The International Criminal Court risks blocking peace
Parts of Uganda have been plagued by violent confrontations between the government and the Lord's Resistance Army rebel group since 1986, when the current president of Uganda, Yoweri Museveni, took office by force.
In the 2000s, the warring parties were negotiating a peace deal, where the International Criminal Court, as an intergovernmental institution tasked with prosecuting war crimes, played a role. This process has been researched by assistant professor Line Engbo Gissel.
At the time of the peace talks, the International Criminal Court had already issued arrest warrants for rebel leader Joseph Kony and several other leading figures in the Lord's Resistance Army, and Line Engbo Gissel has investigated how peace talks can take place when the International Criminal Court is involved at a high level.
"When the International Criminal Court is involved at a low level, arrest warrants are not issued, but the court monitors the situation, for example during peace negotiations. In such a situation, there is an opportunity to achieve peace. But we have not yet seen the parties achieving peace when there is a high-level intervention", says Line Engbo Gissel, who has written the book “The International Criminal Court and Peace Processes in Africa: Judicialising Peace”, which will be published by Routledge next year.
Often, the International Criminal Court operates in situations, where a country is transitioning from one political situation to another - for instance from violence to stability, or from dictatorship to democracy. During such a transition period, there may be a need for a special and temporary legal phase to deal with human rights violations in order to ensure that the transition succeeds.
International standards do not apply locally
The Court's involvement in different countries also raises other issues.
After the peace talks in Uganda broke down, the Ugandan government nevertheless implemented some of the measures that had been negotiated with the international community on the side-lines.
When an institution such as the International Criminal Court is involved, the countries concerned adopt the concepts and standards of the international community. For example, the UN and the EU make demands on how a settlement of past conflicts should progress, and in this way the standards for justice are defined by the international community. The concept is called internationalization.
"One of the problems is that these standards may not be appropriate for the conflicts that different countries are trying to put behind them. There may be all sorts of problems. The countries may be in transition and may have moved from dictatorship to democracy, or from war to peace or a blend of everything. If the international community introduces an international standard that a country is encouraged to follow, there may be a risk that the transition does not address the specificity of a particular country's conflict” explains Line Engbo Gissel.
She points to Kenya as an example. The International Criminal Court was involved following violent clashes after a presidential election at the end of 2007. Kenya subsequently had a process that follows many of the international standards, but there was no real willingness to deal with some of the deeper post-colonial issues of ethnic groups’ sense of belonging to certain land areas, which was the basis for the clashes.
“All these initiatives and processes, which are internationally supported, are acted out on the surface. This may also be easier than taking the tough decisions and discussions about how to deal with the circumstances around land and ethnicity. So, in this way, internationalization can derail a deeper transformation process” explains the assistant professor.
The court as an active party
The peace talks in Uganda broke down in 2008, and one of the problems may have been that the International Criminal Court might have been too deeply involved.
"The form and content of the peace talks were directed towards the international community and the International Criminal Court to such an extent that it could be said that the court - metaphorically - was in the negotiation room", says Line Engbo Gissel.
The case in Uganda was one of the first cases for the court, and the court had decided that the rebel leader Joseph Kony should be arrested and prosecuted for charges of war crimes and crimes against humanity. But when Uganda offered Kony and the other rebel leaders an amnesty, it conflicted with the possibility for the International Criminal Court to prosecute them.
"So, the court’s prosecutor launched a campaign that sought to de-legitimise the peace process and influence its donors. The prosecutor claimed to have evidence that Kony was not really interested in peace, but was instead using the peace talks to prepare a new military offensive. However, there is evidence that Kony did not mobilize his soldiers and was serious about peace talks", says Line Engbo Gissel, continuing:
"Although the court describes itself as apolitical, the campaign was a highly ideological response, because there would have been a much greater chance of prosecuting Kony if he was granted an amnesty, the conflict was ended, and then pressure was put on Uganda to arrest him when he was no longer a rebel leader, but merely a regular man on the street. That would have been the pragmatic way to get the trial started and is also the method that was used to prosecute Liberia's former president, Charles Taylor", she says.
Conflicts and wars can usually be terminated by one of the parties winning a military victory or by the parties politically negotiating a peace deal. But it is difficult to get one party to voluntarily abandon a position of power if it leads to a prosecution for crimes against humanity.
"If the war is over, it is possible to have an ordinary trial because the warring parties are demobilized and neutralised, and they can then be arrested. But if the war is not over, it makes sense to take a more flexible and pragmatic approach. It is essential to view the situation from a political perspective, instead of living in an idealized world where one believes that the fighting parties would voluntarily accept 30 years’ imprisonment. They will not necessarily do that", says Line Engbo Gissel.
Assad is unlikely to surrender voluntarily
There are parallels to the war in Syria, where the warring parties are alleged to have committed war crimes. But if we want to achieve peace here and now, it is unrealistic to expect that President Bashar al-Assad voluntarily accepts to be prosecuted. This will never happen and the international community therefore needs to adopt a more pragmatic approach, even if this means that Assad cannot be prosecuted for crimes against humanity immediately, explains Line Engbo Gissel.
"When it has not been possible or desirable to end the war on a military basis, and if we want to achieve a political solution instead, we have to forget about prosecution in the short-term. It is unlikely that we can have both a legal process and a peace process in Syria. There have been no examples of leaders such as Assad voluntarily submitting to such a legal process while still in power. We should not be blind to power relations and we should not assume that if someone controls an army, they will not use it to avoid a legal process” she says.
Line Engbo Gissel, assistant professor at the Department of Social Sciences and Business. She teaches at the bachelor programme International Studies and the master programme Global Studies, including the courses Global Governance, Transitional Justice and International Law for the Social Sciences.
Fact box:
The International Criminal Court
The International Criminal Court was established in 2002 and is a permanent intergovernmental institution that deals with genocide, crimes against humanity and war crimes.
The Rome Statute gives the International Criminal Court jurisdiction. 139 countries have signed the statute, with 124 having ratified it. Major countries such as the United States, Russia, China and India have not ratified the statute.
The court has been involved in 23 cases and investigations in total. All the court cases have been against Africans, and critics accuse the court of primarily prosecuting African actors.
The International Criminal Court is not a UN body, but the UN Security Council may refer cases from countries that have not ratified the statute. In addition, member states may refer internal cases to the court, when they do not have the capacity themselves for a judicial process. The court’s prosecutor can also initiate proceedings in member states.