What the ICC Review Conference Can’t Fix

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[Global: International Criminal Court]

At a meeting with Africanist scholars in London in 2007, ICC Prosecutor Luis Moreno-Ocampo faced tough questioning over why the ICC had decided to pursue only the Lord’s Resistance Army (LRA) and ignore the Ugandan government’s alleged war crimes and crimes against humanity, particularly its devastating policy of mass forced displacement and internment. 

Finally, his patience apparently having run out, Ocampo interrupted one of his most insistent questioners and, pointing an accusatory finger, burst out: “If you want to support the LRA, fine! But you should know they are a criminal organization.” 

This type of response—ad hominem attacks on those who question his actions—appears to be part of a wider pattern of behavior on the part of the Prosecutor, charted most damningly by Alex de Waal and Julie Flint, and has done much to undermine the legitimacy of the ICC. 

This has led some ICC supporters to maintain that the Court’s problems will be greatly ameliorated once a new Chief Prosecutor takes the reins. As much as I agree that Ocampo represents a major problem for the ICC, I also believe that focusing on his personal failings obscures the deeper, structural problems with the Court as it is constituted. These problems will not be solved by the appointment of a new Prosecutor, nor will the Review Conference in Kampala be able to address them. 

An honest assessment of these problems, I believe, should lead us to ask tough questions about the Court as an institution of global justice, particularly in terms of its work in Africa.

The first of these inherent problems stems from the fact that the ICC, like any international mechanism intended to promote or protect human rights, faces the impossible task of acting morally in a political world rent by power inequalities, domination, and violence. Thus, because it lacks a coercive capacity of its own, the ICC, in its quest for efficacy, must accommodate itself to political power, which it has done through two routes.  First, the ICC has prosecuted only Africans. This decision has been a function of international power relations which make Africa the only region weak enough so that Western intervention and experimentation can take place there without accountability, and unimportant enough so that the West will allow the ICC to act as its sub-contractor there in place of more direct forms of intervention. 

Second, the ICC has accommodated itself to political power within Africa—this is very clear in Uganda, where the ICC eagerly became an instrument of the Ugandan government’s counterinsurgency so as to ensure Uganda’s cooperation with its prosecution of the LRA. In doing so the ICC also further proves its willingness to cooperate with US military interests in the region.

The ICC and its supporters have had to respond to these accusations of politicization. They have done so—when not resorting to ad hominem attacks—through a rhetorical strategy of shifting back and forth between declarations of outright denial and invocations of pragmatic exigency, between denying that ICC decisions have anything to do with political considerations and instead derive from legal reasoning alone, and admitting that the ICC goes after accessible targets in order to ensure its own survival.  The denial side of this rhetorical strategy is evident when ICC supporters contend that the Court’s exclusive focus on Africa stems from the continent’s being the site of the most cases of extreme violence which require international legal intervention, and from the fact that African states have voluntarily referred these cases to the ICC.  Thus, the ICC’s accommodation to political power is denied, the focus on Africa is cast as a purely legal decision, and the Court’s prosecution of certain parties to the exclusion of others is explained throughreference to an obscure calculus of the gravity of crime.

But that is a hard line to maintain when the ICC is pressed on its decision to get involved in violence in Guinea and not in Iraq, Afghanistan, or Israel, or on its decision to ignore mass violence against civilians in Somalia by Ethiopian and US forces, or to dismiss violence by the Ugandan government against its own or neighboring peoples. Faced with such evidence of the ICC’s accommodation to power, the Court’s supporters tend to shift their argument from outright denial to an admission of the necessity of pragmatism on the ICC’s part in order for it to get any cases tried, but justify that pragmatism on the basis that it will result in some justice being done, which is better than no justice at all.

This rhetorical strategy of alternation between denying that pragmatic considerations influence ICC decisions and admitting that the Court must conform to political exigencies in order to get anything done, between dismissing its critics with self-righteous declarations of the ICC’s role as the instrument of global justice and dismissing its critics with the demand that they be realistic—this strategy must itself be dismissed. 

We need an honest assessment of the ICC’s capacity to be an instrument of universal and impartial justice, a need that cannot be avoided, as some ICC supporters attempt to do, by translating the gap between the ICC’s current—partial—practice and impartial justice into a temporal gap between the imperfect present and an inevitable future in which the ICC will overcome the political interests of weak and strong states alike.

This untenable evolutionary narrative lacks empirical grounding, and those focused on bringing justice to the world they live in now cannot afford such an ill-conceived faith.

Instead, we need to throw light on the consequences that result from the ICC’s very real need to abide by these strict political limitations in order to ensure its own efficacy and survival. 

For those who argue that some justice is better than no justice, the ICC’s accommodation to power is not a bad thing but rather simply the constitutive condition for the partial but genuine justice of the ICC. In the same way, according to those espousing the evolutionary narrative, Allied victory in WWII provided the constitutive condition for the partial but genuine justice of the Nuremburg trials.

The argument that some justice is better than no justice, however, does not hold. First, from the perspective of the survivors of conflict, criminal prosecutions of one side and not the other can appear a travesty of justice instead of its partial realization—“some justice” may not be justice at all.

More generally, the problem is that the assertion that some justice is better than no justice proclaims legitimate any politicization of justice, any instrumentalization of legal institutions to political interests, however unjust those interests are. From this point of view, it simply does not matter that justice conforms completely to repressive, violent political power locally or globally; as long as cases are tried and “some justice” is done, everything is fine.

This is problematic morally, but also very dangerous politically since it declares international justice available as a mantle to be draped at will over political interests by those with the power to do so. As a result, the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice.

The second inherent problem is that the ICC and its supporters have defined “global justice” for Africa as a goal that is to be pursued exclusively through the ICC and other formal legal mechanisms, thus restricting those issues that can be addressed and those actors who can be held accountable.  In monopolizing the discourse of global justice in Africa, the ICC has placed certain fundamental issues outside the scope of what can be defined as unjust and thus subject to challenge and contestation through the pursuit of global justice.

This becomes obvious in terms of the ICC’s subject matter jurisdiction: the forms of violence, repression, and inequality that can be challenged as “unjust” are restricted to the most spectacular forms of overt violence. Less spectacular forms of domination, repression, and violence—such as economic exploitation, Western sponsorship of violent and anti-democratic political forces, internationally-enforced disparities in access to medicines, trade regimes that undermine development and food security—none of these can be challenged through the pursuit of global justice when global justice is defined by the ICC. 

Global justice is exclusively associated with punishing the “most serious crimes of concern to the international community as a whole,” conceived of as mass atrocities, while those crimes that serve the interests of the “international community” are conveniently outside the ICC’s scope.  Mass atrocity is naturalized as the most pressing form of global injustice, and its prevention and punishment are naturalized as the most pressing issue for the pursuit of global justice, trumping all other concerns.

Personal jurisdiction under the ICC is similarly restricted, focusing as it does on placing the entire blame for violence on a few particularly “savage” Africans—whether Omar al-Bashir or the LRA—by misrepresenting situations and reducing the wide set of actors and structures involved in violence to one or two individuals. 

By focusing on those (Africans) with “greatest responsibility,” the ICC simply ignores the criminal responsibility of Western states, donors, aid agencies, and corporations even in those episodes of violent atrocity that the Court is willing to investigate.  And finally, the ICC’s limited temporal jurisdiction excludes centuries of injustice, an entire history of Western violence in Africa.

Now, if the ICC were conceived as simply a technical mechanism for use in specific circumstances, there would be less of a problem. The problem, however, results from the ICC’s effective monopolization of the language of global justice in Africa. 

Thus, there is a vast regime of institutions and organizations engaged in a massive pedagogical project trying to build support for the ICC as the exclusive arbiter of global justice.  It is precisely through the ICC’s mechanisms for victims’ “participation” and “empowerment” that the Court restricts people’s concepts of injustice and justice to those provided by the ICC and thus to put entire forms of domination, violence, and inequality beyond the scope of justice. 

This pedagogical “empowering” project thus furthers the management of Africa in the service of Western political and economic domination through the very discourse of global justice.  The irony is that the discourse of global justice is uniquely positioned to challenge those forms of Western domination and international inequality, and so the ICC ends up impoverishing what should be the radical and emancipatory language of global justice.

It seems clear that neither of these two inherent problems—the ICC’s counterproductive accommodation to power and its impoverishment of the discourse and practice of global justice—can be dealt with throughreform of the ICC’s Statute, let alone through a new Chief Prosecutor. 

Instead, these are problems fundamental to the ICC as an international legal institution, and they may in some form undermine any effort at finding global justice through law. Thus, the ICC’s interventions need to be restricted to those cases where African citizenries themselves request that it play a role so that its politicization is minimized, and its self-serving claims need to be brought under control so that it does not monopolize the discourse of global justice. 

At the same time, these problems point to the need for alternative, democratic projects of justice to be articulated and developed, projects within which the ICC, perhaps, will play a part.

Adam Branch is assistant professor of political science at San Diego State University and has a Ph.D. in political science from Columbia University.  His work has examined the politics of humanitarian and human rights intervention into civil war in Africa.  He has published widely in political science and international studies journals and recently finished a book manuscript on the civil war and Western intervention in the northern part of Uganda. In addition to his academic work, he has also worked extensively with local human rights organizations in Uganda.  More information can be found at his webpage: http://www-rohan.sdsu.edu/~abranch/

First posted on  www.africanarguments.org

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