The imperfect miracle

An International Criminal Court judge insists it remains a success despite slow progress and the dissatisfaction of African members

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The International Criminal Court may be imperfect – but its existence is a “miracle”.

That is the view of presiding judge Cuno Tarfusser, who during his time at the atrocity court has overseen numerous high profile cases – including issuing arrest warrants for Sudanese president Omar al-Bashir for genocide, and Muammar Gaddafi, his son Saif-al Islam and the head of the Libyan Secret Services for crimes against humanity.

He has been awarded an honorary doctorate for his contribution to Edge Hill University’s department of law, where he collaborates on research projects and delivers conference speeches.

Tarfusser said: “If you had asked me 15 years ago if such a court would ever come into existence I would have said you are crazy. No one would have thought this could happen in the near future, yet now we have this court.

War crimes

“It’s absolutely imperfect and controversial and one can really feel on a daily basis that it doesn’t work as well as it could. But we have to be happy that it exists at all so we can work on something concrete and positive.

“Criminal justice is an expression of a state’s sovereignty, so the fact that so many countries have given up part of this to a supranational institution is a miracle, you could say. Without this we wouldn’t even be talking.”

An Italian, Tarfusser worked as an investigating prosecutor in his own country for more than two decades before being nominated and elected as an ICC judge in 2009 – seven years after its launch in The Hague. His term of office ends in 2018.

A court of last resort, the ICC can independently launch investigations in any of the 124 states that have ratified its treaty, the Rome Statute, in cases where national governments are unwilling or unable to do so. It can also turn its attention to non-signatory states when asked to by the United Nations Security Council – as was the case for both Libya and Sudan.

However, critics say the tribunal is at a crossroads, with a weak political climate on human rights and international co-operation threatening to undermine its role. Attempts to refer Syria to the ICC for investigation for war crimes failed, for example, when Russia used its Security Council veto to block the move.

Progress is also slow – in 13 years there have been only three convictions – although numerous other trials are underway or due to start, while proceedings against others have been dismissed, and in some cases defendants have died.

In June this year, Jean-Pierre Bemba Gombo, former vice-president of the Democratic Republic of Congo, was sentenced to 18 years in prison for war crimes and crimes against humanity by his Congolese Liberation Movement. In 2014 Germain Katanga, former leader of the Patriotic Resistance Force, also in the DRC, was convicted by the ICC on five counts. The first person convicted by the ICC was also from the DRC – Thomas Lubanga Dyilo, who founded and led the Union of Congolese Patriots, received 14 years.

Some African leaders – among the ICC’s earliest supporters – are unhappy that most of its investigations have so far focused on the continent and have threatened to walk away from membership if sitting heads of state are not protected from prosecution

When an ICC prosecutor last month said it would look at the Chilcot Report for evidence of abuse and torture by British troops in Iraq, there was talk in some quarters that the UK should withdraw.

Tarfusser has no involvement in the Chilcott case and would not be drawn on the subject, but stresses that ICC investigators must work within narrow legal paramaters and clear rules over jurisdiction. To qualify as a crime against humanity in legal terms, an attack must be widespread and systematic, have some level of organisation behind it and target a civilian population.

Child soldiers

Prominent states that have not ratified the ICC statute – and where it therefore cannot independently operate – include permanent Security Council members Russia, China and the US. But Tarfusser says he is happy not to have the US as an ICC signatory at present, since it could try to gain control over the international body.

He said: “We are complementary, so don’t interfere in the investigations of a state as long as they are willing and able to pursue those. Unfortunately in Africa, where many states have ratified the statute and we can freely investigate, there have been some really big problems of this kind where investigations haven’t been forthcoming.

“It sometimes seems that everyone is very committed to the ICC as long as it focuses on other countries and not theirs. Kenya, for example, was one of the most committed supporters of the institution but then threatened to walk away when investigations went against them.

“All countries want a justice system as long as it creates constants – for example, clears the streets of robbers and drugs. But when you try to control illegality at establishment level, there is normally some mechanism in place to block investigation, prosecution and so on. Think about Italy and Berlusconi.”

Working on cases involving child soldiers, bush wives and other horrific cruelties, Tarfusser said his time at the court has left him increasingly aware of the privilege of people living in the West.

“I saw some terrible things as a prosecutor in Italy but in this position I’ve interviewed a number of women and men that were forcibly displaced from their families, enlisted as child soldiers or as bush wives, and as such, you can imagine they suffered indescribable and unimaginable cruelty and torture which have seriously damaged their bodies and souls,” he said.

“It’s by chance that we were born here and in this lucky situation. When I’m asked when I’m going on holiday my answer is that my life is a holiday 365 days a year. It’s not always the high life of course, as everyone has problems. But living where we do, we have the means to solve these problems and should be more appreciative of how privileged we are.”

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