Roundtable of experts critique International Courts

4 February 2009

In a workshop organized by the Foundation in Oxford on 29 January as part of the Courts and the Making of Public Policy programme, a roundtable of experts from academic, practitioner, and legal communities discussed the issues currently confronting international courts and tribunals, and drew on case studies from Sudan, Uganda, Rwanda, the Democratic Republic of Congo (DRC), the former Yugoslavia, Iraq and Cambodia to assess how effectively they have delivered justice.

Dr Phil Clark, Research Fellow in Courts and Public Policy at Oxford University, who convened the workshop, drew on his fieldwork within Uganda and Rwanda in his comments regarding the International Criminal Court (ICC) and the International Court of Justice, which he claimed often served as a forum for "war by other means", as protagonists use the international courts as arenas to play out existing conflicts. Echoing Professor Drumbl’s concerns, Clark cited the trial of Thomas Lubanga, to argue that the Court's approach to criminal justice does not always resonate with the population in the DRC, which is demanding some evidence of state responsibility for the conflict.

This view was partially shared by Payam Akhavan, Professor of International Law at McGill University and former first Legal Advisor to the Prosecutor’s Office of the International Criminal Tribunals for Former Yugoslavia and Rwanda. He agreed that the ICC could only achieve so much through its indictments, but that it must hold to account world leaders and send the message that genocide does not pay as an instrument of power. Citing the case of Sudan, he argued that the indictment of al-Bashir has brought pressure on him to find a scapegoat to mitigate his culpability, and has thereby severed the destructive alliance between the government and the Janjaweed militia accused of carrying out many of the atrocities in Darfur. Dr Phil Clark countered this claim with the observation that there has been no lessening of the violence in Darfur despite this dissociation of the Janjaweed and the state, and he went on to question whether the ICC is not, in fact, “somewhat of a toothless tiger”.

Leslie Vinjamuri from the School of Oriental and African Studies (SOAS) argued that the ICC has become an unintegrated tool of coercive diplomacy. She criticized the idea that, by indicting individuals such as the President of Sudan Omar al-Bashir, pressure can be brought to bear upon leaders such that they will lose domestic support and be removed democratically, since this process is dependent on the operation of high functioning democratic institutions which are often lacking in the developing countries and failed states most afflicted by such problems.

The afternoon session was opened by Adam Branch of San Diego State University who critiqued the fact that the ICC has concentrated its prosecutions in Africa, and in so doing, effected Africa’s political subordination through the evisceration of the principle of non-intervention of state sovereignty. This interpretation was rejected by Akhavan, who characterised the ICC as a fledgling institution operating against overwhelming odds rather than a powerful body bent on colonialization.

The workshop was brought to an end by Morten Bergsmo, former senior lawyer at the ICC, who gave an insider’s perspective into the working of the court. He acknowledged that, whist certain quality control procedures could be improved to help prevent, for instance, the reversed testimony of one of the first child witnesses in the Lubanga trial, the court is an institution that should be commended for maintaining its independence in the face of strong political pressure on various fronts. 

A full critical report and analysis of the workshop will be available from our publications page later in the year.