Global Policy Forum

By Tim Allen

I remain broadly confident about the international criminal court. Here's why

On some issues I would go further in criticising the international criminal court (ICC) than does Richard Dowden. For instance, it is difficult to avoid the impression that the court is biased in favour of the Ugandan government. The ICC prosecutor unwisely chose to announce its intervention in northern Uganda at a joint press conference with President Museveni, and eyebrows have been raised at its decision to issue warrants only for members of the Lord's Resistance Army (LRA) and not the Ugandan forces. The ICC prosecutor argues that he has applied "gravity criteria" to alleged crimes. Yet over 1m people have been forced to live in dreadful displacement camps, many of them by the Ugandan army. Forced displacement is a crime within the remit of the court, and many more have died in the camps than at the hands of the LRA, so why has no one been held to account? The answer, according to the prosecutor, is that gravity criteria are linked to cases of instrumental killing. Indirect killing in displacement camps does not count. But if that is so, why was a warrant subsequently issued for Thomas Lubanga in the Democratic Republic of Congo, who stands accused of enlisting children? Is that worse than murder? If so, why was it not considered so grave in Uganda, where the practice has been widespread on both sides of the conflict?

Such apparent biases and inconsistency do nothing for the ICC's image. Combined with the kind of argument put forward by Dowden, they seem to make a compelling case against the usefulness of the court. But I am not convinced, and remain broadly positive about the ICC. Why?

There is a danger, when discussing justice and war in Africa, of falling into a deeply pessimistic view that assumes that Africans don't need conventional judicial mechanisms; that they have found a way of living with dreadful events, so should be left to get on with it. Certainly many Africans have not had much choice about the role of justice in their lives. But change can be dramatic. The ICC statute commits signatories, including 29 African states, to end impunity for those who perpetrate the worst crimes. It also requires the court to act in the interests of justice and victims. This is an agenda that most people I know, including most Africans, find attractive.

Dowden points out that almost all of Africa's nastiest wars in recent times have ended in local deals. In Mozambique, Sierra Leone, Angola, Nigeria, Zimbabwe and South Africa, those that have raped and killed have been reintegrated into society, and the leaders of failed movements bought off. But there are specific reasons why each of these settlements has seemed to work, and many other attempted settlements have failed, including some in the countries mentioned. Historical evidence tends to show that appeasement fails more often than it succeeds. Moreover, forms of forgiveness after terrible acts are hardly unique to Africa-think of France after the second world war, or the US after the civil war. In most cases, the key factors in making reconciliation possible are an adequately functioning state combined with rising incomes.At the same time, it is much harder than is frequently asserted to assess the political effects of international criminal justice. Particularly in a situation of ongoing war, we have almost no experience of it being tried. However, prosecution through institutions whose actions are based on agreed principles is widely considered to be helpful in national judicial systems. Also other international responses to extreme violence have frequently made things worse.

Returning to the specific case of Uganda, I disagree with Dowden's claim that the ICC's actions there show that it has learned nothing from the problems that have bedevilled other international tribunals. Indeed, it was probably to avoid some of the dilemmas that have faced the Rwanda tribunal that the ICC's prosecutor has been so keen to earn President Museveni's public approval. This turned out to be an error. There have been others. But the ICC is on a learning curve as its staff work through the implications of its statute, both in law and in the real world.

The court has actually shown a rather astute sense of timing in Uganda. When it became involved in the country in 2003, peace talks were going nowhere. That changed in 2004, at least partly because of the ICC referral. Sam Kollo, who led the negotiations for the LRA, was keen to strike a deal to avoid being arrested. The court's response was to keep a low profile, until Kollo had surrendered to the army and the peace talks had ground to a halt in 2005. By that time, warrants had been prepared for five of the top commanders of the LRA, but were being kept under seal. Their existence was eventually leaked, but far from ending the possibility of further discussions, it helped kickstart the process again, this time across the border in Sudan. The LRA and some of those supporting the talks argue that the existence of the warrants now makes a final settlement difficult. But it is also one reason both sides are willing to go on talking. On the one hand, the LRA commanders fear the consequences of being tried in The Hague. On the other, the Ugandan government has become aware that the LRA commanders would have recourse to a high-quality defence team, and revelations made in public proceedings could be very embarrassing.

In the end, some arrangement will be found for the warrants. Under the court's statute, the UN security council can place an annually renewable hold on their execution. Another possibility is that the complementarity procedures in the statute will be adapted to recognise some combination of adapted "traditional" rituals with more conventional judicial measures. Perhaps, for those who want the ICC to stand for a particular approach to justice, this will mean it has failed to fulfil expectations. My view is that it would not be such a bad thing to strike an arrangement with the LRA that involves compromises over the ICC prosecution, so long as it preserves the principles expressed in the court's statute. That strikes me as far more appropriate than the offer of politically powerful positions and blanket impunity. To me it seems like a significant step forward.