I’m happy to announce that Patrick Wegner is joining JiC as a regular blogger! Patrick is currently doing research in Uganda on the effects of the ICC on the conflict in the north of the country and has a wealth of knowledge and experience to share with readers. His first post considers an issue that I spoke to him at length about when we met in Uganda: the ICC’s need to assess the impact of its work.

Court Room design in the new ICC premises ©schmidt/hammer/lassen architects

The work of the International Criminal Court, especially with regards to its involvement in ongoing conflicts, has been extremely polemic. In northern Uganda, the ICC warrants for LRA leaders have sparked a discussion about whether the Court is incapacitating those affected by the conflict that supposedly prefer traditional justice mechanism to ‘Western’ retributive justice. Many northern Ugandans also criticise the ICC for not investigating both sides of the conflict. They point out a history of National Resistance Army and Uganda People’s Defence Force crimes reaching back into the late 1980’s for which no accountability has been ensured to date.

In Darfur, humanitarian organizations have criticized the ICC for making their already difficult work even harder by indicting President al-Bashir. Within hours of the warrant, al-Bashir expelled 13 humanitarian organizations working in Darfur. The arrest warrant for President al-Bashir has also been criticized in general by the African Union and the Arab League for destabilizing the region and hindering peace.

Authors like Chris Dolan, William Schabas and Eric Leonard have pointed out errors of judgement committed by the Office of the Prosecutor or have accused the Prosecutor of not understanding the political implications of his decisions. Some of this criticism is justified. Two examples that come to mind are the joint announcement of investigations in northern Uganda by Chief Prosecutor Luis Moreno Ocampo and Uganda’s President, and the decision to issue a public arrest warrant for President al-Bashir in Sudan. Both decisions have been criticized heavily in retrospect and both have had consequences for the situation countries and the cases.

Due to the announcement of investigations in northern Uganda by President Yoweri Museveni, people in northern Uganda saw the court intervention as biased from the beginning. Repeated surveys have found that those affected by the conflict want to see both the LRA and the government held accountable for the crimes they have committed during the conflict. Seeing the Prosecutor and the President side by side made many locals think that the ICC is an instrument of the government that would only investigate the LRA. A later clarification by the Office of the Prosecutor that all sides of the conflict would be investigated was too little to effectively contravene the powerful iconography of the joint declaration. This miscalculation was one important reason for the strong initial hostility that the ICC met among the northern population and local civil society organizations.

President Museveni and Chief Prosecutor Moreno Ocampo, photo by Independent Photo

The decision to publicly apply for an arrest warrant against President al-Bashir of Sudan has also had negative repercussions for the situation in Darfur. It would be unfair to ascribe the eviction of aid agencies to the ICC, as the Sudanese government had been expelling agencies and their officials in the past. The direct reaction to the warrants was actually an attempt to blackmail the international community into withdrawing the warrants and should be seen as solely President al-Bashir’s responsibility. Yet, pursuing a sealed warrant would have avoided such an immediate backlash and would not have come at the expense of the ICC’s mission to guarantee justice. Additionally, the public arrest warrant was perfect propaganda material for the Darfuri rebel movements. It provided the rebels with another reason to reject negotiations with the government and strengthened their resolve to find a military solution as the pressure on the government could be expected to grow. At the same time, the ICC became part of the conflict as the investigations were exploited for propaganda reasons on both sides. Al-Bashir used them to claim a Western conspiracy to bring Sudan to its knees, thus rallying support even among Sudanese opposition parties. The rebels, on the other hand, emphasized that they were fighting against a criminal regime, with an indicted war criminal at its lead.

Arguably, these strategic mistakes could have been avoided with better knowledge of the situation on the ground. Nobody familiar with the situation in northern Uganda would have ever made an initial declaration at the side of President Museveni. And arguably, having followed the Darfur conflict and the failed negotiations up to that point, it was also pretty clear that the ICC would be drawn into the dynamics of the conflict upon publicly indicting President al-Bashir. Yet, the Office of the Prosecutor had not even tried to investigate the situation on the ground in Darfur due to security reasons.

I am not the first one to claim a lack of country specific expertise within the OTP. A number of authors have attested the court’s lack of ability to judge its political impact on the ground, and Danielle Goldstone has suggested creating a department for political considerations within the ICC. There are also public statements, made by the Prosecutor, that suggest the need for more expertise in this area. For example, Moreno Ocampo reportedly said at a conference in Chicago, celebrating the tenth anniversary of the Rome Statue, that if Kony is arrested, ‘we will have peace tomorrow’. Reducing the conflict in northern Uganda to the person of Kony ignores decades of coups and civil wars driven by an ethnically charged rivalry between the north and the south of Uganda. It also ignores the real grievances of the population in northern Uganda that feels marginalized by the government and lived in IDP camps under unspeakable conditions for the better part of a decade.

The Chief Prosecutor recently made a similar statement on the occasion of the arrest of the FDLR leader Mbarushimana. He suggested the arrest of the leaders was a breakthrough for demobilizing the militia in DRC. Yet, analysts say that the group operates independently from its political leadership, is being supported by a wide Diaspora network, and earns millions per year with the trade of conflict minerals. It is difficult to imagine how the arrest of political leaders could stop the FDLR on the ground under these circumstances.

Callixte Mbarushimana was arrested in France under a sealed warrant in October 2010. AP Photo/Michel Euler

Additionally, Moreno Ocampo himself has said that his staff is moved around between different cases and situation countries within the OTP, as seen fit, due to limited personal resources. This means that the staff in The Hague cannot be expected to have the knowledge to gauge the impact of ICC actions on the ground as they are working on a case for a limited time. Additionally, the lack of personnel leads to high workloads and the team members have to deal with complex legal matters which leave little time for understanding the political intricacies of a conflict on the ground. Finally, investigators working in The Hague have often very limited or even no field experience in the situation countries.

To sum up, there still seems to be too little understanding of the delicate political nature of international criminal justice interventions into conflicts among practitioners. I argue that there are three main reasons for this.

First, practitioners emphasise the need to uphold the law due to their legal professional background. If the law is compromised once, it is no longer taken seriously and enforcing it becomes that much harder. Even though this perception is quite true, the space for manoeuvre that still exists without damaging the integrity of the law is often overlooked. Particularly local notions of justice are often dismissed too readily.

Second, international criminal justice practitioners are working in an extremely hostile environment under a lot of pressure due to high workloads, high expectations of victims and other stakeholders, and attempts of accused parties to derail and discredit the investigations. This makes it more difficult for practitioners to distinguish between well founded criticisms and attempts to discredit their work.

Third, transitional justice is increasingly seen as an instrument for conflict resolution by different international actors. At the same time, its political dimension is increasingly ignored as the UN Security Council is trying to use international tribunals and courts in order to ensure peace, as has been the case in Rwanda, the former Yugoslavia, Sierra Leone, East Timor and Darfur. Calling for transitional justice in conflict contexts has become a mainstream approach that does not take the political delicacy of such an intervention seriously enough. The ICC is thus in need of a department capable of making risk assessments of investigation and prosecution strategies on the ground. The information compiled by this department should also be made available to the judges, especially in the Pre-Trial Chambers, as they also take relevant decisions including whether local justice measures meet the complementarity threshold of the Rome Statute.

Indictees like Sudanese President al-Bashir try to derail ICC investigations by attacking the court at public rallies. Photo by Philip Dhil/European Pressphoto Agency

The aim of an assessment unit within the ICC would not be to stop investigations under certain circumstances due to political reasons. Rather, its main task would be to ensure that investigations are conducted in a way that minimises the risk of political spill-over effects. In order to safeguard its independence, the ICC should not take political arguments into consideration when deciding whether to pursue a case. This is to say, political considerations should not play a role beyond what is absolutely necessary but it is unrealistic to assume that the ICC is acting in a political void. In order to fulfil its mandate to protect the interests of victims and the interests of justice, the Court needs the capacity to politically analyse the situation on the ground in order to determine how to proceed in its investigation strategy.