The Icc`s Effectiveness At Affecting Justice: The African Example

The ICC's Effectiveness at Affecting Justice: the African Example

"Peace is not the absence of war it is the presence of justice." -Henry Ford

"To guarantee lasting respect for and the enforcement of international justice, ensuring the most serious crimes of concern to the international community as a whole must not go unpunished . to contribute to the prevention of such crimes" - The Rome Statute Introduction It's contentious whether the International Criminal Court (ICC) contributes to the generation of comprehensive, fully encompassing global law or if it acts as a global body that can oversee, monitor and effectively hold accountable all world states -regardless of social policy, infrastructure or geography (1). Questions have even been raised over the efficiency of international rule for its effective contribution to transitional Justice (1). Moreover the success of ICC cases, particularly in Africa, has been debatable (2). Using the current Kenyan trial for violence occurring post 2007 elections and the recent case brought against the Lord's Resistance Army (LRA), this essay argues that the ICC stands to contradict its purpose and risks exacerbating conditions which breed instability rather than peace if it doesn't first consider justice at a local level. Purpose of the ICC The ICC can understand its function in the same manner as a national court; retribution for wrongdoing, general deterrence, incapacitation and rehabilitation (2). However, the ICC (and International justice overall) seems to hold more ambitious goals including its determination to act as a venue for victims to voice international crimes and to propagate human rights values (3). The Courts have also expressed their aspiration to make advances in international criminal law and to achieve objectives related to peace and security -objectives that some would argue are in the domain of other bodies (5). Whether such large goals can indeed be affected through the successful execution of cases in the ICC is debatable. The Security Council Resolution 1674 (7), adopted on 28 April 2006, reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document that discusses the responsibility to protect populations from serious, destructive crimes against humanity (8). Furthermore, the Security Council commits to making important contributions to structural and operational prevention of genocide, war, crimes, ethnic cleansing, and crimes against humanity (pillar two of the responsibility to protect). It is based on this mandate that the ICC was created (7). Considering the above, it is clear the fundamental purpose of the ICC is to prevent future crimes and specifically those which usually occur during war. Furthermore, if we consider the Rome Stature upon which the ICC is structured, the ICC is mandated to "bring to justice the most serious crimes to the international community because such grave crimes threaten peace and security" (6). The ICC is "determined to end impunity for the perpetrators" and therefore prevent such crimes (6).

Although the motive and objectives are admirable it is important to ask how the ICC can work effectively within its jurisdiction to achieve its purpose. It is here the first challenge arises, although the Security Council's mandate is to ensure protection of global populations, there is an underlying assumption that this is possible through incriminating individuals which represent the perpetrators of these crimes, partly using conviction and punishment as a deterrent (9). Concern arises when one considers the implicit assumption that the trial of war crimes will ensure their prevention (9). Although this may be considered true as a general rule that validates the modern justice system, a slightly different approach is needed considering the nature of the crimes tried in the ICC and when one considers the UN Security Council's overarching mandate to prevent war crimes. It is widely accepted that increased political, social and economic stability at a local level reduces serious crime (11). Moreover, extensive research in the development field has identified that the structural conditions preventing violent conflict and mass crime are; the promotion of wellbeing and the development and participation of all individuals in a community, as well as a need to foster democracy and equitable socioeconomic development (10). Assuming a bottom-up approach, the extent of a region's stability is therefore dependent on the political, social and economic stability of the countries comprising it and hence international stability is dependent not only on strong international relations but also the opinion and state of local populations. Therefore, in order to fulfill its goals the ICC needs to ensure its actions at a local level contribute towards the above criteria. There is no more of a clear example of the importance of justice at a local level than the current ICC case against four Kenyan public figures, for their involvement in the violent atrocities which swept Kenya post the 2007 Presidential election. On the 23rd of January, this year, the ICC confirmed that members from two rival Kenyan tribes; the Kikuyu and Kalenjin, will stand trial in The Hague (12). Despite the fact that 60% of Kenyans seem to be satisfied with the ICC's decision (13), Senior Kenyan Politicians such as Vice President Kalonzo Musyoka (one of the many politicians allied to some of the accused) openly expressed dissatisfaction with the Court's ruling, citing it as detrimental to Kenya's image. President Mwai Kibaki, who originally supported the ICC's involvement, has also instructed the creation of a legal team capable of advising the government on its options. Regardless of the extent of suspicion that arises from the Kenyan Governments involvement in charges brought against the accused in their individuals capacities (12), if the progress of this court affects the socioeconomic dynamics of the local population, influences the Governments behavior towards local people or impacts the development of democracy (the effect this case will have on the upcoming general elections is unknown), the ICC's presence in Kenya could be counterproductive. Notably, the trial of specific tribes may result in aggression in normal society. Ipsos Synovate found that 60 percent of Kenyans were satisfied with the judges' ruling, largely because they believe justice will be done (14). However, this doesn't necessarily consider current Kenyan culture and tribal allegiance. It's been suggested that Jomo Kenyatta's (debatably the founding father of Kenya) personal standing was the source of Kenya's apparent political stability during the 1970's (15). Given the fact his son (who also plans to run in the forthcoming Presidential election) is one of the ICC's accused, the political sensitivity and the affection of the local population need to be considered. A recent article by Reuters suggests that Tribal allegiance among constituents could result in inter-tribal division rather than unity (16). One Nairobi citizen said, "I feel sympathy for him [Kenyatta] because of the charges he faces and will vote for him again. We Kikuyu are loyal to our own," Depending on the attention paid to the ICC trials by Kenyan voters, their outcome could prove divisive in effects, resulting in ethnic tensions -a factor well known among development experts as a cause of political and social instability when only limited resources are available (17). The current ICC Prosecutors would do well to learn from the mistakes made during the 2005 LRA case and consider such cultural nuances. The protests against the ICC's involvement not only came from the accused and the Ugandan Government but also from the Ugandan community who had suffered in the midst of the conflict (14). Local Ugandans believed that the ICC's identification of a handful of individuals was not conducive to peace talks, which lead to further civil unrest at a local level (18). It's believed they didn't understand the purpose of the ICC (this could largely be due to the fact it was the ICC's first trial) or how they would benefit (20). Those who initially expressed support for the intervention believed the ICC had the capacity to arrest members of the LRA (21). However, despite the issuance of arrest warrants for 5 LRA leaders (21), the Courts were unable to take any action. They were dependent on the co-operation of local governments, who showed considerable lack of support, thought to be due to their own involvement with accused parties (22).

One of the main arguments against the ICC's approach refers to the refusal of the ICC to drop charges after the initiation of the Juba Talks in 2006 (23). Indeed, the ICC indictments were a major impediment to achieving peace- the LRA?s leader, Joseph Kony, refused to agree to a peace deal unless the ICC prosecutors dropped the case (24). It is not only those accused of War crimes that believed the ICC's involvement was unproductive. Indeed, several sources suggest the ICC undermined the many years of work local humanitarian bodies had undertaken to bring peace in the region (18). This failure of the ICC is not only related to misunderstanding the local bodies' involvement in the peace process but also a fundamental tension between the goals of justice and peace (24). Better on the ground understanding, as well as flexibility and transparency with a victim focus would have helped steer the ICC's decisions towards the interests of peace (24), without pitting on the ground activists who (on the basis of many years of ongoing interaction with the many stakeholders in the conflict) argued that peace should always come first, and justice later (23).

In the case of Uganda and the current Kenyan trial, the ICC would have been wise to fully engage with local expertise, understand the individual sensitivities and political dynamics (nationally and internationally). If the ICC wants to act as a deterrent to future serious crime, those crimes which are committed usually in war, it must ensure its actions help bring peace through the development of local society. If this is a task too great for the ICC then it must look towards other multilateral bodies to support it. Above all else, justice must be sought at the local level and must have the endorsement of national citizens, not only because they are the direct victims of such atrocities but because they are most likely to understand what will bring sustainable peace in their environment. If justice and peace are not obtained at a local level, regardless of whether justice is served from an International perspective, there will be the absence of peace.

Conclusion Henry Ford may have defined Peace through the presence of Justice but in the ICC's case, at least, they may not be intrinsically linked. It's clear in the example of both Kenya and Uganda that if justice is sought at an International level it must contribute to the development of peace at a national level too. Although, no one can predict the affect of the ICC's presence or rulings on African stability, at a minimum, the impact of the courts decisions should be considered from the outset. Granted, it is not easy to identify the methodology the ICC should use to determine its impact in each locality (regionally or nationally). However, there is one question that should be asked before the undertaking of any case: for whom are we seeking justice and why? Justice may not please everyone but if it is to contribute to the prevention of war crimes it should ensure it does minimal damage to the local people; those who were witness to and experienced the atrocities for which the accused stand trial. It is this approach that should be the principal starting point for the ICC. War fosters the crimes the ICC seeks to prevent and therefore the Courts should ensure they are contributing to peace where the atrocities in question occurred. War is not the absence of justice it is the absence of peace References 1. D. Ðukic´ - Transitional justice and the International Criminal Court - in ??the interests of justice''? Sept 2007, International Review of the Red Cross 2. Whither Justice? -Uganda and Five Years of the International Criminal Court, Drexler , American Students 3. What is the point of International Criminal Justice: Mirjan R Damska, Yale Law School Legal Scholarship Repositary, 2008. 4. Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals 284 (2000) 5. Peace with justice?: war crimes and accountability in the former Yugoslavia By Paul R. Williams, Michael P. Scharf 6. ^ a b c Article 5 of the Rome Statute. http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm 7. The UN Security Council and the Responsibility to Protect Policy, Process, and Practice, 2010, 39th IPI VIenna SemIna 8. ^ a b c Article 5 of the Rome Statute. http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm 9. Peace with justice?: war crimes and accountability in the former Yugoslavia By Paul R. Williams, Michael P. Scharf 10. Summary Report, UNITAR Peace and Security Series: Preventing Genocide, 2007 11. http://aic.gov.au/documents/F/8/2/%7BF82488C4-AFE6-4163-B3F5 F1066D7733B7%7Dti160.pdf 12. http://www.bbc.co.uk/news/world-africa-16675268 13. http://www.icckenya.org/2012/02/majority-of-kenyans-happy-with-icc-judges-decisions-saying-justice-will-be-done 14. http://www.icckenya.org/2012/02/majority-of-kenyans-happy-with-icc-judges-decisions-saying-justice-will-be-done 15. http://www.jstor.org/pss/7218366 16. http://www.reuters.com/article/2012/02/15/us-kenya-kenyatta-idUSTRE81E1M4201202155 17. http://www.refugee-rights.org/Assets/PDFs/2012/PoisonChaliceFINAL1.pdf 18. http://www.peace-justice-conference.info/download/WS-2-Expert%20Paper-Okello.pdf 19. (Adam Branch, ?International Justice, Local Injustice: The International Criminal Court in Northern Uganda,? Dissent (Summer 2004) (available at http://www.dissentmagazine.org/menutest/articles/su04/branch.htm 20. http://www.refugee-rights.org/Assets/PDFs/2012/PoisonChaliceFINAL1.pdf 21. http://news.bbc.co.uk/2/hi/africa/4317852.stm 22. http://www.icccpi.int/menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/network%20with%20partners/public%20hearings/second%20public%20hearing/session%204/mr_%20suliman%20baldo%20from%20international%20crisis%20group?lan=fr-FR 23. LRA rebels arrive for Sudan talks, BBC News, 8 June 2006 Nick Grono and Adam O?Brien, Justice in Conflict? 24. The ICC and Peace Processes, in Nicholas Waddell and Phil Clark (eds.), Courting Conflict?: Justice, Peace and the ICC in Africa, Royal African Society, 13, 16 (2008)