Eight years after its July 2002 founding, state parties and observers participated in the first ever review of the International Criminal Court (ICC) at a conference in Kampala, Uganda, earlier this month. The purpose of the conference was to review the Rome Statute (the court’s founding documents) and its impact on affected communities, as well as some of issues at play in its being carried out, such as notions of complementary, cooperation, peace and justice.
The mandate of the ICC is to target people who commit crimes against humanity in situations where national judicial processes are insufficient for trying and punishing perpetrators, though, since its inception, it has been the subject of much debate. While U.N. Secretary General Ban Ki Moon has celebrated the progress the court has made in ushering in a new “era of accountability,” critics have raised and continue to raise numerous concerns surrounding the court’s inability to arrest indicted individuals or to try those arrested in a timely manner. Up to the present, the ICC has launched investigations of 8 cases and has issued 13 arrest warrants, though has arrested only a handful and convicted none.
The court’s limited scope, dependence on referrals, and almost exclusive focus of the court on the African continent have also raised numerous concerns about the politicization of the process and the court’s serving as a vehicle of neo-colonialism. Furthermore, tensions between Western notions of justice and long-term visions of peace in many conflict situations are ongoing.
Peace and Justice?
For example, Africa Faith and Justice Network (AFJN) has written on concerns surrounding Sudanese President Omar al-Bashir’s indictment: despite his deplorable role in the ongoing humanitarian crisis in Darfur, an arrest of the President may cause further complications in a delicate peace process. In the case of the Lord’s Resistance Army, whose war with the Ugandan Government had been ongoing for two decades before they fled the north and spread the conflict to the DRC, Sudan, and the Central African Republic, many in northern Uganda have made compelling arguments for a suspension of the warrant on LRA commander Joseph Kony in the interest of negotiating a sustainable peace. Others have highlighted how the exclusive international focus on Kony has left unaddressed crimes committed by Ugandan national army, UPDF and numerous groups have taken the ICC review conference as the opportunity to call for an ICC investigation of Ugandan President Museveni.
Although combating impunity is essential, it wasn’t clear that much clarity was achieved from this conference on how, going forward, the court expects to navigate these complexities. , While UN. Secretary General Ban Ki Moon’s address seemed to downplay the problem: “the time has passed when we might speak of peace versus justice, or think of them as somehow opposed to each other.” Meanwhile, for AFJN, it is not clear that the primacy placed on arresting top LRA commanders – “justice” as defined in the criminal justice sense – is what is most needed to prevent greater injustice in the region or to bring about reconciliation and social harmony among communities. AFJN advocates for creating space for mechanisms of restorative justice in this and other conflict situations where local communities having a stake in the determination of justice is essential for laying the foundations for a more peaceful future.
There was, however, growing clarity around the crime of aggression, one of the highlights and most controversial aspects of the conference itself. As summarized by Human Rights Watch: “the deal would allow the court, in limited circumstances, to assert authority over those believed to be responsible for waging aggressive war. But it depends on further agreement between ICC member countries before it takes effect.” It also grants considerable authority to the UN Security Council – “the prosecutor cannot proceed with the case unless the UN Security Council has made a determination as to whether a crime of aggression has occurred” – which further subjects the ICC to the political interests of the five permanent members.
U.S. role in the ICC
For AFJN, however, besides the ongoing and unresolved concerns discussed above, the most troubling development has been U.S.’s evolving policy of “principled engagement,” as explained by Legal Advisor Harold Koh, one of the U.S. delegates to the conference, whereby the U.S. will engage the ICC in order to “to protect our interest, to improve the outcome, and to bring us renewed international goodwill.” In other words, only insomuch as supporting ICC-enforcement is in the interests of the U.S. the U.S. is willing to offer its resources. Yet there was no indication that the U.S. intends to sign on as a member state or otherwise allow itself to be held accountable to the same legal standards it aims to help enforce.
This does not seem to be a problem for Chief Prosecutor Luis Moreno-Ocampo, who relies on the contributions of signatory states to carry out enforcement and arrests and welcomes the willingness on the part of the U.S. to “engage.” As one Pambazuka article reports, Ocampo in June 2009, “declared the need for ‘special forces’ with ‘rare and expensive capabilities that regional armies don’t have’, and said that ‘coalitions of the willing’, led by the US, were needed to enforce ICC arrest warrants.”
For the U.S. delegation, this is a development for which the rest of the world should be grateful. When asked at the public briefing following the conference “what gives us [the U.S.] the moral authority to do that if we’re not becoming a signatory to the court?” Koh explained that “the other countries all wanted us to engage” and that “as a historical matter, as international institutions and courts with which the United States is not involved tend not to be as effective.”
Such an argument for effectiveness is insufficient for those who have been concerned about the US military command for Africa (AFRICOM) and its expanding activities working to secure American interests on the African continent. An additional veil of justice is the last thing we want granted to military operations such as Operation Lightning Thunder, where the U.S. provided significant support for the Ugandan government’s attempt to root the LRA out of eastern DRC and ended with many disastrous consequences in terms of human displacement and lives lost, when all non-military options have not yet been exhausted.
Samar al-Bulushi and Adam Branch summarized the issue as follows, “the ICC’s pandering to the US military is an insult to all those in the US and around the world struggling to hold the US military and its mercenaries accountable. The quest for global accountability will only become more difficult if the US military is appointed by the ICC as the chosen agent of global justice instead of being a force that itself needs to be held accountable.”