Where Will ICC Strike First?

The judges have been elected, the court has been inaugurated and the hunt is on for a prosecutor. No one doubts that the International Criminal Court, ICC, is open for business. The question is - which war will it target first?

The obvious answer is the looming conflict in the Persian Gulf, where ICC members Australia, Britain and Spain may be involved – see accompanying feature.

But the 200 complaints already received by the ICC deal with other wars.

While these complaints are being kept secret, until the arrival of the ICC prosecutor, IWPR examines their likely provenance.

Of the 89 nations signed-up to the ICC, just three have ongoing wars – Afghanistan, Columbia and the Democratic Republic of Congo. Diplomatic sources tell IWPR that a fourth nation, Ivory Coast, while not a member, may send a request for the ICC to open trials there.

AFGHANISTAN

The latest ICC signatory, Kabul joined the court in February. Although relatively peaceful since a US-led coalition ousted the Taleban in 2001, low level fighting continues.

In the south, US troops have recently fought with Taleban and al-Qaeda groups in the southern Pashtun areas of the country. Elsewhere, there are tensions, but so far little conflict, between rival warlords, with Tajiks, Uzbeks, Hazaras and others all scrambling for influence.

Most concern in Kabul is over the reappearance in the south of former warlord Gulbuddin Hekmatyar, whose artillery and rocket batteries destroyed roughly half the Afghan capital in battles in the early 1990s.

Should fighting break out in earnest, the ICC will have plenty of international help on hand to collect evidence: US soldiers are active in much of the country, and a UN force currently led by Germany and Holland garrisons Kabul.

A string of aid agencies and specialists are meanwhile trying to rebuild the country’s legal system. This is one to watch, but unlikely to see prosecutions this year.

DEMOCRATIC REPUBLIC OF CONGO

Cannibalism is likely to be added to the list of international war crimes once prosecutions begin for atrocities here.

Nine national armies, six major rebel groups and countless smaller militias have been fighting confused battles and indulging in ethnic cleansing in this battered country in recent years.

One problem for prosecutors will be that many crimes cannot be prosecuted, because they occurred before July 1, 2002, the ICC’s start date.

The UN mission in the country has produced steady reports of massacres of civilians, as well as systematic torture and acts of cannibalism committed by militia groups. These have been sent to the ICC in The Hague.

Crimes committed on its territory could lead to indictments both against local forces and the armies of several neighbouring states.These include forces from Angola, Namibia, Uganda, Rwanda, Zimbabwe. All have been drawn to the Congo in part because of its wealth of diamonds and gold.

Although peace agreements have forced a withdrawal of foreign soldiers from the country, their place has been taken by proxy militias.

The Congo’s multiple aggressors and confused command lines will give lawyers and judges the chance to crash-test ICC laws. It’s likely to be a front-runner for the site of the first ICC prosecution.

COLOMBIA

Most South American nations have signed up to the ICC. Only Colombia has an active war. An insurgency begun by the leftist Revolutionary Armed Forces of Colombia, FARC, twenty years ago, has spiralled into a civil war.

This has seen a host of vicious paramilitary groups emerge. Most recently, US forces have been drawn into the battle for the drug fields. American troops are protected from prosecution by an agreement with Columbia’s government, but local forces are another matter.

And war crimes prosecutors will be looking not just at the government, but all the factions.

Leftist rebels, like the government forces and the right-wing militia groups stand accused of grave crimes against civilians.

Intimidation, violence and torture are commonly used, often to intimidate villagers. Hague officials will likely say that not only government forces, but FARC and the whole galaxy of paramilitary formations will be equally liable for prosecution.

And Columbian justice officials, who are frequently threatened with murder and kidnap, may be pleased to see controversial cases taken off their hands and tried in The Hague.

IVORY COAST

A messy civil war in this small African nation has dragged in French peacekeepers to try and limit the carnage – and with it the possibility of a war crimes court.

Such a court could follow the model of the one in the nearby former British colony of Sierra Leone, an ad-hoc tribunal set up to deal with this one country. But an alternative has been put forward by some French officials, leaving the possibility that the UN asks the ICC to take charge of prosecutions there.

The move would need the support of the Security Council, including the US, an opponent of the ICC.

And while unlikely for this reason, it would certainly be supported by the ICC. The new court’s officials say privately that such a move would increase its budget and its standing, and most crucially of all, give it implicit recognition by the UN.

Neil Arun is an IWPR contributor.