"The International Criminal Court has made real headway in bringing justice to the victims of horrible abuses in the face of daunting obstacles. But the court should tackle real shortcomings so that its work resonates in the communities most affected by major international crimes", said Richard Dicker, International Justice Program director at Human Rights Watch. The human rights watchdog released a report reviewing the first five years of the Court.

In the compehensive, 244-page report 'Courting History: The Landmark International Criminal Court's First Years', Human Rights Watch examines the ICC's achievements and weaknesses since it commenced work in 2003. The court was created in 1998 to bring perpetrators of genocide and crimes against humanity to justice and combat the impunity often surrounding mass-atrocities. So far the court has issued arrest warrants against suspects in Sudan, the Democratic Republic of Congo, Uganda and the Central African Republic. None have been tried yet.

The ICC
17 July 2008 marks the tenth anniversary of the Rome Statute establishing the International Criminal Court in The Hague. In 1998 a total of 120 states made a historic pledge that victims of gross human rights violations would find justice at the world's first-ever permanent criminal court. Four years later the Court became a reality: on 1 July 2003, the 60th state ratified its statute and it met its quotum. By now, 106 countries have committed to the ICC.

In March 2003, 18 judges were sworn in. The present prosecutor, Luis Moreno-Ocampo from Argentina, took office three months later. Since that moment, the ICC has investigated cases of genocide, war crimes and crimes against humanity around the world, committed after 1 July 2002. Being a court of last resort, the prosecutor only brings to trial war criminals when national courts are unwilling or unable to do so. A pioneering aspect of the court is that it allows victims as parties to the trials.

Cases
The ICC opened its first investigation after referral by President Joseph Kabila of the Democratic Republic of Congo (DRC) in 2004. Millions of civilians have died in the DRC as a result of conflict since the 1990s, and serious crimes are still being committed . Most prominently in the Ituri-region, where a pattern of rape, torture, forced displacement and the illegal use of child soldiers has been reported.

Besides the DRC, there are ongoing investigations in Northern Uganda, where Joseph Kony's sectarian Lord's Resistance Army (LRA) is carrying out a brutal rebellion. The LRA has been using child soldiers against the Ugandan government since 1987. A third investigation concerns the 'genocidal' conflict in the Sudanese Darfur-region that started in late 2002. It is the only case that was referred to the ICC by the UN Security Council. The latest investigation is in the Central African Republic (CAR), where many civilians were killed and systematically raped.

These investigations - all conducted in conflict areas - have led to twelve public arrest warrants against alleged war criminals. Five of the suspects have been arrested, all from the DRC. The others are evading justice across Africa. The court has also provided protection to witnesses and victims in these countries, made efforts to convey its messages to members of affected communities, facilitated victims' participation in the proceedings and assisted defendants in mounting an effective defence.

Courting history
The Human Rights Watch report credits the ICC for its progress in the last five years, but it also pinpoints some weaknesses. Because of its multiple tasks, ICC officials have made mistakes. For example: the ICC's first-ever trial - against Thomas Lubanga Dyilo - faces suspension because of the prosecution's failure to disclose potentially exculpatory information collected from the United Nations and non-governmental organisations.

Moreover, in the light of the fact that the court was created to provide justice to victims of mass-atrocities, it should make its work meaningful and relevant to the affected communities. HRW stresses the importance of more effective information programs in the field and protective measures for witnesses.

Human Rights Watch also observes, however, that one of the foremost obstacles to the court's work is largely outside of its control: apprehending suspects. The ICC does not have its own police force; it has to rely on the cooperation of independent states and the UN. According to the report, "the international community has too often downplayed justice amid other important diplomatic objectives, such as peace negotiations and the deployment of peacekeeping forces." The rights organisation calls upon the international community to improve its cooperation with the court.

Investigations
An issue of real concern to Human Rights Watch is the prosecutors' policy of investigations. Most investigations are carried out in countries where a number of different ethnic militias have allegedly participated in war crimes, and Richard Dicker criticizes the "strict sequence" of the investigations.

"First the prosecutor investigates alleged crimes of one ethnic militia and when that's done he turns his attention another ethnic militia", Dicker says. "On the ground in a highly polarized society where there are victims of abuses that have been committed by both ethnic militias, it raises questions as to the appearance of impartiality. It seems as if the prosecutor is only blaming the militia forces associated with the first ethnic militia."

The report recommends that the Office of the Prosecutor (OTP) improve its capacity to conduct simultaneous investigations, by recruiting more investigators - preferably experienced ones. Many experienced investigators have in the past left the court prematurely, because they suffered burn-out or because of the ICC's limited resources.

Apart from that, HRW urges that the investigators establish a permanent presence in the various countries , instead of going on investigation missions from The Hague.