**

This debate aims to gather the ongoing discussions about the limits and possibilities of international justice ahead of the Review Conference of the Rome Statute scheduled for June 2010 . The essays in this collection include views from scholars analyzing the clarity of different provisions of the Rome Statute, practitioners interrogating the contribution of prosecutions to stability and its balance with local reconciliation efforts, and activists advocating for more support for transitional justice measures in general and the International Criminal Court (ICC) in particular.

Professor Larry May, a scholar who has written widely on war crimes, launches the discussion by highlighting fundamental aspects of the Rome Statute that are still in need of clarification. He points out that it remains unclear whether the two elements of war crimes – systematicity and widespreadness – have the same requirement in terms of “state or organizational policy”. Responding to the recent request for further information to demonstrate state policy by the judges of the Pre- Trial Chamber (PTC) in the Kenyan case, May suggests that systematicity may need more evidence of state policy more widespreadness.  He explains:

It might be that the State policy requirement of crimes against humanity that is associated with widespreadness is considerably easier to meet than that for systematicity. If there is police involvement or the involvement of various politicians, this might be sufficient in and of itself to establish the weak State involvement associated with widespread attacks, whereas such involvement by police or politicians would have to be linked to a specific policy of the State to satisfy the more stringent State involvement associated with systematic attacks.  Yet, the Pre-Trial Chamber II Decision seems not to accept the weaker State policy requirement since it appears that evidence supporting this has already been offered by the Prosecutor and acknowledged but rejected as insufficient.

In discussing the issues likely to pre-occupy the PTC judges as they decide how to respond to the Prosecutor’s proprio motu request in Kenya, Lionel Nichols adds a different perspective to this discussion on the state policy requirement for war crimes. In his view, the state policy requirement is linked with the identities of alleged perpetrators. This, he suggests, may be why the judges requested from the Prosecutor a list of alleged perpetrators. He also highlights other issues of concern to PTC judges, including admissibility (whether the truth commission and ongoing discussions about a special tribunal can be seen as constituting complementarity, and whether there is sufficient gravity), and the interests of justice (whether ICC investigations would destabilize the country). Similar to May, he sees the Kenyan case as one that will help illuminate critical sections of the Rome Statute.

Okechukwu Oko’s essay is less concerned with the contribution of ICC cases to the development of international law. Rather, his focus is on the broader contribution of prosecutions – of which the ICC is the most visible form – to what he calls “social equilibrium”. His essay expresses concern about the limits of prosecutions: if root causes of human rights violations include ethnic distrust and economic marginalization of communities, prosecutions do not address these issues. Violence in Africa is “considerably different,” he argues. Violence does not result from “deviant behavior of citizens but from…ethnic distrust…The traditional criminal process fails to address the broad range of ways in which situational cultural pressures exacerbate violence.” He concludes that, with this core difference between Africa and elsewhere, “concerns for accountability offer no license for the international community to arrogate to itself the right to determine what is best for Africa.”

Comfort Ero disagrees with this “African exceptionalism” that Oko outlines. In a critical analysis of the responses of African leaders to calls for accountability, she criticizes their view that Africa has its “own brand of justice that espouses reconciliation over sanctions or punishment.” This is inaccurate, she argues. “It is … discriminatory to claim that African victims do not deserve to seek criminal accountability for serious international crimes with standing equal to that of other victims of grave abuse.” Ero further characterizes the relationship between the ICC and African states as “awkward” and one that must be disaggregated rather than presented as monolithic.  The overall tension she sees is between the need to prevent future Rwandas and the fact that such preventive measures seem to originate externally to African states. In this context, the upcoming ICC Review Conference provides an opportunity to address these tensions.

Valentina Torricelli also sees the review conference as an opportunity for Africa to re-engage with the ICC. In her view, suggestions such as giving the African Court of Justice and Human Rights jurisdiction over international crimes would result in a “huge cost to the African Union, distract the African Court from an effective pursuit of its mandate , and duplicate the work of the ICC”. Instead, she urges Africa to rediscover its earlier enthusiasm for the Court and actively support it. She further warns against other efforts to seek alternative avenues to the Rome system:

The Rome Statute is not perfect. It represents a delicate compromise, balancing many unrelated articles and provisions. However, at this early stage in the ICC’s history, any attempt to make substantive changes would be very risky and could destabilize the architecture designed in Rome. We should therefore reject the recent submission by South Africa on behalf of the AU to amend Article 16 of the Rome Statute in order to allow the UN General Assembly to defer cases for one year when the Security Council had failed to take such decision within a specified deadline. Any proposal of this nature sense must be opposed as it would allow the General Assembly to stand in the way of international justice.

Instead, she suggests, African states should embark on constructive engagements such as using the Review Conference as an opportunity to conduct consultations towards a regional mechanism for extradition and mutual legal assistance for international crimes.

Emmanuel Saffa Abdulai echoes Torricelli that African states should support the ICC, in the spirit of the Constitutive Act of the African Union. He sees African leaders as having reneged on their promises to combat impunity, and in the case of Sudan, “leaders refer to ‘negotiations’ merely to buy themselves time…they hope the ICC net will be broken, and they will thwart its wide sweep that might catch them when they suppress their own people and govern outside the dictates of the rule of law.” If the strongest opposition of African leaders to the ICC is a thinly veiled opposition to the role of the Security Council in international justice, he urges these states to focus on the Ezulwini Consensus, which called for a more representative expansion of the Security Council.  This recommendation that African states focus on Security Council reform starts to touch a problem that will hopefully be addressed in future essays: that the anti-ICC mobilization, to the extent there is one, may be a result of a displaced frustration about the unreformed state of institutions of global governance.[1]

Less optimistic about all these international processes is Andrew Iliff, who addresses the tension between  international justice and local justice through the exploration of a grassroots reconciliation program in Zimbabwe. In a context where the prosecution of Mugabe and other senior officials responsible for human rights violations may not be possible, what are actors to do: hold out for the promise of a perfect justice, or engage in processes to encourage co-existence? His view supports the latter: “transitional justice advocates should bracket international crimes until more propitious circumstances prevail”. Through describing the work of community initiative called ‘Tree of Life’, he suggests that transitional justice advocates should reorient their focus away from state-led processes to other localized measures, lest opportunities for healing be missed.

These essays constitute the beginning of a vibrant debate over the coming months. This forum will welcome multi-disciplinary perspectives that seek to draw attention to opportunities and challenges in addressing human rights violations in Africa, including contributions that may  seek to question whether it is useful at all to single out Africa in this discussion of international justice. We invite you to contribute or comment in accordance to the following guidelines:

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The challenges the ICC is facing in Africa are manifold. First, the operations of the ICC are anchored in ongoing conflicts. Four out of five African situations that have been brought before the Court are engulfed in active insurrections. The DRC has continuously experienced war and desolation since 1996, including a sustained pattern of sexual violence. Uganda’s battle with Joseph Kony’s Lord’s Resistance Army (LRA) was already affecting Sudan and has spilled over into north-western DRC and CAR. The CAR is still in a “no peace no war” situation, with fresh hostilities reported between government forces and the Popular Army for the Restoration of the Republic and Democracy in the north, while also reaping the bitter fruit of the LRA’s violent tactics. And Sudan’s Darfur region is not yet at peace.

Second, such contexts of ongoing conflict complicate the ICC Prosecutor’s work. On the one hand he possesses an irrevocable mandate to carry on with the indictments. On the other, he has to juggle the severe political and social consequences that the exercise of his mandate may cause to vulnerable civilians bearing the brunt of hostilities. Potential consequences may include increased instability and violence. Despite the risks, whether hypothetical or real, the Prosecutor finds himself in situations where national politics influence his “imperium”.

Here, depending on the circumstances, the Prosecutor finds himself subjected to the provisions of Articles 16 and 53 of the Rome Statute. Under Article 16, the United Nations Security Council may seek a one year renewable deferral of investigations, whereas under Article 53, the Prosecutor may assess if an investigation would serve the interests of justice or not. On the basis of Article 16, the situation in Sudan sparked a controversy regarding the Security Council’s role in seeking deferral of the al-Bashir indictment. But that Sudan is not a state party to the Rome Statute, combined with the fact that al-Bashir is a sitting head of state, contributed to heightened  tensions between the African Union (AU) and the ICC. In a rumble of political considerations, the AU called upon its membership to suspend its cooperation with the ICC because it argued that al-Bashir’s indictment would jeopardise peace. Meanwhile, authorities of the DRC are brandishing the possibility of renewed instability in the eastern part of the country if the ICC’s arrest warrant against General Bosco Ntanganda is ever enforced.

Third, the ICC’s work in Africa is at the centre of the peace versus justice controversy. Whether or not ICC prosecutions can fuel or re-ignite a conflict is debatable. Supporters of prosecutions argue that the destabilising effects of the ICC are overstated, and cite the fact that the arrest of Jean Pierre Bemba, former vice-president of the DRC and narrowly defeated candidate in its 2006 presidential elections, did not result in the significant instability that many expected. In Ituri province, followers of Lubanga, Ngudjolo and Katanga did not use the arrest and transfer of their leaders to The Hague as a new casus belli. The fact that the trio was already in custody of the Congolese government when the ICC arrest warrants were issued could be read as an inhibiting factor. However, those sceptical about the positive effects of prosecutions point out that any deterrent effect resulting from the removal of these warlords from their factions is mostly hypothetical rather than real. A new insurgency movement emerged thereafter: the continuation of the Front des Résistants Patriotes de l’Ituri and the creation of a coalition of rebel movements called the Front Populaire pour la Justice au Congo.  In Uganda, together with the changing situation in South Sudan, the indictment of top leaders of the LRA softened the movement’s stances, allowing participation in the Juba negotiations, before hardening once again. Since its refusal to sign the final peace deal brokered in Juba in 2008, the LRA has conducted a terror campaign against populations of north-eastern DRC. The massacre in Doruma in December 2008 was the climax of the LRA’s revived military activities. This debate about the consequences of justice continues.

The final challenge which is rarely discussed is that none of the states referring cases to the ICC have enacted complementarity provisions in their national legislation, in order to demonstrate real commitment to the ICC. In fact only four African countries, Senegal, South Africa, Mali and Kenya, have enacted implementing legislation for the Rome Statute. The creation of an anti-impunity space on the African continent will depend on the number of nations enacting implementing legislation. Those laws are necessary tools to make real judicial cooperation between the ICC and African countries, and between African countries themselves. But most importantly, by turning to the Rome Statute’s standards, implementing countries will be able to hold trials at home, based on international criminal standards required by the Statute.

Implementing legislation can also open spaces for innovative approaches to accountability. In South Africa, civic groups are testing the implementation of the Rome Statute of the International Criminal Court Act, 2002 to bring to account Zimbabwean officials alleged to be responsible for mass torture in Zimbabwe.[1] The South African Act grants jurisdiction for South African courts, in this particular case, if the alleged perpetrator is apprehended on South African territory. This is indeed an illustration of the potential use of limited but useful jurisdiction, stemming from the Rome Statute’s domestication.

Critically, there is also an opportunity for the ICC to play a role in national prosecutorial initiatives based on provisions of the Rome Statute. Depending on circumstances, this role could encompass a review of parameters of compliance and possibly serve as an appeal platform for decisions rendered at the national level. Article 17 of the Rome Statute, dealing with admissibility of a case before the ICC, alludes to such a role. While addressing matters related to the unwillingness of a national system to bring to justice alleged perpetrators, point 2 of Article 17 indicates “…the Court shall consider, having regard to the principle of due process recognized by international law, whether one or more of the following exist as applicable….”  The Rome Statute therefore creates a role for the Court to review national proceedings conducted in application of the Rome Statute or in matters falling under the jurisdiction of the ICC when three conditions are established: shielding justice[2], unjustified delays in triggering proceedings[3], and lack of independence and impartiality in the proceedings.[4]

There is clearly a role for the Court to monitor and review national criminal proceedings handling war crimes, crimes against humanity and genocide. A review of the national proceedings should be the first stage. William Schabas refers to “an assessment of the quality of justice from the standpoint of procedural and perhaps even substantive fairness”.[5]

The DRC’s military courts – which possess exclusive jurisdiction over war crimes, crimes against humanity and genocide[6] – initiated a series of trials in 2006 and 2007, invoking the Rome Statute as the basis of prosecutions. In the absence of ICC implementing legislation, these courts proceeded and rendered verdicts which, in the view of many human rights analysts, lacked elements of fair trial. In addition to these trials, the defunct military structures of the Mouvement pour la Liberation du Congo (MLC) of Jean Pierre Bemba claimed to have conducted trials of elements of its army which committed “crimes of rape, pillaging and murder” by military operations in Mambasa in 2002.[7] The ICC has an opportunity and legal obligation to play an important role in analysing the military courts’ proceedings and decisions. It could issue an opinion on the validity of these trials as well as eventually take appropriate actions. The ICC has the opportunity to set a precedent of removing military jurisdictions for international crimes in the context of the DRC’s stalled process of domesticating the Rome Statute. In the midst of criticisms portraying the ICC as a vehicle for foreign interference in domestic affairs, the Court can demonstrate that it can be useful to criminal proceedings taking place in the DRC as much as those in The Hague.

It is clear that, Africans – most of whom are denied justice in their respective countries – are watching the ICC carefully. Sceptical or enthusiastic, resistant or converted to the cause of international justice, elite or masses, Africans are expecting the ICC to curb endemic manifestations of gross human rights violations. In the meantime, the configurations of the ICC mandate can set important international precedents in terms of fair and impartial trials, victims’ participation and compensation. Those standards are then expected to reverberate in domestic proceedings. The ICC also has an opportunity to set high standards in the collective memory of Africans. In the absence of national initiatives to establish the truth and bring perpetrators to account, the ICC is the only available option currently in existence for most victims. Whichever directions the ICC will take in Africa depend on its ability to rise from poor beginnings, inappropriate and often uninformed criticisms, balance expectations and reality, and to begin to play an important role in the prevention of mass atrocities.

*Olivier Kambala wa Kambala is a former program associate at the International Center for Transitional Justice (ICTJ). These views do not necessarily represent the views of the ICTJ. A version of this article previously appeared on Allafrica.com

[2] Article 17, 2 (a): “…the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;”

[3] Article 17, 2 (b): “…there has been an unjustified delay in the proceedings which in the circumstances is inconsistent witn an intent to bring the person concerned to justice”

[4] Article 17, 2, (c) “…the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”

[5] Schabas, William A., An introduction to the International Criminal Court, Second Edition, Cambridge University Press, 2004, pp. 86-87. This is based on an Interpretation of article 17, 1 (a), (b) and article 17, 2  (a) (b) (c).

[6] Military penal code of November 18, 2002

[7] No.: ICC-01/05-01/08 of 15 January 2010 –Trial Chamber III-Situation in the Central African Republic in the Case of The Prosecutor V. Jean-Pierre BembaGombo, pp.24-26

The necessity of transitional justice in Kenya and the merits of certain institutional mechanisms in particular have been vigorously debated in this forum, as well as within the country itself.  In both of these contexts, the perspectives of victims of past violence have received only modest attention.[1] Of course, their voices hardly rate as the only ones that matter; politicians, officials, activists and scholars are also vital to transitional justice processes, not to mention non-victims in the general population, whose participation as defendants, witnesses and observers is typically required for such processes to prove constructive.  That being said, whether or not victims are satisfied with the approach taken and experience some degree of restoration and healing as a result represent clear benchmarks to measure the acceptability and efficacy of transitional justice measures.

To help understand how victims of the 2007-08 episode of post-election violence and other past political abuses in Kenya view transitional justice and what they might be willing to contribute to its execution, we conducted a series of focus group discussions around the country in the Summer 2009.  The time was ripe for gauging the opinions of victims, since key actors within and outside the country were considering whether to try suspects of post-election violence locally or at the International Criminal Court, while simultaneously Kenya’s Truth, Justice, and Reconciliation Commission (TJRC) moved toward implementation.

We selected areas of Kenya most affected by post-election violence, and an experienced moderator conducted pairs of focus groups using a mixture of Swahili and local languages in seven different locations: Nairobi’s Mathare and Kibera slums; Kitale, Eldoret, Nakuru, and Naivasha in Rift Valley province; and Kisumu in Nyanza province.  In each location, we split the two groups either between men and women or between youths and the middle-aged/elderly.  The locations resulted in groups of mixed ethnicity and political affiliation.  The groups ranged in size from five to 10 participants, with an average of six.  To recruit these individuals, we relied on a network of grassroots-level non-governmental organizations that work with victims in the various locations.  All of the participants had been affected by post-election violence via harm to their own or their family members’ physical well-being and/or damage to their property.

We believe our approach, though limited in scope and lacking a representative random sample, affords certain advantages over a national public opinion survey.  First, we concentrated the research on those most affected by violence and proposed transitional justice mechanisms.  Second, victims are a distinct, small sub-population whose perspectives are difficult to capture—unless the concentration or overall prevalence of violations is very high—via the conventional sampling procedures that are typically employed for public opinion surveys.  Purposefully targeting this sub-population, including by restricting ourselves to select locations, was therefore an efficient approach to highlight an important constituency.  Third, the relatively open format of focus groups enables participants to express their attitudes, beliefs and desires in their own words and thus elicits answers that provide a richer understanding of how they view complex concepts and difficult issues.

The main subjects of the discussions included various aspects of the disputed elections and resulting violence; the current political climate; and relevant dimensions of transitional justice.  Here, we present insights concerning the participants’ attitudes about justice and amnesty; preferences for specific institutional options; views about the ostensible tradeoff between peace and justice; and perspectives on the extent of and potential for reconciliation.  Our hope is that this study, by injecting the vital perspective of victims based on recent original primary empirical research, informs not only the policy debates and institutional processes that are underway in Kenya, but also the public education programs that civil society has initiated to foster transitional justice.

Justice

In principle, a successful transitional justice process is predicated on a shared conception of justice and what specific mechanisms may yield in terms of benefits for victims.  Therefore, the initial question posed to each of the focus groups was: “What does justice mean to you?”  Rather than mentioning abstract notions like fairness, rightness or even legality, the responses generally fell into two broad categories: punishment and compensation.  Both conceptions are fully intuitive and relate directly the concrete consequences of post-election violence.  Lasting fears of living in proximity to perpetrators within communities are common.  In addition, many of the participants were forced to flee their homes and jobs and face continued difficulties in subsisting as a result of injuries and the inability to find employment.  Meanwhile, only a few of the participants linked justice to reconciliation, specifically dialogue and civil engagement.  Thus, the dominant conceptions of justice emphasized official actions to prosecute those responsible for post-election violence, as well as material assistance.

An overwhelming majority of the participants, however, were dubious about prospects of justice actually materializing in Kenya.  This skepticism is unsurprising given the country’s weak judicial system, a political class that is widely perceived to be indifferent to the plight of victims of violence, and past abrogated attempts at investigations, prosecutions and reform.  According to the participants, the main impediment to the implementation of justice is Kenya’s leaders, who are seen as venal, dishonest and likely to manipulate any commissions and tribunals.  An elder in Kitale sums up these feelings best: “Justice is devilish.  I have to bribe to get justice.”  Likewise, a male respondent in Eldoret captured the pessimism about the current state of politics: “It’s hard for Kenyans to get justice with our current crop of leaders.”  A youth participant in Dandora even argued that the current situation is worse than before: “Politics has really gone down.  It is becoming dirtier.”

Amnesty

The amnesty clause in the act establishing the TJRC, which allows perpetrators of certain rights violations to avoid prosecution if they come forward and confess to the Commission, has been controversial.  Public support for amnesty might wane in the face of ICC prosecutions, especially since many of the alleged perpetrators include present or former cabinet members, other members of parliament, local government officials, and prominent business leaders.

Likewise, the focus group participants were rarely inclined to unconditionally forgive and forget the offenses committed by those involved in the post-election violence.  At the same time, the participants drew a sharp distinction between the organizers and the actual perpetrators of the violence, exhibiting a far greater willingness to grant amnesty to the latter rather than the former, albeit with caveats on both fronts.  With respect to the perpetrators, many of the participants suggested a potential willingness to approve of amnesty as long as perpetrators acknowledged their wrongs, confessed in person, and expressed a sincere and meaningful desire for forgiveness. A frequent sentiment was that such steps would provide sufficient closure for individual victims to move on with their lives.  As one man in Eldoret suggested, “the only way for amnesty is for them to acknowledge their wrongs. We can forgive.”

Yet not all of the focus group participants were prepared to feel consoled if perpetrators admit guilt.  Some fervently rejected amnesty, expressing residual anger and resentment that is best summed up by a woman from Nakuru: “They can talk of amnesty, but we, the real victims, cannot forgive.”  Another man in Nakuru echoed the fears of many respondents about amnesty promoting impunity, in making the case for accountability as a means to prevent future violence: “If they [perpetrators] killed and are released, that will motivate others to the same atrocities.  There has to be punishment to deter others.”  Likewise, a male participant in Naivasha argued, “they [perpetrators] should be jailed for life so that they be a lesson to others.”

Institutional Mechanisms

Criminal Prosecution

The discussion of the possibility of trying individuals complicit in the post-election violence generated differing levels of support for three options: the ICC, a special tribunal in Kenya, and a hybrid system involving both international and domestic elements.  At the time, all of these options were receiving serious consideration in policy debates.  Subsequently, the ICC decided to proceed with formal investigations, which are likely to result in indictments of various perpetrators.  While these steps appeared to diminish the prospects for instituting a domestic tribunal, this option is still advocated periodically.

A large majority of the focus group participants preferred to send those involved in the violence—especially the organizers—to The Hague for trial.  The inclination to eschew local accountability, in favor of an international alternative, was based on several factors.  For one, participants commonly expressed confidence in the ICC’s ability to achieve important outcomes.  A young woman in Mathare indicated, “Let The Hague take ten years, but we will know the truth and at the end we will have results.”  A second woman said, “Politics is accompanied with violence.  Hague could change that and impunity will cease.  They will be punished well there.”  Others cited corruption in the Kenyan courts, the ability of politicians and other powerful individuals to subvert the legal process, and the potential for sparking further conflict.  As a woman in Kibera noted, “I think they [perpetrators] should go to The Hague because you might find these politicians may know the judges and even bribe them to have their way.  If they go to The Hague, truth will rule.”  A man from Eldoret agreed: “Local courts don’t have justice. The organizers are rich and therefore they will interfere.  They should go to The Hague so that at least justice will be served.”

A smaller number of participants advocated a process in Kenya.  Some made this case on the basis that the trials would then be more accessible and enable closer observation as well as direct participation.  As one participant from Kisumu stated quite succinctly, “We would like to witness.”  Similarly, an elder in Kitale argued: “I prefer here so that everyone can have their say.  We have to witness in those trials. We can’t all go to The Hague; we will have a more effective trial locally.”  Others reasoned that far more people could be tried locally, whereas relatively few could reasonably taken to The Hague.  Certain participants also worried that conducting trials in The Hague would mean only the organizers of violence would be prosecuted, allowing the actual perpetrators to go free.  The few participants who advocated a hybrid system saw the potential for complementary functions, with organizers being sent to The Hague, while a domestic tribunal would try the perpetrators.

Truth, Justice, and Reconciliation Commission

Meanwhile, the participants’ attitudes about the TJRC were almost universally negative.  Many seemed skeptical of its utility and suggested this process would be a waste of resources that could instead be going directly to victims, if not a further venue of corruption, rather than serving as a useful vehicle for rapprochement.  For example, a male respondent from Nakuru stated: “These commissions are just for making money.  They are just using them for the wrong purposes.”  A young woman in Mathare echoed his sentiments: “That is just scheme to use public money.”  Others indicated that the TJRC would be a political stunt above all else, doubting the extent to which it would engage and be responsive to the victim community.  As one participant noted, the process “won’t be ours,” but rather a top-level political process.  A woman in Eldoret underscored this skepticism by arguing, “That commission is just theirs.  We don’t have any say.  In fact, for anything that happens in Nairobi, we face the repercussions.”  Furthermore, multiple participants referenced a conspicuous history of failures by previous commissions to follow up on formal inquiries and effect change: “Commissions have been formed and are fake.  They never act on their reports” [young woman in Mathare].  “They never implement what they report” [male respondent from Nakuru].

A minority of the participants expressed cautious support for the Commission, but still questioned its fairness, the legitimacy of its leadership and its potential impact.  In addition, the few participants who did say they wanted the commission conditioned their support on the delivery of financial assistance, the creation of jobs or the punishment of offenders.  These stipulations echo the observations we made earlier that victims seem especially interested in substantive outcomes.  A process alone is seen as largely inadequate, not least because victims lack confidence in Kenyan institutions and officials operating with integrity and acting in the public interest, let alone conscientiously addressing the needs of victims.  In fact, the TJRC has commenced operation and begun to hear evidence, but continues to be plagued by the controversy over Chairman Bethuel Kiplagat’s past association with former President Daniel arap Moi’s regime, itself a violator of human rights.

Peace or Justice?

Earlier, we mentioned the participants’ fears that any efforts to prosecute individuals implicated in the post-election violence could incite further violence and threaten the security of populations that have already been victimized—a standard concern in countries that have undergone a transition from a period of conflict.  These anxieties may be based on only the theoretical risk of a backlash, without a clearly quantifiable threat.  That being said, comparative examples of such violence do exist, including instances where victims have been specifically targeted, e.g., the killings of dozens of witnesses in Rwanda’s gacaca proceedings.  Along similar lines, the absence of legislation and institutions to safeguard witnesses in Kenya has recently come to light as the ICC has begun its investigations.

These and other sorts of vulnerabilities and apprehensions presumably contribute to the fact that the focus group participants were split on whether they support legal accountability for those involved in the post-election violence, or peace and stability.  Those in the latter category expressed a desire to co-exist harmoniously and to live free from fear.  A woman in Naivasha advanced this point, making reference to the dire consequences of conflict, “If we had peace then we would not be wearing donated clothes.”  Those desiring justice argued that justice itself is most likely to produce peace and stability in the long run.  One man in Naivasha related the metaphor, “Justice is the table that carries peace.”  Another said likewise, “If you have justice you get everything else.”  A young participant argued, “You must have justice in order to be free.”  Not everyone drew a direct link between justice and peace, but rather some participants observed that peace can be a tenuous state of affairs and mask underlying grievances that implicitly could simmer and hold the potential to become disruptive.  As one woman in Kibera noted, “we are living peacefully yet we live grudgingly because some of us were violated and undermined.”

Interestingly, the participants in each focus group tend to share similar attitudes about this issue, but there were not consistent patterns by gender and location.  For example, the female participants in Kibera wanted justice first and foremost, whereas their male counterparts preferred peace and stability.  In Naivasha, by contrast, the female participants prioritized peace and stability, while the male participants desired legal accountability.  A natural explanation for the intra-group similarities could be participants following the lead of the first one or two peers to speak.  Yet the other questions did not yield this sort of consistency in responses, as might be expected if certain participants in each group were influencing their peers.  In so far as we can rule out that sort of phenomenon, it appears that attitudes concerning the choice between justice and peace and stability are highly contextual in terms of geography and personal traits.

Reconciliation

Definitions of reconciliation varied considerably among the focus group participants.  The most common understandings were forgiveness, acceptance of others, and acknowledgement of wrongs committed.

When asked whether reconciliation was occurring in their area, or in Kenya more generally, virtually all of the participants believed that progress had been modest at best.  They pointed to many pieces of evidence, most notably their continuing fear of returning home, the fact that stolen properties have not yet been returned, and the failure of perpetrators to apologize or be punished for their transgressions.

The participants were equally cynical about the prospect of reconciliation down the road, even questioning the basic readiness of Kenyans to pursue and achieve this outcome.  A Nakuru woman asked, “How can there be reconciliation when I am still feeling the pain for my murdered son?”  This visceral reaction is evidently widespread, with another participant observing that many victims “still feel the pain.”  Some also cited the ongoing presence of perpetrators in their communities and were resistant to the notion that under these circumstances reconciliation could be achieved through policy pronouncements alone.  As a Kitale elder explained, “If you killed my father, [even] if the government says we should live together, I can’t live with you.  I still have anger.”  Others blamed inter-party wrangling within the Coalition government, which was viewed as a persistent problem.  A further source of worry was the strong ethnic elements to the post-election violence, which have not dissipated and were even exacerbated in some areas by the flight of people and the development of enclave communities.

Conclusion

This brief article represents a first installment of insights from victims of post-election violence concerning their preferences about and expectations for transitional justice in Kenya.  The series of 14 focus group discussions we conducted around the country reveal urgent desires for redress of past harms and losses and for fundamental changes in politics and society, so that people can have the basic necessities of life and not face constant fears of renewed conflict.  The focus group participants were supportive of and otherwise open to a variety of transitional justice options, typically with a bottom-line focus on what is required to achieve meaningful and lasting results.  On this count, the strongest sentiment favored compensation to victims as well as prosecution of those responsible for organizing the violence, a task that most preferred to assign to international authorities.  Progress in these respects was viewed as essential for stability and reconciliation.  Yet there was considerable skepticism among the participants that these challenges would be taken up promptly and effectively and have a lasting, positive impact on the lives of victims and peace in Kenya.

* David Backer is an Assistant Professor of Government at the College of William & Mary (Virginia, USA) and a Visiting Fellow of the Kroc Institute for International Peace Studies at the University of Notre Dame (Indiana, USA).

Joseph Lahouchuc recently graduated from the College of William & Mary with a BA in International Relations.

James Long is a PhD candidate in Political Science at the University of California, San Diego (USA) and a Jennings Randolph Peace Scholar at the United States Institute of Peace

Download the Pdf version of this paper here.

[1] Notable exceptions include civil society campaigns and surveys conducted by South Consulting for the Panel of Eminent African Personalities to measure progress on the Kenyan National Accord and Reconciliation Act.  For the findings of the latter, see http://www.dialoguekenya.org.

The text of his presentation is available here: Thabo Mbeki Africa Day Lecture

First among the six steps identified by Mbeki, is to nurture and build Africa’s intellectual cadre, including “to rebuild and sustain our universities and other centres of learning, attract back to Africa the intelligentsia that has migrated to the developed North, build strong links with the intelligentsia in the African Diaspora, and give the space to these the time and space they need to help determine the future of the Africans.” He appeals for the reinvigoration of the African Renaissance Movement, that was prominent a decade ago but which has fallen by the wayside subsequently.

As with material goods, Africa is a primary producer of intellectual resources, and also a consumer of finished intellectual products, but makes little contribution to the value that is added in between. Much (perhaps most) African intellectual production occurs under northern (American and European) contracts. Consequently, Africa’s intellectual agenda is set outside the continent, with African scholars are co-opted as consultants and primary researchers, while the ablest of them are provided with careers in western universities, research institutes and policy institutions. The final product is then re-exported, its value having been multiplied many times over, to Africa for consumption by African people, governments and institutions. The fact that African names appear as authors of these products does not necessarily mean that they are more “African-owned” than a mobile phone containing African coltan is an African product. Meanwhile African leaders have become so estranged from the structures of intellectual production that they overlook the strategic importance of paying for domestic universities and research and hence owning the processes of generating and refining ideas.

Meeting in Libya last August, African heads of state and governance recognized the importance of intellectual leadership to the continent’s peace and security agenda. Paragraph 19 of the Tripoli
Declaration on the Elimination of Conflicts in Africa and the Promotion of Sustainable Peace, reads:

“Making and sustaining peace and security is also an intellectual challenge. We therefore undertake to build the capacity of our universities and research institutes to explore the nature of African conflicts, to investigate what succeeds and what fails in conflict resolution efforts, and to arrive at African-centered solutions, drawing from our own distinctive and unique experience.”

They might have gone further, as Mbeki indicates, to assert that intellectual leadership is a central strategic challenge for Africa. Controlling the intellectual agenda is claiming the future: abdicating that leadership is surrendering the future.

The text of his address is available here: Thabo Mbeki Doha Speech

Yet all too often this root cause of conflict is overlooked, with attention focused on the symptoms of conflict. Nowhere is this more the case than in eastern Democratic Republic of Congo (DRC) where discussions of the conflict tend to focus on its many tangible facets, including the role of minerals in exacerbating conflict; high levels of militarisation; and the chronic use of rape and sexual violence. All of these factors are extremely important and need to be addressed. Yet ultimately, they are symptoms of root causes that are driving the conflict. And if those are not addressed, peace and development cannot take root.

Recent research carried out by the International Refugee Rights Initiative and the Social Science Research Council (Who Belongs Where? Conflict, Displacement, Land and Identity in North Kivu, Democratic Republic of Congo) illuminates some of these root causes. The research among those displaced from the conflict in eastern DRC’s North Kivu province suggests that ongoing violence remains rooted in a lack of clarity over the critical question of citizenship in the region, and specifically over the relationship between national identity and ethnic allegiance. The war is seen as both an external conflict that is being played out on Congolese soil, and one that draws upon pre-existing localised divisions. Both of these aspects relate to disputes over the definition of who legitimately belongs as a citizen in DRC, and are mostly expressed in ethnic terms. The fact that this dispute over citizenship has persisted throughout the recent fighting emphasises the fact that the cyclical forces that drive the conflict have not been broken. It is therefore apparent that the ebb and flow of the war – reduced hostility leading to increased optimism for sustainable peace followed by renewed bouts of fighting – could persist indefinitely unless root causes of conflict are addressed.

So how can ethnicity be accommodated within this highly charged environment? For many of those interviewed the solution to ethnic-based fractures within communities, and therefore to violence, was to construct a Congolese national identity that could over-ride ethnicity. If properly realised, national identity represents political systems working in ethnically neutral ways that would offer genuine protection – an antidote to the ethnic allegiances that are seen to be the cause of conflict and suffering. As a displaced man in Rutshuru said, “This thing could be settled by making us feel that we are one people and are Congolese.”

However, there was something of a paradox at the heart of this discussion: on the one hand there was a strongly anti-ethnic and pro-nationalist emphasis. Yet at the same time it was clear that the basis for national belonging was inextricably tied to ethnicity. While Congolese identity might offer an alternative to violent expressions of ethnicity, in practice the links between Congolese identity and ethnicity are hard to separate and disputes over their relationship is at the root of much of the violence. This paradox is further reflected in a new law on nationality adopted by the country’s transitional government in November 2004. This law is an improvement on previous legislation. It is generally inclusive and offers the possibility of asserting citizenship to most of the contested populations. However, it keeps the philosophy of ethnicity as the basis for national membership alive, ensuring that ethnicity retains its linkages with citizenship – and, therefore, remains a potential source of violence.

In particular, the extent to which groups and individuals have apparently identified along ethnic rather than national lines during the conflict has revealed a level of split allegiance that is considered unacceptable within a strong nationalist discourse on Congolese identity. For instance trans-national ethnic identities – in this context, Hutu and Tutsi – are seen to negate national allegiance and to be the cause of violence that has been exported from Rwanda. In other words, those who show ethnic allegiance that crosses borders are seen as somehow un-Congolese. This subjective interpretation of nationality shows the huge gap between law and the lived reality of citizenship. As a displaced woman living in Masisi said, “there are those we refer to as Banyarwanda. These ones feel they are Congolese, and yet at the same time they have that feeling that they are Rwandan – at least they know that they had an origin from Rwanda. Others even keep going and coming back.” Those who went voluntarily to Rwanda in the aftermath of the 1994 genocide are viewed as particularly suspect: their “return” to Rwanda is seen as evidence that they were never truly Congolese.

However, many interviewees also suggested that Kinyarwanda speakers could be legitimately recognised as Congolese if they renounced their cross-border ethnic ties. In this respect, Congolese identity was seen not only as a potential antidote to violence – an alternative to the destructive articulations along ethnic lines – but as a means for individuals to distance themselves from what is taking place. As one refugee woman living in Uganda said, “this war can only end when the Tutsi agree to stay under the government of Congo and leave tribalism.”

These perceptions reflect the extent to which those living in North Kivu (or displaced from it) see the potential, even if not the reality, of a functioning Congolese national identity – an identity that somehow supersedes the current fragmentation and parochialism that is proving to be so destructive. Yet because the state to which this nationality is supposed to be attached has fundamentally failed, ethnicity remains vulnerable to manipulation. And so the whole cycle of violence begins again.

So what is the way forward? If proper functioning of political power based on a fair understanding of Congolese national identity is, indeed, part of the solution, what does this show us with regard to moving towards this end – however idealistic this outcome might seem? The failure of the Congolese state is a well rehearsed fact. Yet its theoretical value is somehow recognised by those who, in reality, have been a victim of this failure. Somewhat perversely, this offers a degree of hope.

However, citizenship needs to be built on something more substantial than what is, effectively, a weak state – as experienced through partisan power structures and widespread displacement caused by a lack of state protection. Indeed, the challenges currently facing DRC are immense: weak institutions, a demoralised and ill-disciplined army, a cornered militia hiding in impenetrable forest, and hundreds of thousands of civilians displaced and traumatised. In addition to the immediate need to de-militarise the region and restore law and order, long-term stability will only be ensured through state reconstruction at both a local and national level: local power bases must become genuinely democratic and interact with national processes – and vice versa. This will create the context in which citizenship can be de-ethnicised and allow for ethnic identities, and other forms of localised allegiance, to function freely alongside national understandings of belonging.

*Dr. Lucy Hovil is Senior Researcher, Citizenship and Displacement in the Great Lakes region, a joint research and advocacy initiative of the International Refugee Rights Initiative and the Social Science Research Council.

I turn first to jurisprudential matters. Although international criminal law strives to borrow from and legitimate itself via a plurality of legal systems, the fact remains that its basic doctrines are Western in origin. This can cause problems when the jurisprudence has a poor sociological fit with the non-Western societies to which it is applied. Take for instance the doctrine of ‘superior responsibility’, one of the modes of liability under which international criminal suspects are commonly tried. Although the case law on superior responsibility is increasingly sophisticated, and the doctrine has been applied with sensitivity and intelligence by some judges, it remains the case that it evolved in the context of well-drilled Western-style bureaucratic and military organisations, in which it made sense to think that a superior could be held responsible for the actions of his subordinates, no matter how far physically removed (Knoops 2007).

In Africa, however, well-drilled hierarchies of this nature are a rarity. Over the past forty years many African governments, armies and guerilla movements have found it tremendously difficult to create stable organisations, and authority relations tend to be informal and fluid instead (for introductions to a vast literature see Chabal and Daloz 1999; Clapham 1985; Jackson and Rosberg 1982; Médard 1982; Migdal 1988; Murphy 2007). This was certainly the case in Sierra Leone, where authority in at least one of the fighting factions – the Civil Defence Forces – was based on patron-client or neo-patrimonial ties, and was more akin to a ‘militarised social movement’ than a conventional army (Hoffman 2007; Kelsall 2009).

While it is not impossible that superiors in such networks should have the ‘material ability to prevent or punish’ the crimes of their subordinates, as the superior responsibility doctrine demands, it is much less likely than in a Western context. Nevertheless, some international prosecutors have sought, rather unthinkingly, to gain convictions under this doctrine even when the evidence for it was flimsy. This, in my opinion, has led to a waste of time and resources and, in the worst cases, some highly questionable judicial decisions (Kelsall 2009, 71-104).

A related problem, although I lack space to address it here, is that the superior responsibility doctrine as currently conceived is ill-equipped to deal with the exercise of charismatic authority, which is rather more common in Africa than it is in the West (see for example Ellis 1995, 2001; Ellis and ter Haar 2004, 90-113). In Sierra Leone it played a part in the trial of Allieu Kondewa, alleged by the Prosecution to have authority over his subordinates by virtue of the ‘mystical powers’ he possessed, and it is arguable that it would also be significant were Joseph Kony ever brought to trial (Kelsall 2009, 105-145).

The next issue I would like to raise is procedural. Just as most of the jurisprudence used in international criminal trials is Western in origin, so is the procedure. Legal anthropologists have long pointed to the more informal and inquisitorial style of African customary courts as compared with Western ones, especially in adversarial, common law contexts (Gibbs 1963; Gluckman 1964). It is difficult for most of us to imagine how unnerving international trials must be for many African witnesses, who find themselves miles from home, in a courtroom of extraordinary grandeur, confronted with robed judges and lawyers who speak a foreign language, and who subject them to highly unusual communicative practices including frequently hostile cross-examination. It is no wonder that getting clear testimony in such circumstances has often proved difficult (Cryer 2007), a problem compounded in contexts, not uncommon in Africa, where secrecy is prized as a high social ideal, and in which there have developed a repertoire of dissembling rhetorical techniques (Ellis and ter Haar 2004, 70-89; Ferme 2001; Murphy 1980; Shaw 2000).

Things are made worse where local conceptions of space and time are at variance with Western coordinates, as they are in many rural African contexts, such as in Sierra Leone. Existing attempts to put witnesses at ease by concealing their identities, paying them allowances, and proofing them before testifying, create their own problems. In my analysis these communicative troubles, in addition to making trials, slow, laborious, and expensive, can seriously call into question the quality of the evidence on which judicial decisions are based (Kelsall 2009, 171-224).

Finally, I turn to normative issues. While some of the crimes adumbrated under the Rome Statute are doubtless regarded abhorrent by all but the most deviant sub-cultural groups or individuals, the same cannot be said for all of them. The issue here turns on the relation between the international ‘community’ that makes international law – comprised of activists, academics, statesmen and lawyers, at the pinnacle of which are the States Parties themselves – and the less cosmopolitan communities existing on their periphery. Take for instance the crime of enlisting children under a certain age (the age has varied over time) into an armed force. Anthropologists and historians have shown that the very conception of what it is to be a child varies cross-culturally, as do the expectations of what a ‘child’ can legitimately be expected or forced to do (Archard 1993; Boli-Bennett and Meyer 1978; Hoffman 2003; James and James 2005; Rosen 2007). Such appeared to be the case in rural Sierra Leone where, in the case of the Civil Defence Forces, commanders enlisted and communities volunteered young fighters, apparently not knowing that this was a morally or legally wrong act. By prosecuting individuals for this crime, the Special Court arguably held those concerned to an alien standard of justice of which they knew nothing, imposing international norms and law on people, raised in a different culture, with contrasting moral ideas. Rather similar points could be made in respect of the crime of ‘forced marriage’ (Kelsall 2009, 146-170, 243-254).

To conclude, at the same time as the States Parties reflect on some of ICJ’s recent achievements, they might also consider some of its difficulties, including those problems that are not prominent on the agenda but become apparent when we dig deep into international trials. These difficulties concern the appropriateness of international criminal jurisprudence, procedure, and norms to African and other non-Western contexts. Is it within the power of the States Parties to recommend a more sociologically attuned use of the existing jurisprudence? Can they, by addressing the entire ecology of the courtroom, make international criminal procedure as friendly and productive as possible for witnesses unfamiliar with a Western courtroom setting? And can they advise a more sensitive enforcement of those laws which, although regarded as universally abhorrent by the ‘international community’, have yet to penetrate the consciousness of communities on its fringe? In short, is a more genuinely international, multicultural type of justice attainable than the kind we have now?

REFERENCES

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———. 2008. Ritual (Ab)use? Problems with tradtional justice in Northern Uganda. In Courting Conflict? Justice, Peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Archard, David. 1993. Children: Rights and childhood. London and New York: Routledge.

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Clapham, Christopher. 1985. Third World Politics: An introduction. Madison: University of Wisconsin Press.

Cryer, Robert. 2007. A long way from home: witnesses before international criminal tribunals. International Commentary on Evidence 4 (1):1-4.

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———. 2001. Mystical weapons: some evidence from the Liberian war. Journal of Religion in Africa 31 (2):222-236.

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———. 2003. Like beasts in the bush: synonyms of childhood and youth in Sierra Leone. Postcolonial Studies 6 (3):295-308.

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Johnson, Douglas H. 2009. Mamdani’s ’settlers’, ‘natives’, and the War on Terror. African Affairs 108 (433):655-660.
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———. 2007. The powerful presence of the past: historical dimensions of integration and conflict in the Upper Guinea Coast. Conference paper. Max Plancke Institute for Social Anthropology, Halle/Saale, Germany.

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* Tim Kelsall has taught politics at the Universities of Oxford and Newcastle, is a former editor of the journal African Affairs, and is the author of Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press, 2009) (http://www.cambridge.org/9780521767781). He is currently living in Phnom Penh, Cambodia, working freelance as an Associate of the Africa, Power and Politics Programme (http://www.institutions-africa.org/) and as a Visiting Fellow of the War Crimes Studies Center, University of California at Berkeley (http://socrates.berkeley.edu/~warcrime/).

Notwithstanding the general recognition that international law obliges countries to prosecute genocide, crimes against humanity, and war crimes, some diplomats tasked with negotiating peace agreements have argued that the prospect of prosecution by the ICC has made achieving their objectives more difficult.[1] Those negotiating peace have tended to view the possibility of prosecution as a dangerous and unfortunate obstacle to their work. Some fear that merely raising the spectre of prosecution will bring an end to fragile peace talks. The temptation to suspend justice in exchange for promises to end a conflict has already arisen with respect to the ICC’s work in Darfur and Uganda, and threatens to recur in coming years as parties and mediators struggle to negotiate peace deals.

In the short term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. However, Human Rights Watch’s (HRW) research demonstrates that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. Indeed, instead of impeding negotiations or stalling a peaceful transition, remaining firm on the importance of justice — or at least leaving the possibility for justice open, whether meted out by national or international prosecutions — can yield short- and long-term benefits. HRW findings about the relationship between peace and justice are discussed at length in a July 2009 report “Selling Justice Short: Why Accountability Matters for Peace.” While there are many factors that influence the resumption of armed conflict, and we do not assert that impunity is the sole causal factor, a review of HRW experience shows that the impact of justice is too often undervalued when weighing objectives in resolving a conflict.

Case studies in the HRW 2009 report are drawn from 20 years of research in as many countries. The ICC’s reach has understandably been more limited to date. Six years after the court’s operations began, its prosecutor is carrying out investigations in four situations (Uganda; Democratic Republic of Congo; Central African Republic; and Darfur, Sudan) and the ICC’s first trial began in January 2009. The prosecutor’s request to open a fifth investigation—in Kenya—is pending before a pre-trial chamber at the time of  writing.

Thus far, however, the ICC’s engagement in these countries lends support to the themes identified in HRW’s broader review of the impact of national and international justice processes on — and, critically, their absence from — peace processes.  Drawing on the findings of “Selling Justice Short”, we illustrate below three of these themes with examples drawn from the ICC’s experience to date.

First, arrest warrants do not necessarily hinder, and have at times benefited, peace processes through the marginalization of leaders suspected of serious crimes. Justice is an important objective in its own right and this marginalization effect should not motivate the commencement of justice processes. At the same time it has been a side effect of the issuance of arrest warrants in some cases. In the Uganda situation before the ICC, arrest warrants for leaders of the rebel Lord’s Resistance Army (LRA) appear to have played a role in marginalizing the LRA by isolating it from its base of support in Khartoum. This, as well as an interest in seeing the ICC arrest warrants lifted, appears to have increased the LRA’s interest in participating in peace talks held in Juba, Sudan between 2006-2008. While the Juba talks did not ultimately lead to a final peace agreement, interim agreements —including on the issue of justice for crimes committed during the conflict — were successfully concluded over the course of the talks, suggesting that peace processes can be conducted in the shadow of ICC arrest warrants.

Second, foregoing accountability does not always bring hoped-for benefits. In the Democratic Republic of Congo (DRC), the inclusion of alleged perpetrators in government —granting de facto amnesties, including to Bosco Ntaganda, a former rebel commander wanted by the ICC but integrated into the Congolese army in early 2009 — has had far-reaching negative consequences. Successive attempts to buy compliance with post-conflict transition processes by rewarding criminal suspects with positions of power and authority have only allowed these individuals to continue committing crimes or encouraged others to engage in criminal activity in the hope of receiving similar treatment. Far from bringing peace, this has instead allowed lawlessness and human rights violations to persist.

Third, pursuing international justice can have long-term benefits necessary to sustainable peace, including the reinstatement of the rule of law through domestic prosecutions.  ICC investigations in the Central African Republic, for example, have placed pressure on national authorities to take at least nominal steps toward enforcing international humanitarian law. While this has not yet yielded domestic prosecutions, it seems to have at least raised awareness of serious international crimes and the rule of law, which may be the first step toward preventing future crimes. These three themes and examples are dealt with one by one in the paper below.

To read the full paper click here.

* Sara Darehshori is senior counsel and Elizabeth Evenson is counsel in the International Justice Program of Human Rights Watch.

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 through reference 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 through reform 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 northern 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/

There is an ambiguity in article 7 of the ICC’s Statute that is glossed over by the Pre-Trial Chamber II. Article 7(1) states:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against a population…

And then 7(2) states:

For the purpose of paragraph 1:

(a) “Attack directed against a population” means a course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such an attack;

The ambiguity concerns whether the State policy requirement means the same thing for both the condition of “widespreadness” and for “systematicity,” or whether different things are meant. An attack can be widespread without being based in a State or organizational policy, whereas it is very difficult to conceive an attack being systematic that was not based in a State or organizational policy.

For an attack on a population to be widespread it is conceptually sufficient that many people be affected. In the pre-ICC debates about crimes against humanity it seemed that the “or” in “widespread or systematic” could be interpreted to mean that State policy was not required to prove a crime against humanity, since only in a systematic attack on a population was the State policy required, not in widespread attacks. The wording of the ICC Statute takes away that ambiguity. But it is replaced with a concern about what the “or” now means. If the Statute drafters wanted to eliminate the distinction between widespreadness due to State policy and systematicity due to State policy it would have been easy to do by substituting “and” for the “or” that was used in “widespread or systematic”.

The kind of State policy that is widespread but not systematic is not easy to conceptualize, but the language of the Statute as well as the history of how crimes against humanity have been defined calls for such a conceptualization. And this in turn suggests that there could be two different understandings of the requirement of State policy: one for widespread attacks and one for systematic attacks.

It might be that the State policy requirement of crimes against humanity that is associated with widespreadness is considerably easier to meet than that for systematicity. If there is police involvement or the involvement of various politicians, this might be sufficient in and of itself to establish the weak State involvement associated with widespread attacks, whereas such involvement by police or politicians would have to be linked to a specific policy of the State to satisfy the more stringent State involvement associated with systematic attacks. Yet, the Pre-Trial Chamber II Decision seems not to accept the weaker State policy requirement since it appears that evidence supporting this has already been offered by the Prosecutor and acknowledged but rejected as insufficient by the Chamber in paragraph 13 of the Decision.

There is a considerable amount at stake here since State policies do not often manifest themselves in ways other than the behavior of politicians and police. Similar worries can be expressed about this issue as have been expressed about the debate about whether “or” or “and” should occur in the crimes against humanity definition. As I have argued in my book, Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005), it is generally preferable that the attack be shown to be both widespread and systematic, but such a requirement is extremely hard to meet, and so it might be advisable to allow some cases to go forward where only one of the conditions is proven.

It might be thought that this issue can be resolved by looking to Article 17 of the Statute of the ICC that has been interpreted to require an addition element, gravity. On 10 February 2006 the ICC’s Pre-Trial Chamber I issued a Decision on the Prosecutor’s Application for Warrants of Arrest in the Situation in the Democratic Republic of Congo.  Paragraph 51 of that Decision states:

The Chamber considers that the additional gravity threshold provided for in Article 17(1)(d) of the Statute is intended to ensure that the Court initiates cases only against the most senior leaders suspected of being responsible for the crimes within the jurisdiction of the Court allegedly committed in any given situation under investigation.

And paragraph 51 suggests that this heightened gravity standard applies to both systematic and widespread crimes.

Yet, the issue that remains unresolved is whether the State policy requirement is always strong or sometimes weak. The gravity threshold concerns who should be prosecuted not the character of the larger crime that the defendant participated in. State leaders can participate in, and be prosecuted for, crimes that have both a strong and a weak State policy. Gravity seems to go to the type of defendant, not the type of crime.

Regardless of how one comes down on the interpretive questions addressed above, defendants and prosecutors are owed some clarity on exactly what the Pre-Trial Chambers will expect concerning the stringency of the State policy requirement for establishing crimes against humanity.  It remains unclear how to understand the State policy requirement given paragraphs 12 and 13 of the 2010 Pre-Trial Chamber II Decision.

*Larry May is W. Alton Jones Professor of Philosophy, and Professor Law, Vanderbilt University, and Professorial Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt and Australian National Universities.

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