It may have slipped your notice but last Monday the International Criminal Court (ICC) found Congo warlord Bosco Ntaganda guilty of war crimes and crimes against humanity. Ntaganda – better known as The Terminator – was found guilty on eighteen counts including mass murder, gang rape and sexual enslavement of hundreds of women. It was a rare victory for the office of the prosecutor. Since its inception in 2002 the ICC has had only four successful convictions and all of these have been of non-state actors.
The court that promised to address international justice in a new, professional, just and inclusive manner has for the most part proved to be a disappointing failure. Victims, lawyers, academics and even perpetrators are all equally dismissive of its performance. Many now consider it an obstacle towards global justice due to its ineptness, arrogance and amateurism. Of course the fact that it is underfunded and understaffed has not contributed to its ability to deliver justice.
These and many more issues are dealt with in detail in a recent publication by Australian academic and researcher, Phil Clark. His seminal work, Distant Justice has at its core thesis that a court based in The Hague without any plans for decentralisation is out of touch with victims, affected communities and local and alternative systems of administrating justice. Clark argues that the ICC considers itself superior to every local jurisdiction and this of course flies in the face of its core mandate to be a court of complimentarity. But de facto and de jure it operates under a single model of justice and that is the prosecutorial or adversarial model.
He goes on to suggest that if the ICC were in place when South Africa faced its ugly past and planned for transition, then they might have plunged the country into civil war. The decision to establish a Truth and Reconciliation Commission (TRC) with the option of a conditional amnesty helped leverage the democratic transition and put an end to the racist apartheid regime. The ICC would never have tolerated that form of transitional justice.
The ICC has only one model of justice and yet even there it has failed to deliver. Not a single head of state has been convicted. In the Kenyan case the ICC failed to protect witnesses as several were assassinated; others were intimidated and the state machinery used to frustrate investigators who under their own bizarre rules only spent ten days in the country at a time. Again, Jubilee would not have produced a winning team of Uhuru and Ruto in 2017 had not the ICC pursued them as principal suspects in the PEV of 2007/8.
When the cases eventually collapsed the ICC disappeared without a single word of comfort or hope to the victims, despite the heroic efforts of victims lawyer Fergal Gaynor to have their voices heard and their grievances addressed. By taking over the Kenyan case the ICC let the local prosecution off the hook and to date not a single conviction has taken place despite the slaughter of over 1,000 Kenyans.
Clark argues that the decision to not hire investigators from the country under investigation was a poor attempt to be viewed as independent and apolitical. Shoddy investigations produced weak evidence and resulted in collapsed cases. The ICC is now viewed as a neo-colonial actor but in fact it is just a weak, inept player in global justice. Few Africans have any confidence in it and they know that local efforts like the Gacaca courts in Rwanda and the Arusha tribunal for Rwanda that were hybrid courts were far more effective in getting justice and more accessible and humane than the cold, distant justice of The Hague.
It is patently obvious that the ICC must reform or die. Clark argues that it needs to get out of The Hague and open regional centres staffed by local personnel in much the same way that UN Agencies operate. It must also be humble and work closely with local judicial systems as a court of complimentarity. In the process the ICC must admit that there is not one model of justice that fits all cases. There is a lot of wisdom in every conflict situation but that knowledge is rarely sought or welcomed. Hybrid courts like that of the Hissene Habre tribunal in Senegal managed to convict the former Chadian dictator. Above all else ICC must pursue the notion of restorative justice and not blindly pursue retribution at all costs.
- gdolan54@gmail.com @GabrielDolan1
