On Tuesday, 12 February, Columbia University World Leaders Forum hosted International Criminal Court (ICC) President, Judge Sang-Hyun Song, for an address titled The International Criminal Court and the Fight Against Impunity for Atrocity Crimes. University President Lee C. Bollinger gave the opening remarks, wherein he spoke of the electoral violence that wracked Kenya in December 2007. During that time, more than 1,000 people died and 600,000+ Kenyans became internally displaced. As a result, four individuals accused of crimes against humanity–Deputy Prime Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, Education Minister William Ruto, and radio executive Joshua Sang–are due to stand trial this spring at the ICC. Regardless, Kenyatta is running for president in next month’s elections in Kenya.
Judge Song began his speech with a brief personal background, before delving into the titular topic. He stated that the fight against impunity for atrocity crimes is far broader than the ICC, though the ICC is at the forefront. Believing that law is the best tool for prevention, he also stressed the importance of the UN, states, and civil society working together to end impunity. The UN and the International Court of Justice were created in the aftermath of World War II; together with the Nuremberg and Tokyo tribunals, the seeds of international criminal justice were planted. However, it soon took a backseat to the Cold War. The field further developed as a result of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1990’s. The Rome Statute was negotiated in 1998 and entered into force in 2002.
To date, the ICC has tried individuals from DRC, Uganda, the Central African Republic, Sudan, Kenya, Libya, Cote d’Ivoire, and Mali. In 2017, the Court’s jurisdiction will expand to include the crime of aggression. Because peace and justice are interlinked, Judge Song spoke of the mutually reinforcing relationship between the United Nations Security Council (UNSC) and the ICC. Darfur and Libya were both referred to the ICC by the UNSC, but the use of UN funds was prohibited. The UNSC can limit or expand the jurisdiction of the ICC, which bears judicial responsibility, while states are responsible for enforcement. Aside from the issue of money, the UNSC needs to take a more consistent and vigilant approach.
The ICC is a court of last resort and in order to strengthen national justice systems, Judge Song said development agencies need to be involved. The UN is also in a unique position, as it can advance the rule of law throughout the world. The ICC is not a hierarchical institution. All judges and prosecutors are independent and their own bosses. To carry out its mandate, the ICC must maintain its independence and integrity and remain non-political.
After discussing the above, the floor was opened for a Q&A session:
The first question was in regards to Kenya, and how the ICC plans to proceed with its trials without local support and cooperation. Judge Song said the cases will begin in April as originally scheduled, and won’t be affected by the political processes, though logistics are not easy. The ICC constantly consults the host government on an array of issues.
The second question focused on the tension between international stands and sovereignty/non-member states. According to Judge Song, countries, perhaps most notably the United States, have their own reasons for their reluctance to sign onto the Court, including a fear of abuse of power by the prosecutors and a fear of unnecessary political influence by the UNSC. In terms of the US/President Obama, there is close cooperation on matter of mutual concern and intelligence sharing. Judge Song also noted that the US government dispatched military advisers to Uganda to aid in capturing Joseph Kony and other LRA members. The ICC endeavors to strengthen national capacities.
Finally, 1/3 of the 18 ICC judges must be women, but today, 11 out of 18 are, which may have some bearing on the development of jurisprudence. Obviously, there are no American judges so there is no American influence, such as the practice of witness proofing. Ad hoc tribunals have jurisdictional primacy over the ICC, which has a strong desire to develop its own jurisprudence.