Both tribunals are within the same regional space as the communities affected – East Africa and Europe, respectively. It’s not quite a local courthouse, but it’s as local as international justice can be in light of the security considerations.
The ICC should follow these examples and move its headquarters, or a substantial part of its judicial and investigatory resources, to sub-Saharan Africa. Tanzania, with its long and durable traditions of democracy and peace-making, offers the ideal combination of proximity, security and infrastructure.
As a matter of fact, the courtrooms and facilities of the UN’s Rwanda tribunal will soon be available as its mandate comes to an end. Huge cost-savings could be used for more investigations and more justice for crimes that would otherwise go unpunished.
And putting the hub of the institution where it is most needed would not prevent investigations and trials elsewhere, should the need arise. An international institution whose headquarters is in sub-Saharan Africa, with satellite offices elsewhere, would be a healthy inversion of the usual order of things.
The ICC shows no signs of making such a move. 100 million euros was recently earmarked for a spacious new permanent headquarters, predicated on the idea that most trials will be held, and staff based, in The Hague. This is an impractical organisational model, centered in the wrong place. The bricks and mortar of justice have to be closer to the communities affected by crimes. In short, international justice needs to think globally, and act locally.
– International Herald Tribune
