When hope and history rhyme: Hope, Power and Using the Essential Arsenal that is the ICC

Carla Ferstman redress 272

Carla Ferstman is Director of REDRESS and a regular commentator on victims’ rights, the ICC, and the prohibition against torture | © Carla Ferstman

In commemoration of 17 July’s International Justice Day, Director of Redress Carla Ferstman reflects on the International Criminal Court’s (ICC’s) revolutionary potential and our duty, 18 years on from its establishment, to continue to be inspired and challenged by expectations for the ICC to deliver justice to victims of the most heinous international crimes. A contribution to our 20th anniversary blog series When hope and history rhyme.

On 17 July 1998, the Rome Statute was adopted, ushering in an era in which the fight against impunity for the most heinous crimes and the need to deliver justice to victims, have taken centre stage. Eighteen years later, we see both the power and potential of this crucial justice imperative: justice can instill hope, it can empower and contribute to the repair of fractured communities, it can change political narratives, it can assign blame. It is revolutionary in this potential. It is devastating in its absence.

We also see how hard it is to successfully deliver on the mandate, and it is fair to say that the full power and potential of the International Criminal Court has yet to be realised. The Court is besieged by problems –political attacks, fraught investigations in ongoing conflict situations, a never-ending stream of mass crimes to choose from, limited funding and personnel yet significant bureaucratisation. It is easy to focus on the minutiae of these and other challenges and to argue that the International Criminal Court has not, is not, and indeed is incapable of, living up to expectations. This is the argument of the Court’s detractors led by the States whose leaders and senior officials continue to be subjected to investigations, and by those who fear the Court’s independence. It is precisely the power of the International Criminal Court that has invited such rancour.

But the story of the International Criminal Court is about more than this. It is crucially about hope; the wish for safer, fairer and more ‘just’ futures. It is about the critical role of justice in the maintenance and restoration of international peace and security. It is about people – those that have suffered harm who are looking to the International Criminal Court for solace, and because of this amazing institution, understand and believe that wherever they live, whatever their personal status or affiliation, they DESERVE justice. That the International Criminal Court has been capable of inspiring such hope – such a sense of entitlement – is evidenced by the tens of thousands of victims who have sought to participate in its proceedings with 5,229 having participated in the Bemba case alone. It is also evidence by the 10,000++ communications that have been sent to the Office of the Prosecutor by individuals, groups and States about alleged crimes falling under the jurisdiction of the Court and by the fascination of many victims in the Court’s proceedings and progress.

Of course, the Court has not yet lived up to the expectations of victims. For many, the International Criminal Court remains a distant institution away from their day to day realities despite the promise of victim participation. Not a single victim has received Court-ordered reparations despite three convictions to date. Thomas Lubanga was the first individual to be convicted by the Court in 2012. The Court and its Trust Fund for Victims have still not managed to finalise and implement reparations for victims in that or any other case. Some witnesses have faced reprisals with a number having been killed. Many victims have not understood the limitations on the scope of the cases that have proceeded to trial and why some of these have ultimately failed. There is clearly a gap in expectations about what the Court should deliver and what it has been capable of delivering in the first eighteen years. But the answer is not to lower those expectations, to silence the voices of those clamouring for justice or to give up on the Court. No, we must use these expectations to help the International Criminal Court to succeed. We must all be inspired by these expectations and challenged by them; we must be guided by these expectations to press the Court and where possible to assist it, to deliver justice that is meaningful and that is momentous.

Eighteen years into a most difficult mandate, our goal must be to translate hope into reality, to strengthen and align ourselves with the army of voices of those who depend on the ICC for the delivery of justice, who require it to do as it was set up to do and punish those who continue to commit unspeakable crimes against them and their communities, and to hold the Court to the power of its mandate. We must commit to this goal, unify behind it and persevere until it is fully achieved. We can do nothing less.

Carla Ferstman joined Redress in 2001 as its Legal Director and became Director in 2005. Prior to joining Redress, she worked with the UN High Commissioner for Human Rights in post-genocide Rwanda, with Amnesty International on trials in Central Africa, and as Executive Legal Advisor to Bosnia and Herzegovina’s Commission for Real Property Claims of Displaced Persons and Refugees. In 2012/13, Ferstman was a Jennings Randolph Senior Fellow at the United States Institute of Peace. She obtained an LL.B. from the University of British Columbia and an LL.M. from New York University and completed her DPhil at the University of Oxford. Ferstman is a regular commentator on victims’ rights, the ICC and the prohibition against torture.

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