The limits of international criminal justice: Lessons from the Ongwen case

The arrest of Lord’s Resistance Army commander Dominic Ongwen may provide a much needed boost to the International Criminal Court. But it also highlights the complex challenges faced by international criminal justice.

This commentary appeared on openDemocracy on 27 January 2015

(Photo credit: Valérie Arnould)

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The limits of international criminal justice: Lessons from the Ongwen case

The recent capture in the Central African Republic of senior commander Dominic Ongwen, of the Ugandan rebel group Lord’s Resistance Army (LRA), has been heralded as an important boon for the International Criminal Court (ICC). It represents a much needed reversal of fortune for the court after the ICC prosecutor’s decision in December to abandon charges against Kenyan President Uhuru Kenyatta for his alleged role in the 2007 post-election violence. A few days later the prosecutor also announced that she was suspending the investigation into war crimes in the Darfur region due to a lack of resources and inaction by the United Nations Security Council.

These developments have deepened a simmering crisis of legitimacy facing the ICC. In contrast, Ongwen’s arrest seems to give renewed life to the idea that perpetrators of war crimes and crimes against humanity do not lie beyond the reach of international justice.

Uganda’s agreement to have Ongwen tried by the ICC is in particular seen as a positive sign. Although it self-referred the conflict in northern Uganda to the Court in 2003 and hosted the ICC’s Review Conference in 2010, Kampala has become increasingly hostile towards the Court. Ugandan President Yoweri Museveni strongly opposed the Court’s investigations in Kenya and recently called on African states to quit the ICC which he dubbed “the court of the West” and “a vessel for oppressing Africa”. There was widespread speculation over whether Kampala would comply with its international obligation to hand Ongwen over to The Hague. It was expected that Uganda would instead seek to prosecute Ongwen before a Ugandan court or grant him amnesty, as has been the case with other LRA commanders.

The prospect of some form of accountability for the crimes committed by the LRA is encouraging. The Ongwen case nevertheless highlights a number of complex challenges faced by international criminal justice. This does not necessarily mean that the project of international justice should be abandoned, as some are keen to proclaim. But it does underscore the number of hard truths about international criminal justice that need to be confronted.

Delayed justice

The ICC is often criticised for struggling to provide an immediate response to outbreaks of violence and being powerless to stem human rights violations and conflict. The reasons for this are both practical – the court has limited capacity to get involved in all instances of human rights violations and undertake on-the-ground investigations into ongoing conflicts – and political – it is dependent on state cooperation to undertake investigations and obtain the execution of its arrest warrants. Because the court’s hands are tied on so many levels, it can often only progress at a snail’s pace and with fits and starts.

The Ugandan case proves no exception to this as Ongwen’s arrest occurred nearly ten years after the Court first issued its arrest warrant against him. Additionally, even where the Court is able to gain custody of the accused, trial processes tend to take years. For instance, Congolese rebel leader Thomas Lubanga has been in detention at the ICC since 2006 but his trial process was only finalised in 2014.

Consequently, expectations that international justice will act as a first responder to atrocities are unrealistic and even somewhat dishonest. What the Ongwen case demonstrates is that international justice is a long-term process rather than a momentary event. The inability of international justice to act in the immediate might be disappointing and hard to bear for the victims, but it does not have to signal the failure of justice. Justice might be delayed – most often for regrettable political reasons – but that does not mean it will not happen at some later time when circumstances on the ground have gained.

Experiences in other countries underscore the fact that providing accountability and redress for mass human rights violations committed by state and non-state forces during war or authoritarian rule is more akin to a marathon than to a sprint. Chile only experienced progress in the prosecution of perpetrators more than a decade after the end of military rule, while Spain is only now starting to address questions of memory and reparations relating to its Civil War and the Francoist repression. The hard truth is that international justice will nearly always offer a delayed response to atrocities. Evaluations of its success should therefore not be based on how it responds to immediate crises, but whether it has advanced the accountability agenda over the long term.

Frontline justice

Closely tied to the above observation is the question of whether it is useful to mobilise the Court in the midst of conflict. This is a hotly debated topic which does not lend itself to easy answers, yet it has become fundamental in framing views about the legitimacy of the Court. Experience so far suggests that frontline justice might not be the best use that can be made of the Court. There is so far little evidence that interventions by international courts are able to exert an immediate and individual deterrence effect (that incentivise specific perpetrators to end their human rights violations). At most, they will have a general deterrence effect by shifting normative views over the long term. Asking the Court to ‘stop the violence’ thus sets it up for failure and risks fatally undermining confidence in the Court, particularly on the part of victims.

Moreover, intervention in ongoing conflict exposes the Court to excessive politicisation, as it inexorably gets sucked into political wrangling and opens itself up to political manipulation by states. In the Ugandan case, President Museveni mobilised international justice to legitimise his government’s military response to the conflict, divert attention away from the army’s own human rights practices, and to depoliticise the northern conflict. Experiences in Sudan, Kenya and Palestine in turn show how the Court may be used as a bargaining chip in political power plays, either between states or domestic elites. This becomes particularly problematic if international justice is used as a substitute to the pursuit of a political or military solution.

While it is impossible for the Court to completely act outside of politics, there is a need to reflect more on circumstances where too much politics may end up immobilising the Court and serving the interest of neither justice nor peace. The hard truth which thus needs to be confronted is that rather than ending conflict, international justice is at growing risk of becoming an additional terrain on which wars are fought out. While it would be unrealistic to simply state that the Court should therefore never intervene in ongoing conflicts, at the minimum a more critical reflection of the conditions under which this happens is needed.

Simplifying responsibility

Defining responsibilities for wartime atrocities might seem straightforward, but is in fact a complex task. Most often, a wide set of actors commit abuses and all sides to a conflict are responsible for atrocities. As an international court that acts in complement to domestic courts, the ICC is not expected to prosecute every perpetrator but instead focuses on ‘those most responsible’ for mass human rights violations. While this might seem the right thing to do from a moral point of view, in practice it has proven problematic. On occasion, the Court’s interpretation of who is most responsible has been subjective and driven more by logistical and institutional considerations than by realities on the ground.

In Uganda, the ICC has restricted its investigations to LRA crimes on the basis that the crimes committed by the Ugandan army were of a lesser gravity. Such an interpretation of the conflict is highly political and does not necessarily align with who the victims in northern Uganda see as responsible for their suffering. The Court has demonstrated a similar one-sided interpretation of who ‘those most responsible’ are in its investigations in the DRC, the CAR, and most recently Ivory Coast.

The ICC’s reliance on the notion of ‘those most responsible’ does not reflect the realities of modern-day conflicts. The origin of this concept partly lies in widespread beliefs that political instrumentalisation of ethnicity and grievances are the root cause of conflict. While this is sometimes the case, it mostly oversimplifies conflict dynamics, particularly in civil wars. It overlooks the fact that individuals are often driven to engage in armed violence and commit atrocities by a complex mixture of political, economic, ideological, affective and opportunistic reasons. Agency in armed conflicts, and therefore responsibility, is consequently not adequately captured by the notion of ‘those most responsible’. Violence and atrocities are most often the result of a combination of top-down and vertical processes and actors.

Armed actors in modern-day civil wars, particularly in Africa, are often characterised by weak internal command and control. Sometimes units of the same armed group are spread out over large areas and operate relatively independently of each other with limited to no direct communication with the overall leader of the group. In such instances, responsibility does not necessarily or exclusively lie with the top leadership but diffuses downward. The hard truth is that international criminal justice’s legal and normative approach to responsibility may need to be rethought in order to better integrate on-the-ground realities of what drives violence and atrocities.

In the case of Ongwen, an added challenge for the Court is that while he is responsible for mass human rights violations, he is also himself a victim of the conflict as he was abducted by the LRA when he was ten years old. International criminal justice has rarely dealt with situations where the lines between perpetration and victimhood are so blurred. So far, only the prosecutor of the Special Court for Sierra Leone has taken the express decision not to indict child soldiers because of their dual status as victim and perpetrator. Whether the ICC is likely to toe the same line in Ongwen’s case is uncertain, in light of his high profile as a senior LRA commander and the fact that he is tried for crimes which he committed as an adult. Nevertheless, Ongwen’s particular situation raises further challenges to how responsibility for wartime atrocities is understood and dealt with.

Dr. Valerie Arnould is Senior Research Fellow at the Africa Programme at Egmont – the Royal Institute for International Relations in Brussels, where she specialises on security, political and justice dynamics in francophone Africa. She is also a Research Fellow at the School of Law, University of East London.

The copyright of this commentary belongs to the Egmont Institute. It can be quoted or republished freely, as long as the original source is mentioned.?