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Imagining Justice Beyond the ICC

[The building of the International Criminal Court in The Hague, Netherlands. Image from Wikimedia Commons.] [The building of the International Criminal Court in The Hague, Netherlands. Image from Wikimedia Commons.]

The International Criminal Court’s acquittal of Congolese militia leader Mathieu Ngudjolo on 18 December did not exactly make headlines in Palestine. Ngudjolo was accused of commanding fighters who raped and hacked to death approximately two hundred people, including children, in a single day in February 2003.

Arguing that witness statements were unreliable, ICC judges determined that the Court did not have sufficient evidence to prove Ngudjolo’s complicity in these crimes. Not surprisingly, the Court’s verdict dealt a massive blow to the aspirations of thousands of Congolese who had rested their hopes for justice in the ICC.

Though it is not often that Palestinian activists look beyond South Africa to other struggles on the continent, the time is ripe to do just that.  Since the UN General Assembly voted overwhelmingly to recognize Palestine as a non-member observer state in November, Palestinian leaders and activists have articulated their determination to pursue a “legal intifada” by joining the ICC in order to seek justice for Israeli crimes.

Although we cannot yet be sure of the various political and legal hurdles that could delay Palestinian membership in this body, an ICC case that seeks to hold Israeli officials accountable for crimes that fall within the Court’s statute, such as war crimes, genocide, crimes against humanity, and the crime of aggression, would be of immense historic and symbolic significance.  

Yet the Ngudjolo acquittal—and the track record of the Court in general—serves as an important reminder not to invest too much hope in the ICC as a source of justice.

Indeed, the Court’s ongoing cases in Uganda, Sudan, and Kenya reveal a consistent susceptibility to geopolitical interests and local power plays, dynamics that would undoubtedly shape a case against Israel, and which call into question the utility of the ICC as a legal or political weapon. 

Every one of the Court’s indictments since it began its work in 2002 has been against individuals on the African continent. Critics have accused the Court of pursuing only the weakest players on the geopolitical spectrum, in part the consequence of the most powerful refusing to join. Relatedly, they point to the power politics at play in ongoing cases that raise doubts about its supposed impartiality and independence.     

Less discussed are the challenges and contradictions raised by the Court’s lack of enforcement powers: namely, who it relies upon to apprehend suspects, and what accountability mechanisms, if any, are in place to prevent further bloodshed in the name of enforcing “justice.”

From the protection of victims and witnesses to the apprehension of suspects, the ICC’s operational reliance on powerful states ensures that individuals from those states will largely escape scrutiny, and that the Court’s decisions are often far removed from the very people it was designed to protect.

Perhaps the most dangerous implication of this dependency on “cooperating” states is the potential for manipulation in the service of entirely different objectives. Some analysts draw a parallel between the ICC and the “responsibility to protect” (R2P) doctrine, noting that while both projects claim to challenge impunity in the name of peace and justice, the reliance on powerful states to implement their agendas can turn victims into proxies for military intervention.

The kind of justice that the ICC is in the business of “delivering” is therefore increasingly in question. 

The Court’s cases in Uganda, Sudan, and Kenya have variously encountered these challenges and criticisms. The complexity of each case warrants greater consideration than I provide here, and demands attention not only to the ICC’s relationship to structures of power but also to those of the individuals it seeks to hold accountable, many of whom may use their positions of power to escape trial.

The ICC launched its first case in 2004, investigating the rebel Lord’s Resistance Army (LRA) in Uganda. Despite widespread documentation of the Ugandan government’s domestic crimes—perhaps the most damning being the military’s forced displacement of hundreds of thousands of people into camps that rendered them vulnerable to LRA abuses—the Prosecutor decided to investigate only the LRA.

While the rebel movement’s powers have drastically dwindled over the years, President Museveni has successfully used the ICC indictment against LRA leaders to expand his military capabilities, and to suppress all forms of political dissent.

Thanks to support and guidance from the US Africa Command, the Ugandan military is now a “partner” in the Court’s efforts to apprehend LRA leader Joseph Kony, who allegedly moves between eastern Congo, the Central African Republic, and South Sudan. 

This is not a recipe for the restoration of the rule of law, but for long-term military occupation of a region that has already been subject to Ugandan government-sponsored violence.  The US military has been all too happy to point to the ICC’s arrest warrant for Kony as the basis for sending special operations forces to the region.

The Court’s indictment of Sudanese president Omar Al-Bashir four years later was the first against a sitting head of state.  Because Sudan is not a member of the ICC, the UN Security Council compelled the Court to initiate investigations by issuing a referral in Resolution 1593. 

The involvement of the Council triggered widespread debate about the selectivity and double standards of permanent Security Council members who refuse to subject themselves to the Court’s authority.  Without disputing Bashir’s complicity in grave crimes, some interpreted the referral as a witch-hunt led by Western powers determined to replace Bashir with a leader more amenable to their economic interests.

A 2010 Wikileaks file revealed the former ICC Prosecutor’s proclivity to use geo-politics to his advantage: in an effort to win China’s support for the case against Bashir, Prosecutor Moreno Ocampo suggested that the Americans reassure China that its access to oil would not be jeopardized if Bashir were “removed” from power.

Ultimately, the Prosecutor seemed more concerned with serving the interests of external players than with the Sudanese themselves, as many accused him of disregarding the indictment’s potential impact on domestic and regional peace-making efforts.

The Court has also been susceptible to political maneuvering in Kenya, where it launched investigations in 2010 against individuals responsible for the 2007/2008 post-election violence. British lawyer Courtenay Griffiths has accused his government of meddling in the case against presidential aspirant Uhuru Kenyatta in a deliberate attempt to ensure that British favorite Raila Odinga wins the country’s top seat in 2013. Griffiths claims that in this case, the ICC “outsourced evidence-gathering to local intermediaries” who “happened to be well known associates” of “Mr. Kenyatta’s long-term political opponent,” Odinga.

Kenyatta, however, is not without his own political machinery. He and presidential aspirant William Ruto, also indicted by the Court, have drawn on their own political networks to push for the postponement of their respective trials in the hopes that victory at the polls might offer them immunity. Both have built considerable momentum for their campaigns on the grounds that the Court is meddling in domestic affairs. In the meantime, ICC officials have expressed concerns over the intimidation of witnesses, whose protection seems to depend more on the goodwill of “cooperating” states like the US and UK.

Each of the African cases, among them Cote d’Ivoire, Central African Republic, Democratic Republic of Congo, and Libya, is worthy of study as Palestinians weigh their options about possible avenues of justice.  

An ICC case could certainly bring further international condemnation of Israeli leaders for their crimes, and for this reason, would be of symbolic value.  But the pursuit of justice against top Israeli officials is likely to test the limits of international solidarity, particularly when it comes to advocacy efforts and the protection of victims and witnesses.

Furthermore, it is not entirely inconceivable that Palestinian membership in the ICC would open the door for the prosecution of Palestinians. While this should not be a reason to avoid joining the Court, the Ugandan situation is a painful reminder that the apprehension of suspects could serve as a basis for a military operation by external “cooperating” powers, Israeli or otherwise.  

Were a case against Israeli officials to proceed as far as trial, an acquittal like that in the case of Congo’s Ngudjolo would be a slap in the face to the victims and witnesses who invest their energies, at great personal risk, in the hopes of a guilty verdict. For this reason, it is worth considering what it would mean to rely on the Court to confirm or deny the validity of Palestinian suffering. Would “justice” as defined by the ICC ultimately be a source of meaningful redress for Palestinians, and would it sufficiently shed light on the broader structures of political and economic oppression that hold Israeli apartheid intact?

The ICC and its more prominent supporters, much like proponents of the “responsibility to protect,” generally lead us to believe that the Court is the answer to impunity, as though the law were divorced from politics, and as though “peace” and “justice” can simply be delivered at the push of a button.

Yet the ICC is an institution located within a larger architecture of power that endows some crimes and some victims with legitimacy, and not others. At the same time, its “responsibility to punish” is subject to political manipulation that allows for further exception and impunity, most recently observed in the case of the Security Council referral on Libya.

The extent to which the Court is or ever can be a counter-hegemonic project therefore requires careful consideration, demanding questions rather than answers. Perhaps the time has come to engage with our allies on the African continent about the possibilities and limitations of this institution to contribute to our collective struggles, and to grapple critically with how we conceive of justice itself.

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