The ICC is Free to Investigate Ukraine since 2014. So What Now?

A row of empty seats from flight MH17 lies in a field in eastern Ukraine (Photo: Getty)

A row of empty seats from flight MH17 lies in a field in eastern Ukraine (Photo: Getty)

After months of speculation, Ukraine has finally decided to refer the violence in the country since February 2014 to the International Criminal Court (ICC). The ICC is now free to open a preliminary investigation and, if it finds reason to proceed, an official investigation into alleged crimes committed not only during the chaos on Kiev’s Maidan Square but in the east of the country, especially in the regions of Donetsk and Crimea. Here are a few thoughts on what the potential ICC investigation into Ukraine means – or could mean.

Why not just join the ICC?

Yesterday’s decision marked the second time that Ukraine has opened itself up to an ICC investigation. It previously referred the months of November 2013 to February 2014, a period captured the violence on the Maidan Square, to the Court. Few people close to the situation believed that the first referral would have led to charges as the crimes were unlikely to meet the ICC’s gravity threshold and Kiev likely wanted to avoid a determination by prosecutors that no crimes had been committed in Ukraine, leading to a second referral.

Ukraine’s most recent decision, taken under Article 12(3) of the ICC’s Rome Statute, expands the ICC’s jurisdiction to events since 20 February 2014. But an important question remains: why won’t Ukraine simply ratify the Rome Statute and become a member-state join the Court? The simple answer is that there remain constitutional barriers to doing so – the same that existed when Ukraine first referred the Maidan square events to the ICC. Despite the fact that Ukraine signed the Rome Statute in 2000, a 2001 ruling by Ukraine’s constitutional court found that ratifying the Statute would be unconstitutional. The question that now arises is: will Ukraine ever become a member-state of the ICC and do the two ‘partial’ referrals make a prospective decision to join the Court more or less likely?

Who will the Court target?

In his letter accepting an expansion of the ICC’s jurisdiction in Ukraine, Foreign Minister Pavlo Klimkin declared that the Ukrainian parliament had previously adopted a resolution entitled “On the recognition of the jurisdiction of the International Criminal Court by Ukraine over crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of two terrorist organisations – “DNR” and “LNR”- which led to extremely grave consequences and mass murder of Ukrainian nationals.” This language suggests that Ukraine is attempting, as it did with its first referral, to direct the Court towards exclusively prosecuting its Russian, and Russian-affiliated, adversaries.

This is not the first time a state has sought to refer its enemies – rather than a conflict situation or situation of mass atrocity – to the ICC. The government of Uganda infamously referred the Lord’s Resistant Army to the Court in 2004. As with that case, the ICC will surely interpret the referral as providing jurisdiction to investigate all international crimes committed on the territory of Crimea, irrespective of who committed them.

However, the ICC will also face a familiar quandary. If it does open an official investigation into the situation in Ukraine, the Court will almost certainly be dependent on Ukrainian officials for witness protection, witness testimonies and the collection of other relevant evidence. That may, as it has in the past, lead prosecutors to focus on only one side of the war (Russia and Russian-backed rebel groups) whilst neglecting the alleged crimes of Ukrainian forces. Given increasing evidence of serious crimes committed by Ukrainian troops and government-backed groups, this would make a mockery of the pursuit of impartial justice.

Russia comes under the ICC Microscope – Again

An ICC intervention into Ukraine would not mark the first time that Russia has come under the Court’s scrutiny. It has also been a focus of the ICC’s preliminary examination into the 2008 war in Georgia which is, according to many sources, inching towards official investigation status. And as with the case of Georgia, Russia may not mind – and believe that they could benefit from the ICC’s involvement. Russia could also decide to selectively cooperate with the ICC. Indeed, Moscow will likely flood the ICC’s Office of the Prosecutor with documentation in an attempt to point the Court’s finger in Ukraine’s direction – or at least delay any real action or arrest warrants being issued. Continue reading

Posted in International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine | Tagged | 12 Comments

Bosco ‘The Terminator’ Ntaganda Goes on Trial: Should Kagame Be Afraid?

Bosco Ntaganda (Photo: Alain Wandimoyi / EPA)

Bosco Ntaganda (Photo: Alain Wandimoyi / EPA)

Nine years after he was originally indicted and over two years after he shocked the world by walking into the American Embassy in Kigali, Rwanda, and asking to be hauled off to The Hague, the trial of Bosco ‘The Terminator’ Ntaganda has finally began at the International Criminal Court (ICC). Ntaganda, a chief warlord in a panoply of rebel movements in the eastern Ituri Province of the Democratic Republic of Congo (DRC) faces thirteen charges of war crimes and five charges of crimes against humanity. Born in Rwanda, Ntaganda also happens to have been a pawn and partner of the Rwandan government, raising the question: does his trial at the ICC pose a threat to the regime of Rwandan President Paul Kagame?

For years now, there has been a growing cohort of scholars, advocates and political figures pushing for investigations into the alleged atrocities committed or sponsored by Rwandan government forces and agents. Their efforts can be divided into three broad aims: one, accountability for alleged mass atrocities committed by Kagame’s Rwandan Patriotic Front (RPF) prior to and in the wake of the 1994 Rwandan Genocide, as laid out in detail in a 2010 United Nations report; two, accountability for aiding and abetting the commission of atrocities by rebel factions in the region; and three, accountability for repressive and violent tactics, including targeted assassinations and torture, deployed against domestic opponents of the Kagame government. Through it all, Kagame has been somewhat of a teflon man. No charges have stuck and, to date, no efforts at a thorough and independent investigation have led to much more than a series of false starts.

Rwanda has proven to be a rather curious case for international justice. While it is the focus of a tribunal that bears its name, the International Criminal Tribunal for Rwanda (ICTR) has a highly restricted temporal jurisdiction which is limited to 1994, the year the Genocide took place. The ICTR, based in Arusha, Tanzania, has experienced a quixotic and often fraught relationship with Kigali despite the fact that it has focused exclusively on the regime’s former enemies – Hutu perpetrators of the genocide. Periodic attempts to expand the reach of the tribunal have been met with sharp condemnation from Kagame and rebukes from the international community. Former Chief Prosecutor of the ICTR Carla Del Ponte has written that she was effectively fired from her position by the UN Security Council after she pushed for investigations into RPF crimes.

Many blame the lack of progress on the accountability front in Rwanda on what they see as the West’s shielding of the Kagame regime. There is little doubt that Rwanda is seen as an ‘African success story’, particularly in the US and the UK, and that there isn’t much appetite to upset this narrative. Domestically, the suggestion that the RPF or any factions associated with Kagame committed mass atrocities is often interpreted as genocide denial.

At the same time, the average well-being of Rwandans is incomparably better today then it was in the mid-1990s. Progress has been stunning and those members of the international community in the strongest position to push for accountability are also those most wont to do so lest Rwanda’s progress be undermined. I will never forget speaking to a senior jurist on the allegations dogging the Rwandan government and the various calls for justice and accountability. His response could be summed up as: ’Perhaps. But they have WiFi everywhere now!’

Bosco Ntaganda plead not guilty earlier this week at the International Criminal Court (Photo: ICC)

Bosco Ntaganda plead not guilty earlier this week at the International Criminal Court (Photo: ICC)

Still, in recent years, efforts to break through the impunity gap seem to have gained steam. Along with the UN report detailing alleged RPF atrocities after the genocide, General Karenzi Karake, the head of Rwanda’s intelligence services was recently detained in the UK after a Spanish judge charged him with war crimes and crimes against humanity allegedly committed in Rwanda and the DRC between 1990 and 2002. Moreover, when it became blatantly clear that the Kigali was supporting, perhaps even controlling, the Ntaganda-led M23 rebel group in the DRC, Rwanda’s’s traditional Western proponents wavered in what had, until then, been assumed to be unquestioned support. US Ambassador for War Crimes Issues Stephen Rapp went so far as to assert that Rwanda could be open to the war crimes charge of aiding and abetting the M23, comparing the role of Kagame to that of Charles Taylor, the former Liberian President convicted of war crimes in 2013:

There is a line that one can cross under international law where you can be held responsible for aiding a group in a way that makes possible their commission of atrocities.

Charles Taylor never set foot in Sierra Leone, and aided and abetted, and was convicted of aiding and abetting, the Revolutionary United Front with assistance that was substantial and, the judges said, without which the RUF could not have committed the atrocities to the extent they did commit them. Because of that evidence, Charles Taylor was convicted and sentenced to 50 years.

…if this kind of thing continued and groups that were being armed were committing crimes … then I think you would have a situation where individuals who were aiding them from across the border could be held criminally responsible.

As Kevin Jon Heller pointed out at the time,”Kagame’s response to Rapp’s statement was completely predictable: to blame the West for forgetting about the genocide.” However, as Heller right added: “Remembering the genocide, however, does not mean ignoring Kagame’s authoritarian rule or overlooking his government’s [alleged] crimes.”

But precisely because of the public uproar, combined with a rare willingness on the part of Western states to openly criticize Kagame’s government, many thought that the trial of Ntaganda would open the floodgates and expose Kigali’s alleged role in destabilizing and perpetuating violence in the eastern DRC. For at least two reasons, this is unlikely to ever occur. Continue reading

Posted in Bosco Ntaganda, Democratic Republic of Congo, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Rwanda, Rwandan Genocide | Tagged , , , | 8 Comments

Should War Crime Perpetrators Pursue PhDs?

Saif al-Islam Gaddafi addresses an audience at the London School of Economics in 2010 (Photo: Ben Stansall / AFP / Getty Images)

Saif al-Islam Gaddafi addresses an audience at the London School of Economics in 2010 (Photo: Ben Stansall / AFP / Getty Images)

The first-ever individual convicted by the International Criminal Court (ICC) has asked judges at The Hague-based Court to grant him early release so that he can pursue a PhD. The former warlord and rebel leader Thomas Dyilo Lubanga, a man sentenced to fourteen years for conscripting child soldiers to fight in a brutal war in the eastern Democratic Republic of Congo, wants to attend Kisangani University to study “the sociology of ethnic harmony”. In Lubanga’s own words: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony”.

Most observers appear to be oscillating between a sense of incredulity and simply being incensed. How could a convicted war criminal be granted early release in order to study how to prevent precisely the types of crimes he himself is ultimately responsible for? The mere suggestion smacks of some kind of cruel and unusual joke. As one tongue-in-cheek comment had it, perhaps Lubanga could insist his crimes were simply a result of “participant observation”, the popular research method of imbedding oneself in the very social and political setting under examination.

Whether he is released now or at the conclusion of his sentence in two years, the issue of Lubanga’s interest in pursuing higher education isn’t, in fact, anything new for alleged war criminals and raises important yet insufficiently answered questions within the realm of international criminal law and justice. Let’s take a look at two other examples: Libya’s Saif al-Islam Gaddafi and northern Uganda’s Sam Kolo.

Unlike Lubanga, Saif al-Islam Gaddafi managed to fit in his higher PhD studies before emerging as a central figure in the ICC’s investigation of war crimes and crimes against humanity during Libya’s 2011 uprising and civil war. Gaddafi infamously attended the London School of Economics where he submitted a PhD on democratisation and global civil society. The full name of Gaddafi’s thesis was “The Role of Civil Society in the Democratization of Global Governance Institutions: From ‘Soft Power’ to Collective Decision-Making?”. Remarkably, the thesis often spoke to precisely the kind of world that those who support international criminal justice seek. In one passage, Saif writes: “The international order has a responsibility to protect the basic rights of those citizens who live under non-liberal governments”. Of course, not everyone was fooled into believing Saif would emerge as some pro-democracy, pro-human rights, pro-justice alternative to his despotic father. But most turned a blind eye to the whole fiasco…

…That is until Libya descended into civil war, and it emerged that Saif al-Islam Gaddafi ardently supported his father’s crackdown on civilians in Libya. At the time, it was also revealed that Gaddafi’s academic achievements had been doctored (excuse the pun). Rather, a nefarious network of primarily British political and business connections concocted to promote Saif as the future ‘liberal’ leader of Libya, secure Western interests in the oil-rich nation, rehabilitate the Gaddafi regime, and, as an aside, write Saif’s PhD for him. For a while at least, though, Mr. Gaddafi was Dr. Gaddafi – and very few people had an issue with it.

Not long after the 2011 civil war came to an end, another alleged perpetrator of mass atrocities received a degree in northern Uganda. In January 2012, Sam Kolo, a former senior commander in the Lord’s Resistance Army (LRA) “completed a remarkable journey from the life of a rebel to a graduate” and was rewarded with a degree in business administration from Gulu University. Kolo, who led an LRA delegation during peace talks in 2004, had previously received an amnesty under Uganda’s 2000 Amnesty Law and, according to one observer, following his defection from the LRA, the former rebel commander “provided valuable intelligence to the Ugandan army in their hunt for Joseph Kony, the long-time leader of LRA”. Kolo was eventually supported in his pursuit of a degree by the Ugandan government’s scholarship scheme. Notably, Kolo has regularly expressed regret over his membership in the LRA, stating on the day of his graduation that it prevented him from pursuing his dream of becoming a university lecturer.  Continue reading

Posted in Democratic Republic of Congo, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Uganda | Tagged , , , | 2 Comments

Is Local ICC Justice Necessarily Better than ICC justice?

Dominic Ongwen arrives for a hearing in his trial at the ICC (Photo: Reuters)

Dominic Ongwen arrives for a hearing in his trial at the ICC (Photo: Reuters)

A few weeks ago, the International Criminal Court (ICC) came nail-bitingly close to finally holding proceedings in an affected community rather than in The Hague. Ultimately, the ICC’s president decided that the risks of holding part of the trial of Bosco Ntaganda in Bunia in the Democratic Republic of Congo (DRC) outweighed the benefits of serving some ICC justice locally. The debate over whether to hold hearings in Bunia raises broader questions: should the ICC be a traveling court? Should its judges, prosecutors, and defence lawyers present their cases in the very same contexts and in the same communities where the alleged perpetrators committed their crimes? Beyond issues of security, what are the potential costs of doing so?

The International-Domestic Tension and Dream

In the world of international justice and human rights, it is almost universally accepted that accountability is ideally served locally. Justice is best pursued where victims and survivors reside, where evidence can be collected and presented, and where affected communities can see it being done.

In this line of thinking, global institutions that mete out criminal justice, like the ICC, are not ideal purveyors of accountability. Instead, they are seen as necessary bodies that ‘fill in’ the accountability gaps that result from states being unable or unwilling to investigate and prosecute mass atrocities and human rights violations themselves. Put another way, given the option of having no justice or abstracting accountability from affected societies to The Hague, the latter option is always preferable. And here’s the kicker: many believe that if the international community buys into the project of international criminal justice, over time there will eventually be no need for such international institutions. As the commitment to prosecute international crimes spreads, the ICC will work itself out of business and states will be able to justice themselves. As former ICC Chief Prosecutor Luis Moreno Ocampo regularly suggested during his tenure, the ultimate success of the Court would be realised when it had no cases in its dock because states meted out justice themselves.

The hope that the ICC’s mere existence and mandate will lead to a world where states prosecute all mass atrocities and human rights violations themselves is, at worst, a promise of unicorns and rainbows. At best, given the existence of regimes like those in Syria and Sudan, and the impunity gap in states with robust judiciaries like the United States and the United Kingdom, it is certainly a very long-term aspiration. This is not to say that this isn’t a good or useful aim to have. But it shouldn’t detract from the myriad of obstacles international criminal justice face today. It also shouldn’t obfuscate from the potential of bringing ICC justice closer to ‘home’.

A Traveling Court 

In recent years, there has been a growing interest in seeing the ICC hold hearings in the communities in which the relevant atrocities were perpetrated. This is wholly in line with the Rome Statute of the ICC, which grants the court’s judges the purview to hold hearings, whenever deemed feasible and desirable, in affected communities. Along with the conviction that justice is best served as close to the source of injustice, many also believe that if affected communities truly got to see the Court in action, their oft-stated criticisms would be tempered and those governments that have made a habit of attacking the institution would have a harder time doing so.

In fact, the idea of holding ICC proceedings locally is nothing new. Court officials have previously considered holding hearings in the trials of Thomas Dyilo Lubanga in the Democratic Republic of Congo (DRC), of senior government officials allegedly responsible for the 2007/08 post-election violence in Kenya, and (in a much less public way) for Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya. Apart from the recent decision not to hold the Ntaganda trial in Bunia, there are ongoing and advanced discussions about holding the confirmation hearings of child soldier turned Lord’s Resistance Army (LRA) commander Dominic Ongwen in Gulu in northern Uganda.

Indicative of just how widespread the conviction is that local ICC justice is necessarily better ICC justice, it is hard, if not impossible, to find any public statement or article arguing that Ongwen should not be tried in Gulu. One piece insisted that such an in situ trial would be “great news”. In a rare moment of agreement, both the prosecution and defence are on board, suggesting the public face of the ICC, as well as Ongwen himself, prefer proceedings to be held in northern Uganda. Continue reading

Posted in Bosco Ntaganda, Democratic Republic of Congo, Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Uganda | 4 Comments

Heading to the University of Toronto

(Photo of Toronto: TsaiProject / Flickr Creative Commons)

(Photo of Toronto: TsaiProject / Flickr Creative Commons)

Dear Readers,

It is with great pleasure that I announce that I, along with the blog, are heading to the University of Toronto. I recently accepted a two-year post doc from the Social Sciences and Humanities Research Council and will be based at the Munk School of Global Affairs, working with Ron Levi.

After five years of working on the nexus of ongoing war, conflict resolution and international criminal justice, the research I am preparing to undertake will examine the historical and political relationship between the International Criminal Court (ICC) and the ‘BRICS’ (Brazil, Russia, India, China and South Africa). The premise of the project is rather simple: in international relations, we have been told two stories: one, that with the creation of the ICC, international criminal justice has become a permanent reality in international politics; and two, that as a result of the rise of new powers, particularly the BRICS, we are witnessing a re-ordering of the distribution of global power. The key question is: are these trajectories compatible?

Over the next two years, my research will explore the engagement of the BRICS with the ICC since the Rome Statute negotiations through to the current day. With a general paucity of literature regarding the relationship between specific states and the Court (with the notable exception of the United States), I hope this work will not only illuminate the relationship between BRICS and the ICC but also contribute to our knowledge of the prickly and political intersection of diplomacy, power and international criminal justice.

As always, thank you from the bottom of my heart and the tips of my fingers for your support and readership.


Posted in JiC News | 2 Comments

A New War Crimes Court is Born, but Who is Responsible in Kosovo?

Aidan Hehir joins JiC for this critical examination of Kosovo’s war crimes tribunal and the need to pursue accountability for all parties directly and indirectly responsible for mass atrocities in the country. Aidan is a Reader in International Relations at the University of Westminster.

U.S. soldiers provide security as members of the Royal Canadian Mounted Police Forensics Team investigate a grave site in a village in Kosovo in 1999.  (Photo: Sgt. Craig J. Shell, U.S. Marine Corps)

U.S. soldiers provide security as members of the Royal Canadian Mounted Police Forensics Team investigate a grave site in a village in Kosovo in 1999. (Photo: Sgt. Craig J. Shell, U.S. Marine Corps)

On 3 August, the Kosovo parliament voted to alter Kosovo’s constitution to enable the establishment of a Special Court. The court will investigate evidence uncovered by the European Union Special Investigative Task Force of forced detention, torture, murder and, perhaps most shockingly, organ-harvesting allegedly committed by former members of the Kosovo Liberation Army (KLA) from 1 January 1998 to 31 December 2000.

Kosovo’s war crimes court will deal with important and perhaps unique questions about culpability in transitional justice. The offences under its jurisdiction were committed by agents acting with the sometimes overt and sometimes tacit support of external actors, namely NATO and the UN Mission in Kosovo (UNMIK). They are the same actors that assumed executive authority in Kosovo for half of the three-year time period under examination. The extent to which these actors will be held responsible for sponsoring and / or tolerating criminality conducted by the KLA will have a profound effect on perceptions of the Court’s legitimacy and thus societal stability within Kosovo.

“Monsters” and “Victims”

Kosovo Albanians generally see the KLA as freedom fighters who brought about their “liberation”, albeit with the aid of NATO’s military intervention in March 1999. The idea that the KLA, or the Kosovar Albanian community more generally, could be guilty of human rights violations jars with the popular conception of “Serbian aggressors” and “Albanian victims”. Indicatively, Ramush Haradinaj, the former Prime Minister and current leader of the Alliance for the Future of Kosovo, stated: “By approving this court, we are turning ourselves into a monster…we were not monsters; we were victims.”

Kosovo’s declaration of Independence in February 2008 sparked jubilation amongst the majority Albanian population, but this has given way to spiraling anger and dissatisfaction; unemployment remains cripplingly high, wages are low, and corruption is rife. Between December 2014 and February 2015 some 50,000 Albanians left Kosovo in an ill-fated attempt to reach the EU. In March, the UN ranked Kosovo as the fourth largest source of asylum seekers in the world. Amidst this depravation, many naturally take comfort in KLA nostalgia. Unsurprisingly, the prospect of this source of pride being besmirched doesn’t appeal.

The Court’s perceived legitimacy amongst the Albanian community – which clearly has profound implications for peace and stability within Kosovo – will hinge upon the extent to which the actions of the KLA are acknowledged to have been supported – or simply tolerated – by external actors. This external support involved two distinct phases that lie within the Court’s three-year remit: first, the support afforded to the KLA during the struggle against Yugoslav forces from 1 January 1998 until the end of NATO’s intervention on 10 June 1999; and second, the tacit support provided by the international administration established after NATO’s intervention and lasting until 31 December 2000.

Supporting “Terrorists”?

Prior to NATO’s intervention the KLA were known to engage in attacks against Serbian – and also Albanian – civilians; indeed, in February 1998 the US Envoy to the Balkan stated that “[t]he UCK (KLA) is without any question a terrorist organisation” and, a month later, UN Security Council Resolution 1160 condemned “all acts of terrorism by the Kosovo Liberation Army”. Still, evidence now suggests that a number of Western states covertly sent Special Forces into Kosovo in 1998 to train the KLA (James Pettifer (2012) The Kosova Liberation Army, p. 178). More overtly, during Operation Allied Force NATO coordinated militarily with the KLA.

After NATO’s intervention concluded, the Security Council passed Resolution 1244 giving UNMIK administrative powers in Kosovo and charging NATO-led KFOR with maintaining peace and security. Despite the huge international presence, attacks against the Serbian community increased dramatically when NATO’s campaign ended, precipitating a round of “counter-ethnic cleansing”. Reports by Human Rights Watch and the Red Cross recorded that by October 1999 over 200,000 Serbs and thousands of Roma had fled Kosovo in what was described by the then chief prosecutor for the International Criminal Tribunal for the former Yugoslavia Carla Del Pointe as being “…as serious as what happened there before [NATO’s intervention].”

In its initial phase, the international administration made two fateful decisions: one, to tolerate the mass exodus of Serbs and two, to turn a blind eye to the criminality perpetrated by sections of the former KLA. According to a report produced on behalf of the Council of Europe’s Committee on Legal Affairs and Human Rights, the international administration, “favoured a pragmatic political approach taking the view that they needed to promote short-term stability at any price.”

There was some logic to this of course. Tackling the criminal elements of the KLA would have led to confrontations with an armed guerrilla organisation whose support they needed. Additionally, stopping the Serbian exodus, and confronting those who targeted Serbs, would have been costly, dangerous and angered sections of the Albanian population. Ultimately, the continued presence of Serbs in cities such as Pristina, Peja and Prizren would have constituted a persistent source of instability whereas their relocation to enclaves such as Northern Mitrovica and Gračanica removed various inter-ethnic flash points. Continue reading

Posted in Balkans, Guest Posts, International Criminal Justice, International Law, Kosovo, Serbia, Transitional Justice | Tagged , | 2 Comments

The Africa-ICC Relationship – More and Less than Meets the Eye (Part 3)

Graffiti in Cape Town, South Africa (Photo: Ben Sutherland / Flickr)

“All shall be equal before the law”. Graffiti in Cape Town, South Africa (Photo: Ben Sutherland / Flickr)

Over the last two weeks, I have attempted to critically examine and assess the relationship between African states and the ICC. In the first post, I critiqued popular assumptions about the relationship, namely that it is viewed as either the result of an unfair, neo-colonial ICC targeting an unwitting continent or of a misunderstood institution that is, in reality, representing the interests of Africans as a ‘Court for Africa’. Attempting to understand the politics and complexity of the relationship between African states and the ICC, such perspectives do more to obfuscate than illuminate.

In the second installment, I explored three cases: the surrender of senior Lord’s Resistance Army commander Dominic Ongwen to the ICC, the visit of Sudanese President Omar al-Bashir to South Africa, and the prosecution of heads of states. None of these crucial developments and issues can feasibly be explained by the dominant understanding of the Africa-ICC relationship.

Of course, it would be wrong to assume that these posts have been able to do anything more than scratch the very surface of this dynamic relationship. To insist otherwise would be to fall prey to oversimplifying the relationship. But what I have tried to demonstrate is that the Africa-ICC relationship is far more complex, both legally and politically, than presented by the Court, African states, or most observers. We need to do better than seeing the relationship within harsh dichotomies or tropes. If nothing else, that is the result of this three-part series.

In this third and final post, I want to expand the way that we look and judge the Africa-ICC relationship. Specifically, I want to argue that we need to expand the parameters of our understanding by examining and assessing the relationship not between African states and the Court but by taking a broader view of the engagement of African communities with international criminal justice. But first, here are some more direct conclusions that flow from this series.

Open and Honest Discussion

All of the parties involved – African states, the Court, and observers of all stripes – can and should do more to foster a more open and honest discussion and debate regarding the concerns and criticisms that African communities have of the ICC. Proponents of the Court need to understand that the criticisms levied against the institution are either real or so widely perceived to be real that they need to be treated as such.

At the same time, the ICC itself desperately needs to improve the way it communicates its work, particularly to affected societies. The Court’s public relations strategies are ineffective and, as a direct result, the ICC’s role is too often misunderstood, feeding a fertile breeding ground for misperceptions. The Court has done very little to deal with the critical conceptions of its work head-on. Its social media strategy is essentially non-existent and its website does little more than the dead-end of the internet to advance an accessible understanding of the Court’s work. Being more transparent, improving its social media engagements, and instituting a innovative and smart public relations strategy could dramatically improve knowledge of the Court’s work in affected communities and around the world.

At the same time, there is a need, for all parties, to acknowledge that the ICC has not – and perhaps cannot – transcend international politics. A recent op-ed suggested that the Court’s focus on African states is a result of them being ‘low-hanging fruit’. Indeed, there is a debate to be had about whether the Court’s focus on African states is the result not of them being African but because they are weaker states where the Court has jurisdiction. Part of this is structural: many strong states (the United States, Russia, China, etc.) are not members of he Court and are often outside the jurisdictional reach of the Court and yet are able to steer the Court’s focus via referrals from the United Nations Security Council. At the same time, there is at least some correlation between fragile states, political violence, and weak judiciaries – all of which are variables that help establish weak state ‘candidates’ for ICC and other forms of humanitarian intervention.

For scholars and interested observers, it behooves us to interrogate this nexus of power, political interest and justice. The primary focus of analysis of the ICC – both critical and not – has been on the Court’s impacts in those states and regions in which it has intervened. This has spawned an important debate on issues such as the relationship between conflict resolution and accountability as well as how to establish accurate measures of the ICC’s effects. These are no doubt important, but we should also go behind the veneer and explore the largely untapped relationship between diplomacy and the Court. Here, as I have argued elsewhere, we need a much richer understanding of the institutional interests that guide the ICC’s decision-making and, ultimately, its interventions. Gaining such an understanding may just be the key to truly discerning the Court’s selectivity both between situations and within them.

In general, the debate about the Africa-ICC relationship needs much more critical analysis. There is both more and less than meets the eye. But the way the relationship has been presented to date hinders, rather than helps, us see it.

Taking a Broader Look – More than Meets the Eye

Digging deeper into questions of power and diplomacy would enrich our understanding of the Africa-ICC relationship. But we also need to do a much better job understanding the broader relationship between African communities and international criminal justice. There needs to be a shift in focus away from myopically examining the ICC-Africa relationship to the role and development of international criminal justice on the African continent. And here there is a tremendous wealth of projects that needs more sustained attention and scrutiny.

There are numerous ongoing proceedings against alleged perpetrators of war crimes and crimes against humanity. In addition to the ongoing proceedings against Hissein Habré in Senegal, there have been domestic trials of ICC indictees, including Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya as well as former Ivorian first lady Simone Gbagbo. For a host of reasons, these trials, especially those of former Gaddafi regime officials, have been highly controversial and rightly criticized. It may be too soon to announce the onset of an era where we are witnessing an “Africa that judges Africa”, but it does seem evident that states are taking prosecutions for international crimes increasingly seriously and view such prosecutions as  part of their national political interest. Continue reading

Posted in Africa, African Union (AU), Central African Republic (CAR), Complementarity, Hissène Habré, International Criminal Court (ICC) | 5 Comments