The International Criminal Court: Justice versus Judgment

The International Criminal Court: Justice versus Judgment

by

Howard Adelman

If mercy is almost inherently unjust (see yesterday’s blog), an international system of justice may be inherently merciless. A system of justice brought to the treatment of genocidaires, murderers and abductors is fraught with even more paradoxes than the humanitarian dilemma. On 16 December 2003, Yoweri Museveni, president of Uganda, referred the issue of the Lord’s Resistance Army (LRA) to the International Criminal Court (ICC). Uganda became the first sovereign state to invoke Articles 13 (a) and 14 of the Rome Statute granting the ICC jurisdiction over domestic criminality.

On 13 October 2005, the ICC unveiled its first ever arrest warrants, though they were issued on 8 July. The delay was only a result of security preparations. Four leading LRA commanders, in addition to Joseph Kony, were indicted — Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. Today, only Kony remains at large and only Dominic Ongwen is under arrest in The Hague. One was killed in battle, one was captured by local militias and one, the peace negotiator, Victor Otti, was killed by Joseph Kony himself. All of them had been charged with a litany of war crimes and crimes against humanity dating only after mid-2002 since the ICC did not have jurisdiction before that date.

The United States Senate has not ratified the Rome Statute that President Bill Clinton signed in 2000. George W. Bush subsequently suspended the country’s signature. Barack Obama has never renewed the effort to sign the treaty. Instead, the United States has systematically sought and obtained bilateral immunity agreements with over 100 countries that American nationals would not be subject to prosecution outside U.S. borders. The U.S. also enjoys the protection of its status as a permanent member of the Security Council where it can veto any reference by the UNSC to the ICC. On the other hand, in 2008, Obama committed his administration to ensure justice for those who committed crimes against humanity and war crimes. Though Obama could accede to the Rome Statute in practice, that accession would have no possibility of being ratified by the Senate.

However, without even the Senate veto, there are at least four different reasons Obama will not sign the Rome statute:

  • The American Servicemembers’ Protection Act (ASPA 2002), which explicitly prohibits cooperation between the U.S. and the ICC, is still in force.
  • The Obama administration has no interest in resurrecting the issue of alleged American war crimes in Iraq and Afghanistan and does not want to make Americans vulnerable to investigations by the ICC.
  • Given statements by high-level UN officials decrying American drone strikes that are part of Obama’s war on terror, and given those officials’ allegations that targeting civilian areas is illegal under international law and a war crime, the U.S. has no interest in placing these drone strikes under an international legal microscope.
  • The U.S. opposes an ICC investigation into Israeli actions during the Gaza War, for example, and opposes the Palestinian Authority requesting such an investigation.

Not only does exempting the U.S. from the jurisdiction of the ICC undermine the principle of universal applicability, it points out the inherent tension between the ostensible universal jurisdiction of the court and the authority of a sovereign state. America’s exemption from the Rome statute seriously impairs the principle of universal international jurisdiction of the ICC.

When the ICC issued the arrest warrants for the LRA-five for enslavement, rape, and inhumane acts, inflicting serious bodily injury and suffering, as well as twenty-one counts of war crimes, including cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, rape, and the forced enlisting of children, it did so without reference to or under the authority of the United Nations Security Council, the premier international political body in the world. The ICC had positioned itself as a court of legal jurisdiction independent of the UNSC. Without taking away the right of the UNSC to refer cases to the ICC, this tension over the independence of the ICC from the UNSC was quickly and easily dissipated when the head of the United Nations, Kofi Annan, welcomed the indictments and hailed the initiative as sending “a powerful signal around the world that those responsible for such crimes will be held accountable for their actions.”

The second issue was trickier and was left unresolved. When Museveni referred the matter to the ICC, by that request for an indictment, was Museveni, at the same time, denying his own state, Uganda, legal jurisdiction over the LRA-five? When Dominic Ongwen was captured and handed over to the Ugandan army, Kampala initially wanted to try him. But others insisted that Uganda, by referring the case to the ICC, had already granted ICC primary jurisdiction. The conflict was resolved, but not the division over principles behind it, when Uganda voluntarily granted ICC jurisdiction on the basis that Ongwen was alleged to have committed war crimes and crimes against humanity in several countries (Central African Republic, Democratic Republic of the Congo, South Sudan as well as Uganda) and, therefore The Hague would be a better place to try him. But Uganda never acceded to the principle that the ICC jurisdiction trumped that of the sovereign state of Uganda.

Many analysts are concerned that the ICC may undermine national justice systems. They offer a very strict and narrow interpretation of the complementarity provisions of the Rome Statute, namely that, “no case is admissible where a country is willing and capable of conducting its own prosecution.” The strict provision offsets a third concern, the potential manipulation of the ICC for political ends. Did Yoweri Museveni refer the LRA indictments to the ICC for political rather than legal reasons? Was it an effort to mobilize the international community behind Uganda to enhance Uganda’s efforts to eliminate the threat of the LRA?

This issue arose over the reference of the LRA-five to the ICC even before the indictments were issued. From the very beginning, the question was raised whether the charges were laid on purely legal grounds or was the issue of the arrest warrants a political act in partnership with Uganda to use international law to induce the commanders of the LRA to surrender? Earlier, the reference by Museveni of the LRA issue to the ICC put pressure on the government of Sudan. Suddenly, after the reference to the ICC, Sudan acceded to Museveni’s request that Sudan end its support for the LRA and wind up the LRA bases in South Sudan. A March 2004 Protocol to permit the UPDF to attack LRA bases in southern Sudan was also agreed upon. This was precisely at the moment that LRA abuses had reached their peak. The ICC appeared as having been used for national political purposes.

The fourth dilemma of the ICC and the international community, complementary to the one immediately above, was the tension between peacemaking and meting out justice. Kony wanted immunity from the jurisdiction of the ICC for both himself and his commanders. Most of the population on the ground wanted peace even if it meant Kony and his colleagues got away with their murder and mayhem. The bulk of the population had been interned in internally displaced persons (IDP) camps for ten years and did not want to surrender the opportunity to return to their home villages. Two million people, ninety percent of the population of Uganda’s northern Acholi provinces, had abandoned their homes presumably in exchange for shelter and security. The camps were not only crowded and unsanitary, but they had not even provided the security supposedly guaranteed. Instead, they offered a more concentrated target for raids and abductions than the widely dispersed villages.

The other side of the argument was that the failure to offer amnesty undermined peace efforts. Rebel forces would be alienated when they could not access the protection offered by the Ugandan government’s Amnesty Act of 2000. The ICC indictments counteracted the incentive to defect from the LRA. The Amnesty Act had guaranteed blanket amnesty for all rebels of any rank who voluntarily surrendered. Ugandan minister Betty Bigombe, backed by the United States, Britain, the Netherlands, Norway, and the Catholic Church, used amnesty as a negotiating tool. Face-to-face meetings between senior government officials and LRA leaders in 2004 almost resulted in a peace agreement. The issuance if the ICC indictments put the nail in the coffin of those efforts.

Bigombe loudly complained that the ICC had rushed getting out the indictments and had not given the peace channel enough time, scuttling her efforts. Even more seriously, the ICC charges, and the refusal of the ICC to set them aside, deprived future negotiators of an essential tool in negotiating peace. Archbishop Odama of the Gulu Catholic Archdiocese concurred. “This is a blow to the peace process…Confidence-building has been moving well, but now the LRA will look at whoever gets in contact with them as an agent of the ICC.” Peter Onega, chair of the Uganda Amnesty Commission, insisted that amnesty still applied to all other rebels not named in the indictment. But even then, there would be two countervailing forces. Rebels who tried to defect, or suspected of wanting to defect, would be killed by the senior commanders. Furthermore, ICC commanders below the top could not be sure they would not be indicted if they did defect. For both reasons, the ICC arrest warrants undermined peace efforts and, in particular, the role that amnesty could play.

This was not a new issue. At the time of the drafting of the Rome Statute, the Harvard Human Rights Journal (V. 19) adumbrated the problem. The journal raised the issue whether offers of amnesty should be complemented by suspension of indictments. Even more, it was argued that prosecutions would prolong conflicts since they would narrow the number of options available to the peace negotiators. Broader more exible measures in cases of mass atrocities might be more appropriate. On the other hand, there were fears that genocidaire leaders and those responsible for war crimes would escape punishment.

There was no resolution to the conundrum. Article 53(1)(c) was deliberately vague leaving it up to the ICC prosecutor, not the political and military negotiators, to decide “taking into account the gravity of the crime and interests of the victim” and balancing those factors against the interest in justice. The 1948 Genocide Convention and the 1949 Geneva Conventions had the same problem. They resolved the issue in the same way by creating a binding obligation to prosecute egregious crimes such as genocide, but taking into consideration the context of international armed conflict. It did so by an even vaguer phrasing, both with respect to the responsibility of the ICC, the extent of its reach, and the applicability and timing of its actions.

This discretional provision for jurisdiction from one perspective, seemed to provide wiggle room for political negotiators while keeping the principle of justice for perpetrators intact. After all, since Museveni referred the issue of indictments to the ICC, a number of former rebels and a high-ranking LRA brigadier did surrender under the Amnesty Act of 2000. In fact, it was argued, the fear of being indicted pushed those fighters to surrender while amnesty was still available.

Even though Kony had been pushed into a corner by the end of 2008, even though the peace negotiations between long-term the LRA and the African Union Forces had come a long way, the ICC believed that the cause of justice could not be sacrificed for the immediate gain of a promise of peace. Besides, almost no one trusted Kony to keep the peace. After all, he even had his chief peace negotiator and deputy killed for becoming too susceptible to the entreaties of the peace negotiators.

There were two other major tensions resulting from the ICC charges against Kony and his cronies. On the one hand, there were the charges of victor’s justice. On the other hand, there were the complementary accusations that the meting out of justice was unjust, for Museveni had himself been guilty of war crimes and crimes against humanity or, the very least, widely alleged to have committed such crimes. Why had a warrant of arrest not been issued against Yoweri Museveni? At the same time as the actions of the ICC were widely lauded, many organizations criticized the ICC for its failure to take broader action against human rights violations perpetrated by the government in Kampala.

In the effort to decimate the LRA, the Ugandan army, the UPDF (United People’s Defense Forces), “bombed and burned down villages, thus fueling the displacement of the Acholi.” Further, the Acholi Religious Leaders Peace Initiative and the Refugee Law Project documented numerous accounts of rapes and sexual attacks against women by UPDF soldiers and of killing civilians found outside IDP camps. In effect, Uganda was accused of setting up forced internment camps in the guise of “protection camps” or “protected villages.” These “protected villages,” which often lacked food, clean water, sanitation, and medicines, were safeguarded by local militias or the Ugandan national army. Nevertheless, the inhabitants remained easy targets. They continued to be maimed, raped, murdered, and abducted by the LRA—and reportedly mistreated by un-disciplined UPDF soldiers as well.

Luis Moreno-Ocampo, the ICC’s chief prosecutor, defended his decision not to lay any charges against individuals in the Museveni government and only charge LRA top commanders by insisting that, “[w]e analyzed the gravity of all crimes in Northern Uganda committed by the LRA and Ugandan forces. Crimes committed by the LRA were much more numerous and of much higher gravity. . .We therefore started with an investigation of the LRA.” It was the number of crimes and the gravity of the crimes not the fact that some crimes were committed by the Ugandan government that determined that only the LRA leaders were indicted. However, the appearance of one-sided justice undercut the credibility of the ICC in the eyes of Acholi leaders and the Acholi community.

Finally, there was a debate over the nature of justice itself. Critics of the ICC, especially those favouring traditional Ugandan community modes of meting out justice, stressed restorative justice that emphasized the primacy to healing and reconciliation, the restoration of the unity of the community rather than the punishment of any one individual. Odama, and other Acholi religious and political leaders, argued in favour of traditional justice, a process based on public confessions of guilt, cleansing rituals, and the eventual acceptance of LRA members back into communities. This was parallel to the way the vast number of those charged with crimes in the Rwanda genocide were dealt with in the gacaca process.

How are the interests of victims served by either process? Perhaps by neither. After all, reconciliation is generally not rooted in justice systems at all, but in narratives of the women and spiritual and evangelical religious practices. The process of ICC justice, however, was rooted in detachment and universal abstract principles both divorced from everyday practices, especially a belief in the importance of invisible forces in fostering a healing process. Enchantment was necessary to offset disenchantment. How else could relationships be restored except by concepts such as Christian forgiveness and the metaphysics of redemption? But is the abstract principle of “natural” law and “human’ rights any less invisible and magical?

At the same time, Acholi “traditional” justice is inconsistent in its practices and both violent or humiliating. The fact is that any system of justice is infused with politics and tensions. In traditional justice, there are tensions between elders and religious leaders, between the older leadership and the young. Thus, the tensions between modern international justice and traditional justice systems are but a manifestation of the reality that reasonable judgment must be exercised in mediating the multi-dimensional conflicts on all levels between justice and politics, between state and international jurisdiction, between purity of principle and the messiness of any application. In the end, there is no avoidance of the need for reasonable judgment.

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