Nearly twenty years after its formation in 1998, the International Criminal Court (ICC) continues to serve mixed justice to victims of crime not prosecuted by national or domestic courts. The ICC recently heard the case against Dominic Ongwen in relation to seventy counts of war crimes and crimes against humanity, including torture, enslavement and conscription of child soldiers. The specific charges under prosecution were inflicted on internally displaced peoples in Northern Uganda in the Lukodi, Pajule, Odek and Abok camps. Of the 121 witnesses who testified against Ongwen, almost all originated from these areas. Ongwen himself was originally conscripted into the Lord’s Resistance Army (LRA) as a child soldier at the age of ten. At the moment, he is the only senior commander from the LRA to face prosecution in any national or international court. However, recent statements from victims suggest that they felt disenfranchised with the ability of the ICC to provide justice.
Referred to as the ‘global court of last resort’ by Human Rights Watch, the ICC was created under the Rome Statute with the intention of providing greater criminal accountability following the end of the Cold War. Since its formation, all but one of the charges that have been brought to the ICC has related to crimes in Africa. The ICC was first formally asked to pursue charges against the LRA by the President of Uganda in 2003. President Musveni has since described the ICC as useless and marred by ‘western arrogance.’ Victims of the LRA who attended the ICC as witnesses against Ongwen’s crimes have also voiced their bitterness. Part of this frustration comes from victims’ limited ability to select their own legal counsel. In November 2015, the ICC ruled that only counsel appointed by the court was eligible for access to legal aid, sidelining one of the four groups represented at the trial. Moreover, the scope of the proceedings was confined to crimes perpetrated in Uganda, excluding thousands of other victims in areas, such as the Congo and the Central African Republic.
The ICC referral process is structurally flawed from the pre-trial stage. For instance, in order to be ‘referred’ to the ICC for investigation, there must b a consensus from the international community, which in turn hinges on consensus from the five permanent members – China, France, Russia, Britain and the U.S.A. Several proposed investigations that come under the ICC’s jurisdiction were unpursued because they implicated permanent members. For example, investigation of the conflict between Georgia and South Ossetia in 2008 was opposed by Russia and interest in the United States’ invasion of Afghanistan in 2001 was met with resistance from the USA. This implicit protection extends to allies of permanent Security Council members, as evidenced in the Russo-Chinese veto of a referral to investigate war crimes committed in Syria in 2014. The reliance on Security Council consensus renders permanent members and their allies immune to the ICC’s jurisdiction.
While there is extensive rhetoric about the need for greater accountability amongst the international community, few governments are willing to provide the ongoing financial base that this would require. Even some of the ICC’s largest national contributors have insisted that the ICC restrict costs to an amount permitting “zero nominal growth.” For example, US President Donald Trump has registered his intent to slash funding for international programs. As in the experience of Ugandan witnesses testifying against Dominic Ongwen, this reduces both the quality of the victim consultation process and the number of cases pursued by the ICC over time. Despite a running budget of more than $1 billion US, the court has only successfully convicted four people.
Relying on Security Council consensus to facilitate the referral process serves little functional value other than cost mitigation. Rather, it preserves an antiquated distribution of geopolitical power and conflates the notions of law and politics. The referral process inherently undercuts the notion of the rule of law that the ICC supposedly seeks to protect. The almost complete confinement of the ICC’s work to African nations has stirred resentment from African governments and allegation of ‘neo-colonialism.’ The ICC needs to actively widen the geographic scope of the crimes it pursues. Likewise, greater effort can be made to appoint a larger number of Muslim judges to better reconcile the notion of international law with an international cultural value system.
Decentralization of the prosecution process ostensibly counters the founding premise of the ICC. Nevertheless, technical assistance should be offered to domestic bodies navigating juridical nuances in much the same way that the World Bank provides financial aid to developing countries and the IMF bolsters nations with advice during currency crises. Regardless of any of the long-term success carried out by the ICC, greater efforts should be made to empower domestic bodies as they strive to adjudicate crimes.
The ICC plays an important role in international governance by filling the prosecutorial void left by domestic governments whose resources are often otherwise allocated in times of conflict. However, national bodies should make an ongoing contribution to information sharing where conflicts transcend territorial boundaries. This may take the form of logistical support or sponsoring of rewards programs. Until the ICC can rely on sufficient, sustainable funding, information sharing is imperative in ensuring that cases are ‘trial ready’ when governments are ready to hold criminal proceedings.
Early outreach is critical; not only is field presence important in the legal process, but also in contributing to peace-building action. In the thirty years since Dominic Ongwen was first recruited as a child soldier, the LRA has continued to wage war on innocent Ugandan civilians. Many modern-day perpetrators are also former victims. Hence, peaceful and inclusive societies are as much a component of sustainable justice as incarceration.
The ICC must be distinguished from an international police force. Another area for potential reform is the ICC’s reliance on domestic governments and communities to aid in the arrest and capture of criminals. In some cases, government members are complicit in state-run crime, while in others, national officials have promised accused persons in exchange for government impunity.
In some cases, unaffiliated governments have invoked the ‘universal jurisdiction’ principle to prosecute war crimes committed beyond their national territories. A Swedish court recently sentenced a Syrian opposition fighter residing in a Swedish jail to a life sentence for war crimes. Germany, France, Norway, the Netherlands and Switzerland are all actively engaged in investigating similar crimes committed in Syria. As one of the central tenets of the ICC is that justice transcends cartographic boundaries, such nation-led efforts suggest that there is the right international sentiment, if only it can be appropriately channelled.
Ugandan human rights lawyer Nicholas Opiyo stated that the Ongwen prosecution represented a “partial justice” for the victims and that, despite its limitations, the ICC is “the best option for victims of grave human rights violations to attain justice.” Indeed, the ICC need not be tokenistic in its mediation of justice. Pragmatic mechanisms can be instituted to reaffirm the accessibility and consistency of the system as more than just an ultimum remedium or emblem of global governance.