The Unhelpful International Criminal Court

by Julian Ku

Last year, there was lots of grousing on this blog and elsewhere about U.S. objections to an ICC referral for Sudan. Kenneth Roth of Human Rights Watch, among others, claimed that an ICC referral “would start saving lives tomorrow.” The U.S. relented and … the brutal, genocidal war continues largely unabated. Yup, those Sudanese militias are really holding back in fear of an ICC indictment.

Meanwhile, the ICC (unwisely supported by the U.S. and the U.K.) appears to be a key obstacle to ending an equally brutal (but maybe not genocidal) civil war in Uganda. As the Australian reports, the “notoriously cruel rebel group the Lord’s Resistance Army has offered talks with the Ugandan Government to end a 20-year civil war. . .” “The Government has accepted the offer, but a deal may be thwarted by the International Criminal Court, which last year indicted five LRA leaders for war crimes.”

Look, no one likes to see the bad guys escape justice. But the human rights community’s obsession with international criminal tribunals is not particularly helpful. As terrible as it is to contemplate, rather than saving lives, the ICC here could very well be causing more deaths by preventing a peace deal from being reached.

http://opiniojuris.org/2006/05/18/the-unhelpful-international-criminal-court/

5 Responses

  1. Hm. I read the situation differently: the international community lacked the political will to come up with a real intervention program, so they punted the issue to the ICC to claim political cover for themselves, as if punishment were an adequate substitute for prevention. It seems more than a little unfair to pin the fiasco on the ICC; they were referred a meritorious case and took it, as they should.

  2. Not everyone agrees with Julian that the ICC is so “unhelpful” in promoting peace with justice or that the two are mutually exclusive. Apropos of the Northern Uganda situation, at the end of July, 2005 the International Center for Transitional Justice and the Human Rights Center at UC Berkely issued a report, entitled “Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda.” The report is based on detailed interviews, conducted in April and May 2005, with more than 2,500 Ugandans on their personal experiences of the conflict and their opinions on how peace and justice should be achieved.

    I recommend the report to anyone concerned with transitional justice issues. Its findings are illuminating. It’s available at http://www.ictj.org/en/index.html

    Here are a couple of short excerpts from the ICTJ’s press release, available at

    http://www.ictj.org/en/news/press/release/262.html:

    Among the report’s findings are some of the highest levels of exposure to traumatic events—including killings, abductions, mutilations, and sexual violations—ever reported. Forty percent of the survey respondents had been abducted by the rebel Lord’s Resistance Army (LRA), 45% had witnessed the killing of a family member, and 23% had been physically mutilated at some point during the conflict.

    [snip]

    Survey respondents expressed strong support for transitional justice mechanisms, including a truth commission and reparations. Over 80% of respondents said that they wanted to speak publicly about the abuses they had suffered. When asked what should happen to leaders of the LRA, 66% were in favor of punishing them, while 25% suggested measures such as forgiveness, confessions to the community, and compensation. Of those who had heard of the ICC, now investigating war crimes in Northern Uganda, a majority believed that the court would contribute both to peace (91%) and justice (89%).

  3. I couldn’t agree more with CSBobis. If Northern Uganda ever wants to see a lasting peace, it cannot come with immunity given to those worst offenders of war crimes. While the ICC may not yet be able to prevent crimes from happening it can help in ensuring that those who committed those crimes are brought to justice and that reconciliation and rebuilding can occur.

    Moreover the Luis Moreno-Ocampo (the ICC prosecutor) may at any time determine that prosecution of a particular criminal may not be in the interests of justice and decide to suspend the prosecution. (Article 53, Rome Statute)

  4. Let me add to some of the grousing, Julian!

    First: One of the things I don’t get about critics of international criminal courts is that they simultaneously criticize the courts for being too weak to stop genocide and so their remedy for that weakness is to weaken the courts even further. The critics’ problem ultimately becomes their solution. And it creates a downward spiral. The ICC depends on legitimacy to work, the critics challenge its legitimacy, which further inhibts the ICC’s ability to work, which gives more ammunition to the critics, and so on…

    Second: With the focus on the court’s inability to end genocide the critics don’t really focus on what might cause genocide in the first place, including perhaps a rigid commitment to a Westphalian system of nation states, a philosophy which organizations like the ICC is trying to change incrementally.

    Third: As Adil points out, you can’t just create a court system and then expect it to function absent some enforcement mechanism. A local prosecutor can hand out as many indictments as he wants, but without police there to stop crime people will break the law. As Justice Jackson states in his opening statement at Nuremberg, the international courts were a compliment to not a replacement of the Chap. VII enforcement mechanism of the United Nations. And that distinction between whether a court acts as a compliment or a replacement is a mistake that both critics and supporters of an international court system can make.

    Fourth: There is an unstated change going on in international criminal justice. The nature of international criminal justice systems as they are currently constructed is to skew heavily toward retributivist goals on the retribituvist/deterrence criminal justice continuum, meaning they function usually as a post-conflict moment of accountability for offenders (such as with Nuremberg, the ICTY, the ICTR, and the other Special Courts like in Iraq and Sierra Leone or T&R commissions in South Africa).

    Using an international court to stop an ongoing genocide is a totally new idea. And those methods should be subject to a critique, of course. But there needs to be a recognition that this is something quite different from what was done in the past. Critics should ask whether they’re setting impossible benchmarks for the ICC to attain.

  5. Also, regarding Darfur, the names of those who will be (hopefully) indicted by the ICC haven’t been released. There is a theory that the ICC could help strip some of the legitimacy from the Bashir regime.

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