A powerful signal

"The most important thing is that it exists at all," says Hans Peter Kaul, a German judge at the International Criminal Court (ICC) in The Hague, and he never tires of saying it.

Kaul is regarded as one of the main initiators of this first permanent global tribunal to prosecute crimes against humanity, genocide and war crimes.

The creation of the International Criminal Court - not a UNinstitution but a tribunal founded on a treaty that has meanwhile been signed by 120 states - sent a clear signal around the globe: there is no immunity from punishment. That applies not only to the signatory states of the 2002 founding treaty, the Rome Statute; perpetrators of such grave crimes should not go scot-free wherever they are in the world.

Caught in the middle

Rulers charged with such crimes have always done their best to conceal any responsibility they may have - from the start that has been one of the court's biggest challenges. "Inevitably, we work between the conflicting areas of brutal power politics on the one hand and human rights on the other," Kaul told a symposium held in 2010 in Berlin.

Early on, during the court's founding phase, tensions were already evident: the US was one of the ICC's major opponents. By signing bilateral treaties, Washington tried to ensure that US citizens could not be brought before the ICC. Experts said the Bush administration launched what amounted to a campaign to undermine the creation of the ICC, by trying to keep as many nations as possible from signing the treaty.

A modest start

The ICC's founding statute was adopted in July 1998. It came into effect four years later, after it was ratified by 60 states.

Kaul was one of a planning team of five that at that point took charge of the ICC's designated 15-storey building in the Hague, ordering office furniture, telephones and computers. "The beginning was exhausting and it was modest," Kaul remembers.

Now, the ICC has more than 1000 employees from over 70 nations. To date, the court has opened investigations into seven so-called situations: Uganda, the Democratic Republic of the Congo, the Central African Republic and four cases referred by the UN Security Council: Darfur/Sudan, Kenya, Libya and Ivory Coast. The ICC has issued 23 arrest warrants and detained seven prisoners. One of the court's biggest problems is the lack of support by some states in apprehending the alleged criminals.

Pioneers

But it took a long time before the Lubanga trial finally opened in 2009. "Any court of this size and with such high standards needs time to develop an order of proceedings," says Jens Dieckmann, a victims' defence attorney at the ICC. "For the first time, the victims played a large role in such a criminal case, and that was a special situation. The court first had to go through a number of complaints procedures in order to determine what rights the victims have," he said. The rights of the defense to investigate exculpatory evidence also had to be resolved before there could be a trial or a sentence.

They were pioneers in quite a few respects, Kaul says, and he points to one questionable practice: the enormously long list of charges. "What often happened in the end was that we would charge perpetrators with 200 separate charges, but convict and sentence them for a mere two or three verifiable charges," he says.

The pressure is on

Defining and deterring - that's where victims' rights attorney Diekmann sees the ICC's best chances. "Of course, deterring means you have to prove constitutional proceedings lead to severe and effective sentences," he says - or, sometimes, to an acquittal.

ICC chief prosecutor Luis Moreno-Ocampo has repeatedly come under fire for lacking efficiency. Too many headlines, too many investigations and trials, his critics in The Hague say. In December, the ICC's Assembly of State Parties - the group of signatories - made it clear that the court is a successful project, but also a costly one. Ocampo's term runs out in June 2012, he is to be succeeded by Fatou Bensouda from Gambia.

Now the court has delivered its first verdict, convicting Congolese former rebel commander Thomas Lubanga for war crimes. "Now we'll see whether the claim that it is acting as a criminal court is really justified," Dieckmann says.

People have to realize that "years of investigative work have produced a result, convincingly taking proper account of the rights of the defendant as well as the interests of the victims," he says.

Victims' expectations

What is not clear is what the victims can expect after a verdict is reached. The ICC has a trust fund should a convicted criminal not be in a position to pay compensation to victims. But the extent and the practical details have yet to be determined. Dieckmann, who currently represents victims from six African countries, is convinced this will be the real test for the system.

Expectations are high and to some extent even very specific. The widows of murdered soldiers have lost everything and are completely destitute. "Their biggest wish is that their children should be able to go to school and live in dignity," the attorney says.

Of course victims hope for reparation - but they also hope the ICC's work will shed light on the historical truth.

"They could more easily get on with their lives," Kaul says, quoting findings from the International Criminal Tribunal for Yugoslavia. "It would help the victims if their suffering is acknowledged - and not forgotten."

Author: Ulrike Mast-Kirschning / db
Editor: Michael Lawton