10 years of the International Criminal Court: expectations fulfilled?

Sabina Puig
International Catalan Institute for Peace
Sabina Puig

Sabina Puig

On 1 July 1 2002, a decade ago, the Rome Statute that regulates de International Criminal Court (ICC) entered into force. It was a great victory for all those victims and human rights advocates from all over the world that had been demanding for years the establishment of an international and permanent criminal tribunal responsible for bringing to justice individuals suspected of genocide, crimes against humanity and war crimes.

A distinctive characteristic of the new tribunal is that for the first time ever in the history of international criminal law, justice would not limit itself to prosecute crimes but it would also offer victims a chance to participate in the proceedings and guarantee them the right to a fair and adequate reparation. With the establishment of the ICC, justice is no longer just about condemnation and punishment, it also becomes reparative. The two-folded mandate of the ICC gave and is still giving high expectations to victims. When assessing the first 10 years of the Court's work, there is a question that one should not elude: are all their expectations being fulfilled?

How many victims of investigated crimes have had the opportunity to participate in the proceedings? To what extent have they been able to participate? Have the victims been actually listened to? Have effective protection measures been taken to ensure their safety? Have they had sufficient means to travel up to The Hague? How have they been legally represented in the Court room? Are the differences made between "victims of a situation" and "victims of a case" fair enough? To what extent has the ICC's outreach program worked? Is the ICC communicating efficiently with victims? Has it managed to explain them in a proper way what their rights are, the existing options to participate in the proceedings they have and the limits of the Court's mandate? What is their perception of a Court located thousands miles away from their lives?

The question of the participation of and reparation for victims is so new in the field of international criminal justice that these first 10 years have not been enough to come to conclusions nor to give answers to most of the doubts that are coming up during the ongoing proceedings. In fact, although on 7th August the Court issued a first decision on the principles for victims' reparations, it has not issued any reparations order yet. It is expected that it will do so soon, in the context of its first verdict.

We are referring here to the Thomas Lubanga Dyalo case (Democratic Republic of the Congo), who has recently been sentenced to 14-year imprisonment for enlisting, recruiting and using child soldiers. It should be pointed that this is a case that has produced mixed feelings amongst the victims. The length of the proceedings (Lubanga was arrested and delivered to the ICC on 16 March 2006 and the trial started on 26 January 2009, for crimes committed in 2002 and 2003) and the relatively low sentence that has eventually been issued have generated frustration amongst them. The decision to limit the charges against the defendant has also been disturbing. Despite the claims of many victims, charges did eventually not include the cruel and inhuman treatment they were subjected to nor the sexual slavery many of them were forced to. The sentence does not consider sexual violence against the victims as an aggravating factor either. A third reason for victims and affected communities to be annoyed and concerned about is that one of Lubanga's men, Bosco Ntaganda, who is also sought by the ICC, is still at large and on top of that, he is still recruiting and using child soldiers.

However, despite all the disappointing shortcomings, the first ICC sentence is nevertheless a huge conquest against impunity and it gives victims some room for satisfaction and hope. The fact that at last one of the main responsible for all the harm they suffered has been found guilty and sentenced must somehow alleviate their pain. But justice does not stop here, at a punishment level; it has to go one step further.

The judges in charge of this case have a great challenge ahead: they will have to order reparation measures that the Court can assume and that are also proportional to the needs of the victims and to the scale of the damages committed against them. At the same time that the ICC is reviewing the successes and failures of its first 10 years, a new chapter, a key one in the history of universal justice, is just beginning: the effective recognition of the right to victims of gross human rights violations to a fair and adequate reparation.