The recent issuance of arrest warrants against high profile accused by the Prosecutor of the International Criminal Court has put the Court back into the spotlight of both its supporters and critics. The attempts to indict and try President Vladimir Putin, Prime Minister Benjamin Netanyahu, and Commander Min Aung Hlaing have opened the ICC to heightened scrutiny, meaning that the Court’s capacity to administer fair proceedings is also very much on trial.
One of the consequences of administering remote international justice from The Hague, is that the ICC operates without a state framework, and is at the mercy of its States Parties for many of its core functions. These 124 States Parties, including Australia and New Zealand, exhibit varying levels of enthusiasm for different aspects of the Court’s work. States are open in their support for particular investigations, prosecutions and arrests. They are much less supportive when it comes to other aspects of the Court’s core functions, such as funding defence lawyers for indigent accused, or hosting suspects who are granted provisional release. Convictions prompt public congratulations, while acquittals prompt calls for reflection and improvement. In this way, State support for the ICC, even when present, is deeply selective.
Selective State support for international justice has real-life consequences for suspects and accused. The UN International Criminal Tribunal for Rwanda (‘ICTR’) tried 82 people accused of crimes during the 1994 genocide from its seat in Arusha, Tanzania. In creating the ICTR, no plan was made for what would happen to defendants who were acquitted or released after serving their sentences.
In practice, former ICTR defendants have been unwilling to return to Rwanda, where their acquittals have been denounced by the Rwandan government. While all UN member states had an obligation to cooperate with the ICTR, no State considered that this cooperation extended to offering residency or assistance to acquitted persons. This led to the need for an ICTR “safehouse”; a house in Arusha where acquitted and released ICTR defendants languished in conditions that did not differ significantly from the ICTR’s prison. Decades passed. The Government of Tanzania’s discomfort with their continued presence grew. The ICTR was replaced by its Residual Mechanism (‘IRMCT’), whose Registrar negotiated an agreement whereby the eight remaining former defendants would be transferred to Niger. Here, they would receive residency permits, and eventually Nigerien passports, to facilitate their long-awaited reunification with their families.
The Niger plan went terribly wrong. Following intervention by Rwanda, these eight men were rounded up in Niger, stripped of their identity documents, and detained at gunpoint in a small house, where they have been illegally detained for three years. Two of them have died in circumstances that were extremely distressing for the remaining six. This is now the legacy of the ICTR; acquitted and released defendants will likely die in illegal detention in Niger, stateless and homeless. The ICTR’s failure to plan for what would happen to acquitted and released defendants, had terrible consequences.
The ICC has not learned from the ICTR’s mistakes. ICC suspects and accused are brought to The Hague without any plan being put in place for their eventual release. Maxime Mokom was arrested by the ICC in March 2022, and alleged to have committed crimes against humanity and war crimes during a 2013 conflict in the Central African Republic. Eleven months into his detention, the ICC Pre-Trial Chamber acknowledged that Mr Mokom was not a flight risk and would be eligible for interim release, pending a State Party willing to facilitate it. None of the 124 ICC States Parties were willing to do so, and Mr Mokom remained in detention for a further eight months, until the ICC Prosecutor withdrew the charges against him before they had even been confirmed. The evidence against Mr Mokom was deemed by the ICC Prosecutor as demonstrating that there was no reasonable prospect of a conviction.
This was the start of Mr Mokom’s problems. His ICC arrest had elevated him to a level of notoriety as an opponent of the Central African government, and he faced objectively legitimate fears for his safety and life should he return. Instead, he was transferred by the ICC to a hotel room in The Hague where he was imprisoned with no legal basis for 43 days. The ICC then withdrew its jurisdiction over him, exposing Mr Mokom to immigration detention in The Netherlands, prompting him to flee the jurisdiction to another European State where he remains an asylum seeker. He lives in squalid conditions, unable to reunite with his wife and children, homeless and stateless.
The ICC, like the ICTR before it, is detaining people without any plan for their release, and with no ability to provisionally release suspects, even where the conditions for detention are not met. In practical terms, this means that the ICC can offer no alternative to mandatory pre-trial incarceration of its suspects and accused, and potential statelessness on release. This is the concrete consequence of selective State support for the Court. Without State support for all aspects of the ICC’s mandate, the Court cannot exercise its core functions, one of which is ensuring the release of those who can no longer legally be detained.
The ICC has successfully negotiated agreements for the enforcement of sentences with several of its States Parties. It should also enter into similar agreements to host or assist defendants who must be provisionally or finally released. At this week’s Assembly of States Parties in The Hague, where representatives of States are standing to express their support for the front end of the Court’s work, resources and energy should also be dedicated to securing State cooperation and assistance for the parts of the criminal trial process which, while less appealing, are a necessary part of the international justice project.
Kate Gibson
Kate Gibson has been appearing before the international criminal courts and tribunals since 2005, on behalf of victims and accused. She has appeared in four cases before the ICC, including as Co-Counsel of former Vice-President of the Democratic Republic of Congo, Jean-Pierre Bemba. Kate also represented former Liberian President Charles Taylor before the Special Court for Sierra Leone, and former President Radovan Karadzic before the ICTY. She is an Associate Tenant at Doughty Street Chambers in London, and a Solicitor of the Supreme Court of Queensland.