Now four days into the New Year, the 2011 reflections are tapering off, giving way to predictions about what may be in store in 2012. But permit us one more: 2011 was a momentous year for the International Criminal Court as the institution played a role in some of the year’s most defining moments, further establishing itself as an avenue for pursuing justice for victims of even the seemingly most invincible leaders and war criminals.
The U.N. Security Council’s decision in February to refer Libya to the ICC was part of a swift and robust effort aimed at deterring further attacks by Qaddafi’s forces on protesters. By the time the vote came, the U.N. estimated at least 1,000 people had been killed in the first 10 days of the uprising. It was only the second time the Security Council had referred a case to the International Criminal Court and the first time it did so unanimously. (The first was Sudan in 2005, and four countries, including the United States, abstained.)
In the case of Qaddafi the move obviously failed to have the desired effect of deterring further actions against Libyan citizens, though it may have influenced those around him. Observing the Brother Leader’s ruthless actions and irrational claims to power in those final months, it seems unlikely that he would have acted any differently with or without the possibility of an ICC trial ahead of him.
The United States came out strongly in favor of the Security Council’s unified decision on Libya. Notable considering Washington’s non-party status, U.S. ambassador Susan Rice said, “The specter of ICC prosecution is serious and imminent and should again warn those around Qadhafi about the perils of continuing to tie their fate to his.”
The ICC issued arrest warrants for Qaddafi, his son Saif, and the head of Libyan intelligence, Abdullah al-Senussi, in late June. The case against Qaddafi was terminated following his death, and the country’s National Transitional Council said it would try Saif al-Islam Qaddafi and al-Senussi in Libya, a decision welcomed by the ICC prosecutor.
As 2010 post-election violence in Cote d’Ivoire spilled over into 2011, calls mounted for investigations into alleged crimes against humanity committed by forces loyal to both sides in the disputed polls. In the absence of U.N. Security Council action referring the crimes to the ICC, newly elected President Alassane Ouattara sent a letter to The Hague in May asking the court to launch an investigation. In October, the court obliged, issuing to an arrest warrant a month later for former president Laurent Gbagbo.
On November 30, the arrest warrant was unsealed—having been granted in secret to facilitate Gbagbo’s apprehension—and the former president was transferred to The Hague. On December 5 the ICC held the first-ever hearing for a former head of state, confirming Gbagbo's identity and setting a confirmation of charges hearing for June 2012.
Apart from these international headline-making cases, the court continued to build its credibility through several other important proceedings:
The so-called “Ocampo Six”—five politicians and a radio broadcaster accused of instigating post-election violence in Kenya—appeared before judges in The Hague in April. All six are charged with crimes against humanity in connection with violence that pitted ethnic groups against each other in 2007-2008 and left 1,200 dead and more than 500,000 displaced. The case is seen as a crucial step towards holding Kenyan leaders accountable ahead of polls later this year that many fear could turn bloody if a meaningful judicial process doesn’t create a deterrent.
In August judges heard closing statements in the court’s first-ever trial. Thomas Lubanga, who is accused of committing war crimes as the leader of a rebel group in eastern Congo, has been on trial since January 2009.
The trials for Jean-Pierre Bemba, a former vice president of the Democratic Republic of Congo charged with crimes against humanity, and co-defendants Germain Katanga and Mathieu Ngudjolo Chui, wanted for war crimes and crimes against humanity in the Ituri region of eastern Congo, continued throughout the year. The trials presented challenges that the ICC will no doubt have to confront regularly in its work prosecuting some of the world’s most heinous crimes. The Open Society Justice Initiative blog chronicling Bemba’s trial pointed out some of these teaching moments in a year-in-review post this week, including protecting the safety of witnesses and facilitating the participation of, in this case, thousands of victims.
What’s in store for 2012? A judgment in the Lubanga case is expected any day, and judges will hear closing arguments from the prosecution for the Bemba team in February. In the case of Katanga and Ngudjolo, judges will decide whether to hand down a ruling or travel to the region where alleged crimes took place to gather more information.
A decision by the U.N. Security Council to refer the situation in Syria to the ICC would be a significant development in a conflict that has so far escaped the ire of the council. Pressure is mounting for the Security Council to take action, with the U.N. human rights chief Navi Pillay specifically calling for an ICC referral in the wake of an estimated 5,000 civilian deaths. It would also be the first case opened in a non-African country.
2012 will see a significant transition when Luis Moreno-Ocampo steps down as the ICC’s first chief prosecutor in the summer and Fatou Bensouda takes up the post. Bensouda, a prosecutor from the Gambia, has served as the ICC’s deputy prosecutor since 2004. Her tenure is expected to foster a shift in the ICC’s rapport with the African Union, which has been openly hostile to Ocampo, who the A.U. accuses of focusing disproportionately on the continent.
Ocampo has indeed been a divisive personality, with critics saying he has skirted legal processes to break news and make headlines. But there’s no denying that Ocampo’s outspoken approach has garnered attention to the court—some of it good, some of it bad.
“Moreno-Ocampo’s time has been replete with controversy. But he also put the court on the map and spotlight of international politics, in the face of nay-sayers, critics, and a plethora of hostile forces," wrote blogger Mark Kersten on Justice in Conflict. Whether or not one agrees with his tactics, Ocampo is "a man who, arguably more than anyone else, has shaped the politics and pursuit of international criminal justice," Kersten wrote.
Global affairs this past year seemed marked by more watershed moments than most, and the ICC kept pace. 2011 paved the way for the court to spend this new year closing its first cases—which it has been urged to do now 10 years into existence—opening its first trial against a former head of state, and undoubtedly, taking up responsibility for the prosecution of yet another high-profile war criminal who failed to see the tide of impunity shifting out of his favor.
N.B.: Enough interviewed Bensouda in New York in 2009, and the video is here.
Photo: An ICC arrest warrant is outstanding for Sudanese President Omar al-Bashir for war crimes, crimes against humanity, and genocide in Darfur (AP)
Correction: An earlier version of this post stated that the ICC confirmed four counts of war crimes charges against former Ivorian President Laurent Gbagbo on December 5, 2011.