Global Policy Forum

By Marlies Glasius

The International Criminal Court was set up in 1998 and began operation in 2003. How has it discharged its responsibilties in relation to states, civil-society groups and the victims of human-rights abuse? Marlies Glasius presents an interim report-card.

The prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has a good eye for publicity. On the eve of the ten-year anniversary of the Rome statute which established the court in July 1998, he indicted his first head of state: President Omar Hassan al-Bashir of Sudan. This announcement has trumped the news emerging a few weeks ago, that the prosecutor's first suspect in custody, Congolese warlord Thomas Lubanga, may have to be released without trial because of prosecutorial errors.

Beyond the headlines, how well has the ICC been doing, and what impact has it made? Because no case has come to trial yet, the actions of the prosecutor take centre-stage at this point. As I will argue below, whilst he has been cautious and politically astute in his dealings with states, he has done much less to establish the legitimacy of the court with local populations, civil-society organisations, and victims. Ten years after the negotiations, and five years after the court hired a prosecutor and actually got to work, only five suspects are in custody in The Hague. They are all Congolese warlords, although the most high-profile arrest, Jean-Pierre Bemba, has actually been arrested for crimes committed in the Central African Republic. It is doubtful whether the indictment of al-Bashir on 14 July 2008, symbolically significant as it may be, will have any immediate practical implications. The Sudanese government was already an international pariah, and as long as al-Bashir does not travel to the wrong countries, there are no short-term prospects for his arrest. There have been arrest-warrants outstanding for the leaders of the Lord's Resistance Army (LRA) of northern Uganda since July 2005, and for two minor Sudanese figures since May 2007, though no arrests have been made. But this is not to say that the indictment have had no impact on the socio-political situation on these countries. The rest of this article will discuss how local populations, civil-society figures and victims have responded to the ICC's activities (for a fuller study of the court, see The International Criminal Court: A Global Civil Society Achievement (Routledge, 2007).

Case study: Uganda

Initially, "civil society" in northern Uganda appeared to turn almost unanimously against the court's investigation. Religious leaders, tribal leaders and international NGOs spoke against the court for a variety of reasons, but the paramount argument was that the investigation would keep Joseph Kony and the LRA in the bush and away from the negotiating table. Subsequent developments have somewhat placated the fiercest opponents. After a clumsy start, the prosecutor's office has invested heavily in outreach activities in northern Uganda. Moreover, the LRA has in fact engaged in the most serious peace negotiations to date after the arrest warrants were issued - although they are currently deadlocked. In summer 2007 the negotiating parties agreed that any accountability for past crimes would be dealt with at the national level, emphasising the possibility of utilising forms of "traditional justice". But whilst the prosecutor has refused to withdraw the indictments, the LRA leadership can never be quite secure that it will not be arrested. So the debate about whether peace should be prioritised over justice or vice-versa goes on (see Nicholas Waddell & Phil Clark, Courting Conflict? Justice, Peace and the ICC in Africa, Royal African society, 2008).

The other objection of local civil-society figures to the indictments is their one-sidedness. No army or government figures have been served with ICC arrest-warrants. The LRA has been spectacularly violent, and it is generally accepted that the national army has killed or tortured civilians more sporadically. But it has been responsible for implementing the policy of forcing nearly 2 million people in the region to live in displacement camps, indirectly causing thousands of deaths through lack of hygiene, health services or adequate nutrition. The army has generally failed to do anything to protect the people in the camps from the LRA and has contributed to the level of brutality in the camps. The prosecutor maintains that he operates with a threshold of gravity of crimes, on the basis of which it gave priority to the LRA leadership. From such statements, northern Ugandans and others have drawn the inference that the prosecutor rates the forced displacement of hundreds of thousands as less grave than the killing, maltreatment and abduction of thousands. This may be a sound legal judgment but its moral justice is contested.

Case study: Democratic Republic of Congo

In the DR Congo investigation, unlike in Uganda, the transfer of Thomas Lubanga to The Hague was initially applauded by all except fellow extremists of his own ethnic group. In DRC there have been not two but many parties to the conflict, and many perpetrators of heinous crimes, but those of Thomas Lubanga were particularly notorious. Moreover, unlike the elusive LRA suspects, he was already in custody, and with the agreement of the DRC authorities his arrest was actually going to give the judges their first case, giving a message against impunity just ahead of DRC's first free elections. But further arrest- warrants took a long time to materialise. Moreover, while the five LRA suspects are charged with murder, enslavement, rape, pillage and a host of other crimes, Thomas Lubanga has only been charged with the enlistment, conscription and use in hostilities of children under the age of 15. These narrow charges are surprising as the involvement of Lubanga's L'Union des patriotes congolais (UPC) in episodes of ethnic cleansing have been well-documented by human-rights groups. This specific focus has had some positive and many negative reverberations. One positive consequence has been to throw the spotlight on a practice that had been widespread, and not always recognised as particularly criminal, in the conflicts in the DRC and the wider region.

At the same time, the Congolese people must marvel at the apparent priorities of international justice, putting the use of child soldiers above mass murder, torture and rape as the only one deserving of immediate prosecution. The subsequent warrants, including much wider charges, do not necessarily rectify the impression made by the first case. On the contrary, the fact that leader of rival Ituri factions are accused on wider charges could further inflame ethnic tensions by allowing the interpretation that crimes perpetrated by Hema, historically the dominant ethnic grouping, are not as serious as crimes by other groups such as the Lendu. The glacial pace at which the court moves has been a major source of anxiety and disappointment for civil-society figures and victims. Nearly four years have passed since the opening of the investigation; not a single case has moved to trial stage. Justice undoubtedly always appears slow to victims, but time is more pressing in the context of a country like DRC, where the average life expectancy is low and the HIV infection rate is very high. Worse, it now looks as if the Lubanga case may never go to trial at all. It turns out that the prosecutor has been signing swathes of confidentiality agreements with witnesses in order to progress the case, to the point that the judges have found that the defendant's right to a fair trial have been crucially impaired, and have ordered Lubanga's release. This decision is currently being appealed by the prosecutor and the victims' counsel.

Case study: Sudan

From the perspective of high politics, the Darfur case is the most high-profile one, because it has been referred to the ICC by the United Nations Security Council, and because the referral has now led to the first indictment of a head of state. Yet from the perspective of victims, it may actually be the least relevant case, because the prospects of the ICC making a difference to their situation are particularly slim. When the investigation was first announced, victims in displacement camps had high hopes that this meant that "the international community" would come to their rescue. Instead, it is in the Sudanese situation that the lack of an international police force supporting the court is most acutely felt. The African Union force could not even begin to protect the population, and it is unlikely that the larger "hybrid force" of the African Union and United Nations will have either the mandate or the appetite to execute arrest-warrants. Hence, as Darfurians will increasingly begin to realise, in the current situation the arrest-warrants have only symbolic significance.

Case study: Central African Republic

The most recent investigation, announced in May 2007, is that in the Central African Republic (CAR) (see Gérard Prunier, "Chad, the CAR and Darfur: dynamics of conflict", 18 April 2007). The manner in which this case came about has been substantially different to the others. Some very small, local human-rights organisations first alerted their international counterpart to the possibility of soliciting an ICC investigation. When their report failed to attract the prosecutor's attention, they appear to have engineered a state referral. Even after this, it took another two-and-a-half years for the prosecutor's office to finally be convinced to open an investigation. As a result, rather than being seen as barging in without prior consultation, the ICC is seen as having come in, after much persuading, at the initiative of civil society figures, with lukewarm support from the state. Victims are highly mobilised and claiming a degree of ownership of the process. Religious leaders and public intellectuals are willing to give the ICC a chance. On the other hand, the CAR case suffers from the same long-term problems as the other three: the slow pace of investigations, very limited outreach to a dispersed and largely illiterate population, and a context of generalised poverty.

Civil society and victims: positive impacts

Despite the limitations of international justice and the mistakes the prosecutor may have made, there is no doubt that the ICC is having certain positive socio-political effects in the situations under investigation, and perhaps even beyond. This is evident in three ways. First, it is clear that the idea of achieving justice through international trial and punishment of perpetrators of massive crimes is not too abstract or too remote from the experiences of victims to be understood and appreciated by them. Both secondary sources in Uganda and the DRC and primary research by this author in the CAR suggest that victims have a distinct and sometimes passionate interest in the doings of the court. It is of course doubtful how this interest will be sustained in the face of very few, very slow trials, or no arrests at all. Second, in all the situations the ICC has had the unintended effect of opening debates in local civil society which might otherwise have remained closed. In the Ugandan case, while it remains uncertain to what extent there will actually be accountability for past crimes on either side of the conflict, the ICC involvement has opened the space for local and national debates about desirable forms of accountability. In the DRC, the use of children in war has been put on the agenda. In the CAR, the ICC's focus on sexual crimes is helping victims to break cultural taboos on discussing rape. Third, anecdotal evidence suggests that the investigations of the ICC may be having some effect on the behaviour of would-be perpetrators of war crimes and crimes against humanity, in particular African warlords, although this effect may wane if the ICC continues to be unable to serve its arrest warrants in Uganda and Sudan.

Capacity constraints

The ICC is a very small and very young institution. With a staff of a few hundred, it is reliant on the goodwill of states and civil-society organisations for all aspects of its operations: for its budget, for executing arrest warrants, for conducting outreach, for tracing evidence and finding witnesses willing to testify. To anyone who is not a legal professional, the number of indictees after five years of investigation does seem very small, and the investigations and trials seem to be proceeding extremely slowly. The organs of the court need to make much more of an effort to admit and explain from the outset of an investigation that arrests will be few, and convictions are uncertain, and in the best case will take many years to achieve. Finally, it needs to be frank with victims, including potentially valuable witnesses, about its lack of capacity to provide financial support, whilst pointing to the victims' trust fund as a possible alternative source of relief.

Attitudes and policies

The ICC, unlike domestic courts, needs to establish its legitimacy, and the prosecutor's actions are particularly crucial in this respect. On one level, Luis Moreno-Ocampo appears to be well aware of this. He has avoided controversial investigations in (for instance) Afghanistan, or against British soldiers in Iraq. Moreover, against expectations, he has not yet opened a single investigation on his own authority. Finally, the only indictment against a government official has been the Sudanese indictment sanctioned by the United Nations Security Council. None of his current actions could cause his legitimacy to be called into question by governments, be they African or western. But he has worked much less hard to seek legitimacy within civil society. As a result, the prosecutor has been seen as biased by the conflict-afflicted population in northern Uganda, as too timid by human rights activists in the DR Congo, and too slow by victims in Central African Republic.

It is not only the indictments thus far, which are after all only a handful, that have contributed to the impression that the prosecutor serves governments, not civil society or victims. From the outset, the activities of the organs of the court, not just the prosecutor, have been characterised by what one commentator has called an "aloof and secretive demeanour". Most victims have not seen much of the court at all. "Field offices" are established in capitals, not in the conflict regions; visits by high officials to situation-countries are rare; outreach activities are meagre (although they are expanding). It seems unlikely that this is the result of a deliberately policy of snubbing local civil society groups and victims. More probably, it is simply unfamiliar territory to the court's officials. The law has its own jargon and procedures, in which victims, witnesses and bystanders are to some extent reduced to abstractions. Discussing the rationale and merits of one's actions might even be considered as breaching the ethos of impartiality. However, after widespread criticism of the lack of outreach, and particularly after the (for the court) unexpected initial hostility in northern Uganda, there has been some recognition of these shortcomings, and the court now has both the will and a budget to address them. The "shift towards the conception of outreach as a participatory dialogue rather than simple information provision" pleaded for by the International Bar Association will not happen overnight. But it must occur if the ICC is to establish its legitimacy with those who are supposed to be its beneficiaries: victims and their interlocutors in civil society.

This article originally appeared on openDemocracy.net under a Creative Commons licence. To view the original article, please click here.