Mark Kersten has a very interesting post up over at his blog Justice in Conflict, titled “Why the ICC Should Think Twice before Investigating Conflicts with Roots Before 2002.” In it, he reflects on the temporal limits of the International Criminal Court’s jurisdiction, and more specifically on the consequences of the ICC’s involvement in conflicts that pre-existed the 2002 limit, such as Uganda (the conflict between the Ugandan government and the LRA dating back to 1986). Here’s a teaser:
There are two fundamental dangers which the Court faces when it investigates situations with the life-span and dynamics such as the conflict in northern Uganda.
First, the Court will have incredible difficulties in contributing to peace in such contexts. For meaningful and lasting peace to be established and maintained, both the causes and the dynamics of conflict must be resolved. But by focusing on only a slither of the life-span of a conflict, the ICC acts to readjust how the international community understands, frames, and ultimately attempts to resolve the war. Roots causes and key moments when altered dynamics are ignored because they occurred prior to 2002.
The second, and more obvious, danger that the ICC faces is one of selectivity. By virtue of being bound to its temporal jurisdiction, in Uganda the Court could not investigate allegations of the gravest of crimes committed by the UPDF which occurred prior to 2002. As noted above, the people of northern Uganda see this as tilted and biased justice. It has been said many times that it is not sufficient for justice to be done; it must be seen to be done. If the Court is seen to be biased it hurts its own cause and mandate.
These are very interesting points, and I would be very interested in reading more about this problematic I had not encountered or thought of before. Two thoughts occur to me:
- First of all, although the Ugandan case in terms of time-span is relatively rare, and that as Mark notes the temporal jurisdiction is not problematic in most situations, it could be difficult in certain (for now theoretical) cases to date precisely the beginning of a conflict and establish clearly whether it started prior or after the 2002 limit. The Ugandan situation is an obvious case in point (the conflict has effectively been ongoing), but other situations could very well be less clear, although it’s to be expected that as the Court’s existence lasts, the 2002 limit will become less and less of a problem.
- More concretely, in the case of Uganda, as Uganda self-referred itself to the ICC and that this was one of the ICC’s first case (and the LRA being a notorious organization, it was quite a case), I find it difficult to imagine the ICC turning it down for the reasons Mark has raised. Impartiality is the biggest issue for an international court, or any court of law for that matter, who wishes to establish its credibility and legitimacy, and I understand Mark’s point on impartiality regarding Uganda. But refusing to intervene in an ongoing conflict in which crimes are being committed because the conflict preexists the Court’s existence seems to be an even worst solution than intervening.
All in all, it begs the question: is partial justice better or worst than no justice at all?
The question is complex on many levels and open to debate. As far as I’m concerned, I prefer partial justice, with the hope of setting precedents on which to build a more universal and impartial justice in the near future. But I could be dead wrong.
On another note, readers will no doubt have noticed that the blog has been very quiet for the past, oh, at least two months. I apologize for this, especially that it came without warning. I am currently working outside the field of international law (rest assured, this is only temporary), making it more difficult for me to blog on such issues on a regular basis and hopefully in an insightful manner.
Therefore, the blog will remain in hiatus for the summer until I can get back to it more seriously. I will be back though, without a doubt.
2 Comments
Xavier-
Thanks for this good response to Mark’s post. I appreciate the contributions you made and would add the following:
To follow your train of thought along the lines of “partial justice is better than none:” the ICC as an institution was only ever designed to prosecute a very small percentage of offenders. Even if its jurisdiction reached back to the 1990′s (or another elusive ‘root’ of the conflict), the ICC could only ever deliver partial justice. Ideally, of course, the Hague proceedings spark support for domestic proceedings with the flexibility to cast a wider justice “net.” This is a space where pre-2002 crimes could be addressed.
Secondly, by nature of criminal prosecution, a guilty verdict can almost never include the entire list of charges against a alleged perpetrator. So in my mind, as long as the Court finds significant grounds to proceed to the trail phase with events occurring after 2002, the exclusion of pre-2002 events shouldn’t significantly risk the Court’s ability to rule in a way that reflects a serious delivery of justice that is meaningful to survivors of a conflict such as the Uganda case.
Hannah Dunphy
American NGO Coalition for the ICC (AMICC)
@classyradical
@USfortheICC
As a former peace worker in Northern Uganda and South Sudan I was struck by this discussion. I think it is important to realise just how partial the justice the ICC’s approach is. It is indeed partial, in that not all LRA crimes will be tried. But it is also partial in that crimes only by the LRA and not the Ugandan Government will be tried. We should not forget that most – some figures I have seen suggest 90% – of the deaths in Northern Uganda in recent years have been due to the camps, for which the Government bears probably equal responsibility with the LRA – they started and systematically maintained the forced camps policy (I can supply evidenced references for anyone interested) .
So the partiality of the ICC by its choice of indictees ignores the main causes of death post 2002, as well as all crimes before 2002.
We should then additionally remember that one of the main motivations for the ICC’s intervention was the plight of the abducted ‘children’ (they are not all children, but anyway…) who the LRA takes to use as fighters, and in other ways. But ICC enforcement has always been primarily military in this conflict – the war against the LRA; against their fighters, who are of course the abducted children. Even now, ‘success’ in the war is measured by ICC supporters in terms of how few LRA are left i.e. how few of the abducted children remain. (Again I can provide evidenced references for these dynamics).
And finally, as before and after the ICC’s intervention, there was and still is not any effective means to prevent abduction by the LRA, and as we know that has continued since the peace talks collapsed. So it is not even a case of finishing off those abducted youth who are already in the LRA, but of ICC enforcement being associated with the military process of trying to finish them off faster than the LRA can abduct and train more. It is a very distressing dynamic, that was present when Museveni sat down with Ocampo to announce the ICC’s investigation, and it continues to this day.
So justice for the individuals at the top of the LRA may one day be achieved, but at the expense of the human rights of many others who have no international visibility. The frame itself within which international justice operates is partial, and the military enforcement of international justice raises profound justice issues in itself.
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