08 Jun ICC Struggles with the Uganda Case
As the rest of the media is focused on the very good news about the demise of Abu Masub al-Zarqawi (see Andrew Sullivan’s round-up of perspectives here, here and here), I wanted to draw attention to an article in today’s WSJ describing the ICC’s problems with its prosecution of Joseph Kony and the Lord’s Resistance Army. As Jess Bravin’s article makes clear, the reality of international prosecution — particularly where peace has not yet been made — falls far short of its promise. ICC proseuctor Luis Moreno-Ocampo has found his first test quite vexing:
In many war-torn countries, regime change and peace historically come before justice can be delivered, says Mr. Moreno-Ocampo. In Uganda, he notes, the conflict is internal, and continuing, so the ICC must figure out a different approach. Unsure how their presence might affect the situation — and fearful of attack by the Lord’s Resistance — prosecutors decided to keep a low profile inside the country. ICC “teams are very small,” says Ms. Chung. “They go in there, they do their business quietly, and they leave.”
With near silence from the ICC, rumors shot through Ugandan villages and refugee camps. Some expected the ICC to mount a military campaign with its own forces. Others worried that the court would take action against thousands of youths who had been forced to take part in atrocities, according to ICC investigators and Ugandan observers.
The court’s secretive operations cost it support, says Claudia Perdomo, a Colombian who heads the ICC public-information office. “What we have heard from Ugandans is: ‘We need you to explain what the court is about. You are behaving in a way as the guerrillas do, in a very clandestine way,’ ” she says. Ms. Perdomo says prosecutors rebuffed her suggestions for reaching out more aggressively to communicate with Ugandans. Prosecutors say they feared such a move could compromise their investigation
The tension between confidentiality of investigations and the need to build trust in a war-torn region is not the only challenge:
ICC investigators also sometimes find it difficult to corroborate information provided by human-rights groups, who are eager to call international attention to crises. “The gap between the assessment of the humanitarian groups and the evidence was sort of a surprise,” says Bernard Lavigne, a French magistrate and former police detective who heads the Congo investigation team.
Mr. Pace concedes that “human-rights and humanitarian organizations are lousy criminal investigators. They are not producing forensic evidence that can be used by a prosecutor.”
This last point is one heard frequently about criminal prosecution for mass atrocities and war crimes, but provides cold comfort for victims: Where evidence is subject to exacting international criminal procedural rules, the truth of what happened can be lost. This is at least one of the rationales for truth commissions that offer amnesty in exchange for confession and the admission of testimony that might otherwise be unobtainable or inadmissable.
The LRA case is further complicated by Moreno-Ocampo’s initial decision to announce his prosecution of the LRA at a joint press conference with Ugandan president Museveni– at a time when it was widely believed, including by some ICC attorneys, that the Ugandan government was resonsible for crimes committed by paramilitary troops in eastern Congo. Since then, the ICC opened an investigation into alleged war crimes in Congo and the ICJ ruled against Uganda in a case brought by Congo and concluded, inter alia, that Uganda violated international humanitarian law. (See my earlier post on the decision here.)
All of this is troubling, but not surprising. International prosecutions seem to work best when they are accompanied by a comprehensive plan for peace building and when adequate resources are dedicated to the task. In the three cases the ICC is currently investigating — Congo, Darfur and Uganda — neither element appears present.
Peggy, One pressing question: who would you hold responsible for developing and implementing ‘a comprehensive plan for peace building?’ Surely not the ICC, for that would conflate restorative (and ‘transitional’) justice with criminal justice and over-burden the already fragile ICC, however interdependent both modes of justice may be on the ground. In fact I think that is one of the problems with Helena Cobban’s Foreign Policy critique of the ICC: unrealistic expectations with regard to the ICC and ‘peace building’ and even social justice goals more generally. Indeed, I think Cobban provides a nice illustration of one problem Lawrence Sherman has identified with a ‘Quaker ethic’ (knowing of her avowed Quaker commitments, which I’m otherwise well-disposed towards): ‘Theoretically and theologically, the Puritan ethic provides a firmer foundation than the Quaker ethic for compliance with law. [….] [Puritan culture] offers less freedom for personal disagreement with the strictures of group rules, including criminal law.’ Sherman goes so far as to claim that the ‘inner-directedness’ of the Quaker ethic supports ‘private conceptions of justice, [and] can render the law irrelevant and legitimate even the most horrendous acts of violence.’ Sherman does cite some virtues associated with this species of radical antinomianism. Still,… Read more »
I hope the aforementioned comments possess probative value.
Patrick– “who would you hold responsible for developing and implementing ‘a comprehensive plan for peace building?'” The answer to your important question lies at the heart of the debate over the future of the UN and its role in peace and security. A big question indeed, to which I have no glib, short answer. I will be posting more about this in the weeks and months to come. From a peacebuilding point of view, the concern has been raised, which I share, that a truly independent prosecutor could make life difficult for the parties to the dispute and to any third party mediators. It may well be, as Leila Sadat suggests in a forthcoming article, that the value of amnesty to political reconciliation has been overstated. But the concern remains. And precisely because the prosecutor is largely indpendent (yes, the UNSC retains authority to block certain prosecutions while Chapter VII powers are being exercised)– and not, for example, operating at the express bidding of the SC as in the case of the ICTY and ICTR — he cannot be made integral to peacebuilding whether by the parties or by third-party mediators. At least he cannot do it and still maintain… Read more »
Oddly enough (and this is in reference to the Quaker comments), the Friends Committee on National Legislation lets the Washington Working Group on the ICC (a pro-ICC group of NGO leaders and others) use its building for meetings. I can say this for sure, because I’ve attended a WICC meeting at the FCNL office.