From the Editors
Last week, four staffers of the International Criminal Court (the ICC) who were part of Seif Gaddafi’s legal defense team were taken into custody in Libya on allegations that they were functioning as a conduit for conspiracy between Gaddafi and his political allies. The ICC is now plunged into a messy battle seeking release of its staff while moving forward with the Seif case in ways that strain for legitimacy within Libya.
The local Zintan council leadership responsible for the detention of the legal team, and the Libyan government’s handling of the incident, may be motivated by a range of different agendas. However, it is clear that if there is no speedy resolution, this episode will have repercussions for the ICC’s ability to function globally. The Seif Gaddafi case is complicated by the fact that, for the first time, the ICC is going forward with a case despite the fact that the national government is keen to perform its own trial—a situation that invites debate about the court’s claim that it complements rather than displaces the local justice system.
The high stakes that attend the ICC’s role in Libya provides an important opportunity to reflect on the work of the ICC on the eve of its tenth anniversary. Its founding treaty, the Rome Statute, came into force on 1 July 2002. Many in the human rights community heralded the court’s entry onto the international stage as a new dawn for international justice; the ICC was celebrated as a politically independent body that would speak truth to power and pursue accountability for the world’s most vulnerable populations. Undoubtedly there are many contexts where the mere existence of the ICC and the prospect of prosecutions provide leverage for progressive groups against authoritarian governments. Yet rather than convert the tenth anniversary into a celebration, the ICC’s work over the last decade raises many questions that warrant treating this anniversary as a moment for critical assessment of troubling dimensions of the court’s record.
Coming onto the international stage in the aftermath of 9/11, the ICC has hewed to a path that has become deeply allied with the Security Council. The Rome Statute embeds the ICC in a legal structure where the Security Council can refer non-signatory countries (as it did in the case of Libya and Sudan) to the ICC even though three of the five Security Council members have not signed (China) or have unsigned (US) or have not ratified (Russia) the treaty. The ICC has done little to distance itself from the Security Council’s agenda; rather, it seems to have felt empowered by its resulting prominence in world affairs and has been enthusiastic about acting on these referrals.
Concentrating on Africa
All seven countries where the ICC has issued indictments are in Africa: Uganda, the Democratic Republic of Congo (DRC), Kenya, the Central African Republic (CAR), Libya, Côte d'Ivoire and Sudan (with a focus on Darfur). The ICC’s travels through Africa have been spectacularly impervious to political analysis of specific contexts. In Darfur, the court’s indictments and the manner in which they were issued have been widely condemned for not attending to ground realities, dismissing the strategy calls of local actors, exacerbating the crisis and jeopardizing humanitarian workers. Moreover, the ICC’s decision to bring “genocide” charges have been condemned as legally unconvincing and politically unwise; a distraction from one of the “root causes” of conflict – namely, the land strife catalyzed by the impact of climate change on a shrinking area of arable land (see Mamdani 2009).
In Uganda, the court’s actions have buttressed the political and military interests of the Museveni government. Indeed, much of the condemnation earned by the Kony2012 video may be applicable to the ICC’s actions in Uganda. In the DRC, the court has been condemned for its handling of witnesses and evidence; in fact, the court’s violations of due process were so egregious that at various points in the trial of Thomas Lubanga Syilo, the case was at risk for being dismissed as a mistrial. In issuing their verdict in the trial of the DRC’s Thomas Lubanga Syilo, the judges found Lubanga guilty on 14 counts but also strongly censured the prosecutor for his handling of evidence with suggestion that there may have been criminal mishandling and manipulation of witnesses in the case. The ICC asserted jurisdictional supremacy in Libya on the argument that domestic courts did not have the institutional capacity to give Seif Gaddafi an unbiased trial, yet the ICC’s own conduct in the Lubanga trial is not cause for comfort.
Inactions and Blind Spots
In many ways the court’s inaction speaks even louder than its action. From Iraq to Chechnya, Security Council members have been responsible for atrocities that have been protected from ICC scrutiny through a range of legal and political shields. The court has refused to recognize Palestine as a state for the purposes of the ICC, despite the Palestinian Authority’s application accepting ICC jurisdiction. In those countries where the ICC has initiated cases, it did not pursue accountability of external actors. For instance, there are no cases against decision makers in multinational companies who pursued predatory mineral extraction industries that have fuelled wars in place like the DRC. Similarly, there are no cases against responsible actors inSecurity Council member countries whose own political, military and economic agendas have continued to fuel the militarization of many of the countries with ICC cases in a number of ways, including through primary responsibility for the manufacture and trade of arms used in these conflicts.
Moreover, while there has been a focus on war crimes and genocide, there has been little attention to economic policies that have resulted in massive suffering. Concomitantly, while there has been attention to the development of international criminal law and policy in relation to atrocities on the battlefield, there has been little attention to atrocities in the terms of trade and aid. The arithmetic of contained calculations about accountability in relation to a restricted set of issues and culpability trails, can contribute to exculpatory logics entrenching impunity on a larger scale. The ICC is often presented as an institution safeguarding the international community’s moral center by combating the impunity of warlords and tyrants. Yet, the various markers of points of inaction noted here also map a different kind of “impunity trail.”
This “impunity trail” is partly contingent on the political tilt of ICC prosecutorial policy at any given point. More significantly, we can track the impunity trail to the mandate constraints imposed by the legal architecture of the Rome Statute and the enabling conditions of the ICC’s role in the dominant currents of global governance. Arguably, it is an impunity trail that is sedimented into the normative common sense of ICC advocates who evacuate politics in the name of law and morality. Often it seems that the ICC activates a legal machinery that produces achievements that have little impact on structural dimensions of world order, while we take our eyes off laws and policies that have massive consequences.
The ICC responds to and channels our urge to act, even if the action itself has little transformative impact on the terrain for justice struggles. Indeed, as with its actions in relation to the Security Council and NATO in Libya, its function may be to further entrench and legitimate key elements of the dominant structure. In the spring of 2011, the ICC flew into Libya on the wings of the NATO bombers, inextricably latching itself to military interventions on the one hand, and lending legitimacy to NATO actions on the other. The Security Council referred the Libyan situation to the ICC on 26 February 2011, and passed Resolution 1973 authorizing military intervention on 19 March. The very next month, on 27 June, the ICC issued indictments against Muammar Gaddafi, Seif Gaddafi and Abdulla Senussi.
NATO’s intervention appears to have included two related goals: regime change and securing of the oil fields. Pursuit of these goals entailed aerial bombing caused extensive civilian casualties in the name of civilian protection. In this context, the ICC indictments were beneficial to the Security Council and NATO to the extent that they framed the role of the international community as advancing victim interests and narrowed the accountability questions to the responsibilities of the Gaddafi regime. It was not beneficial to Libyan civilian casualties of NATO and it was not beneficial to those interested in a deeper and broader accountability conversation in Libya. Arguably, it was also not beneficial for the ICC’s own long-term legitimacy in Libya.
These complex tentacles from last spring began to lay the groundwork for the ICC’s current crisis in Libya. More globally these tentacles pry open a window into the crisis that attends approaches to justice and impunity that are predicated on the International Criminal Court as the engine for redemption.
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