23 May 2014

ICC and the problem with the globalisation of justice

This topic has been kicking around my brain for the last few months. Really, ever since Kenya tried to engineer a pull-out of ICC by the entire AU, mid-October last (which we will get to). Even before that, though, spurred by a somewhat nihilistic running joke among my team after yet another donor refused to continue funding programming in a remote region of Province Orientale. Despite the obvious deprivation of the area, donor after donor has retracted their funding with the excuse that the area can no longer be considered an emergency, thereby prompting the project manager to blackly opine that they wished Kony would attack again. Not enough displacement? What if we texted the LRA? You guys rape and pillage, and we’ll clean up after. We might end up in front of the ICC, but we’ll have beaten Syria’s funding numbers (our HQ is forever comparing us – unfavourably – to the programmes in Syria and South Sudan, who seem to be securing funding hand over fist)! At any rate, the ICC came to mind yet again a few weeks ago with the Congo conviction (more on that, too), and I’m now finally getting around to thinking about it in greater depth. This, of course, does not mean that I have any more clarity on the topic, but only that I am – hopefully – slightly more articulate that I otherwise might be.

I am, for my sins, an intuitionalist. I continue to believe that the good of the ICC, UN, and other international bodies outweighs their ills, despite considerable first-hand evidence to the contrary (I also feel that the general incompetence and negligence of the UN is its most unforgivable sin, rather than those Congress tends to accuse it of. Some sort of vast, complicated conspiracy in which it’s trying to take away our guns or teach our children Esperanto would be so much more interesting and engaging, but that’s a conversation for another day). On balance, I think the very fact of the ICC’s existence is a triumph for the international community. Unfortunately, existing alone, while necessary, is not sufficient for this or any court to remain a success. One also must do, not simply be. So, it is with some trepidation that I try to approach the topic of why the ICC is hot mess. Because it is, make no mistake.

As a bit of background, the International Criminal Court was established by the Rome Statute in 2002. There are some 122 (I think) signatories to the statute – 122 nations in the world recognize the legitimacy of the ICC. Optimistically, the Court is one of last resort and thought to beyond the reach of the corruption and incompetence of local courts. That is, it’s a sort of stop-gap, when local judiciaries cannot or will not function. This could be because the state is such a disaster or because the trauma associated with the crime is so immense that the state itself cannot try the alleged perpetrator (perhaps because there are too many – like the Rwandan genocidaiers – or too highly placed – think Omar al-Bashir).

However, it is only intended to address a very specific subset of issues, ones that are supposedly so heinous that they warrant the involvement of all of the peoples of the world. These include war crimes, genocide, crimes against humanity, and a very select set of human rights abuses, whether committed during war or peace time. The premise that, for some crimes, the global need for justice outweighs, or is at least on par with, that of the direct victims is interesting, but might well be shenanigans.

At any rate, the ideas underpinning the Court are all well and good, of course, but (as is the case with many an international body) things become a bit trickier when you try to put them in practice. I suppose that the misadventure that is the ICC should have been seen a mile away and half a century ago, what when a similar institution did not emerge during the halcyon days of international institutionalism following WWII. Indeed, one would have expected that the Nuremburg and Tokyo trials would have naturally led to an internal court being made permanent, but it took a good 50+ years and several more horrifying instances of mass violence (specifically the Yugoslav war and Rwandan genocide, the latter which is supposed to shutter next year has cost the international community more than 1.7 billion USD and only managed to indict 92 people in 20 years. One case dragged out for 10 years. I would love to get more into the ICTR vs. gacaca process, with tremendous differences in price tag and timeline, as well as potential for witnesses getting iced, but another time, perhaps) with associated, internationally-run tribunals. Where one might have expected that half-century of reflection to turn out a high-functioning, well-informed product, one would be charmingly naïve.

Let’s start with the basics. All criminal justice systems, no matter their scope or efficacy, face a similar subset of issues. Evidence collection. Witness tampering. Due process. Insufficient funds. All that jazz. The ICC has all of these, but with crimes that are really, really difficult to convict on and with even fewer resources. It’s the Order without the Law, but on a global scale. Let’s take a gander at the Congo trial I mentioned earlier. By way of a recap, one Germain Katanga (former FPRI commander) was found guilty of war crimes for his involvement in a 2003 massacre in Bogoro (this is where we go to the waterfalls, when security is good enough. It’s terribly pretty). He is only the second person to be convicted by the ICC since its creation in 2002 (and how’s that for a success rate?!). He was convicted as an accessory (planned and got weapons for, but was not directly involved in) to an attack that killed more than 200 people. “According to the prosecution, the attack happened early in the morning and some villagers were shot while they slept, while others were cut up with machetes to save bullets.” Lovely. “The judges found that women who survived the massacre had been raped or kept as sex slaves but they did not find enough evidence to convict Katanga of carrying out these crimes.” Proving someone directly ordered his troops to engage in mass rape is a tall order (though you would think his allowing them to take sex slaves would be easier to prove. Did he just shrug and offer to overlook it this one time?), short of an A Few Good Men-style meltdown or outright snitchery. Which happens so very often within military units, even of the para-military persuasion. A much more likely scenario, especially among rebel groups, is that commanders obliquely encourage such actions among their troops by dehumanizing rival tribes or civilian targets.

I should not that it’s not always a question of outright witness tampering or intimidation that leads them to recant or refuse to work with ICC investigators. Indeed, the former ICTR prosecutors noted that many witnesses clammed for their won mental health. In the absence of comprehensive PTSD treatment, witnesses intentionally forgot some of the worst of the genocide so that they were better able to survive its aftermath.

In Afghanistan (the prospect of cases in Afghanistan makes the coalition deeply unhappy), the ICC prosecutor, Ms. Fatou Bensouda, has cited difficulties due to security considerations (imagine that) and a lack of cooperation by key sources. When your raison d’être is to provide justice to places where there is no functioning legal system (which is often collateral damage during a civil war) or where corruption and intimidation are rife (thereby lessening the possibility of forthcoming witnesses), you rather seemed doomed to failure, no? Referrals from the Security Council – while rare – are also intensely problematic, as they allow a state(s) that has not yet ratified the Rome Statue to subject another state to its punitive oversight. The lack of follow-up enforcement by the SC means arguably even less success with these cases than with those referred by states (we’ll get to the quintessential example of Sudan in a bit).

Indeed, the fact that states who are not party to the Rome Statute (hello, US!) can have a hand in siccing the Special Prosecutor on others raises the question of how the ICC can ensure an equal application of justice. I keep coming back to Congo, not (only) for the obvious reasons, but because it’s such a good case study for these sorts of things. Like the many rebel groups they fight, the FARCD is notorious for use of rape at a weapon and attacks on civilians (which makes sense, because the line between the two – rebel and state soldier – has historically been rather fluid). So when your armed forces have a culture of rape infinitely more dramatic than the one we talk about in the States (which I’m not trying to undercut. I believe that we have a violence against women problem back home, too, but it’s a question of immediacy), who do you target? Individual perpetrators? Unfortunately, that’s no really feasible – a single instance of rape, while horrific, does not, one imagines, rise to the level of a crime against humanity. But then how do you go after a commander for all of the rapes, even if he didn’t commit one himself? How do you prove that kind of institutional culpability, especially when it didn’t even happen with our boy Germain, who presumably lacks the protection one might garner by being a member of the formal security structure? I mean, just try to imagine the ICC attempting to prosecute the torture and abuse at Abu Ghraib. Going after the faces from the photos, wearing cocking grins as their victims lie at their feet, would be satisfying, to be sure, but would hardly address the underlying issue that commanders had – even unintentionally (I’m so sure) – allowed a conviction to develop that such impunities would not only be tolerated, but venerated. Even if, as the US military claimed in that instance, it was just a ‘few bad apples’ acting out, does not their command structure bear some responsibility for their actions? It would rather seem to be the entire point of the military hierarchy, actually. In that case, is negligence in the face of a crime against humanity enough of a charge for prosecution on a global stage?

Of course, if you follow most episodes of institutional violence far enough, you generally end up at the same place: the Head of State. The Rome Statute “However, a central purpose of the ICC is to prosecute government leaders who might otherwise use their positions of power to secure impunity for their crimes.” Rome Statue explicitly affirms that Heads of State or Government shall in no case exempt a person from criminal responsibility.” Indeed, were the ICC to exempt heads of state, could force those in power to double down and morph into President’s for life or the like, and I don’t think that’s what they were going for (I cannot stress this enough – if you want to avoid prosecution, WIN). Of course, actually prosecuting a sitting president/prime minister/despot presents its own unique challenges and backlash, several of which are currently being advanced in Kenya. (Kenyatta, who we will get to in a moment, also using this one).

The relation of the Court to on-going insurgencies is yet another interesting topic, especially in how the possibility of prosecution weighs on leadership. In some instances, such as with Laurent Nkunda, the former leader of the CNDP (predecessors of M23), supporters of the ICC have noted its deterrent effect. In 2007 and 2008, Nkunda reportedly expressed concern that the ICC would target him for prosecution, leading him to attempt to curtail abuses committed by his troops. Even if an immunity agreement could factor into a peace accord, would that not complicate the issue of justice? Additionally, there is also evidence to suggest that the threat of the ICC has driven some insurgent leaders – ahem, Kony – further into the bush and prolonged their activities.

According to Hans-Peter Kaul, a former, I think, ICC Judge, the Court’s overarching problem is its ‘critical dependency on effective cooperation from states, member and non-member alike. The ICC has no executive or police powers of its own, meaning that, by design, it is ‘characterized by the structural weakness that it does not have the competencies and means to enforce its own decisions.’ States, therefore, must be willing the foot the bill for and enforce the arrest warrants of the Court. This is of course somewhat in tension with another intentional design flaw of the court, which is its complementary nature. The ICC only has jurisdiction ‘in and when states which normally would have jurisdiction are either unwilling or genuinely unable to exercise their jurisdiction.’ So…the Court can only act when states are unable to, only the Court never has the capacity to act, and is in fact dependent on states to function. That makes perfect sense. I wonder how it feels to work for an institution that was structurally doomed to failure from the get-go. Talk about a bunch of starry-eyed idealists! And they’re all lawyers! But since when has the almost perfect probability of failure meant that you shouldn’t do a thing that should be done? Full speed ahead, ICC, and damn the torpedoes.

Underpinning the many structural flaws of the Court, though, is a more basic definitional problem: what is a crime against humanity? Let me direct your attention to Latin America, which has the highest murder rates in the world. With only an eighth of the world’s population, it accounts for more than one third of its murders, most of which go unsolved and unpunished. That is BANANAS. At least on the surface, the lion’s share of Latin American states also has functioning judiciaries, but clearly something is going wrong. Where, then, does the ICC fit into this scenario, if indeed it does at all? It would seem beyond absurd to suggest that the ICC should try individual murders, but if mass rape can be a crime, might not the persistent impunity of criminal syndicates and drug cartels also rise to the level of a crime against humanity? The jurisdiction of the court is not nearly as clear cut as would be helpful.

In recognizing these difficulties, does that mean that the ICC should only target those they can reach? Or should it cast a wide net to make a point and hope that someone is game enough to arrest a visiting head of state some day? It doesn’t seem able to answer that question itself, just yet. But as it keeps vacillating between low-level rebels and heads of states, it has been accused of selective prosecution and become ensnared in the tremendously tactile problem of politics. And this gets us back to Kenya and the current kerfluffle of what some have dubbed the ICC’s Africa Problem.

For the moment, however, I have babbled enough with this post that was mostly a series of vexing rhetorical questions I didn’t even attempt to answer. I even failed to address the issue in Kenya, which is what inspired me to write in the first place. For shame! Perhaps the weekend will give me the clarity that months of reflection and free writing have not.