This article is written by Ari Salazar, a second year student studying International Relations at King’s College London.
The 1990’s were characterized by a cumulative revolution of universal human rights norms, which catalyzed the formation of several ad hoc courts (De Hoon, 2017 ). As part of this normative effort, on July 2002, the International Criminal Court (ICC) was established in The Hague as the first permanent international judicial body. Its inauguration marked an ambitious collective effort to secure global justice and end impunity for large-scale atrocities such as genocide, crimes against humanity and war crimes (ICC, 2018). But it also changed the dynamics between states and their own sovereign jurisdiction: the absolute power the Rome Statute bestowed on the supranational judges allowed the Court to hold state leaders accountable for their crimes (De Hoon, 2017). Currently, the Court is facing immense scrutiny, most notably around its decisions to prosecute heads of state. In particular, its overriding focus on Africa is heralding accusations of an anti-African bias and the general structural incompetence of its investigatory and prosecutorial strategies. The African Union has called for a ‘mass regional withdrawal’ of member states participating in the Rome Statute (Dickinson, 2009). The tensions between states under investigation, the African Union and the Court have led to a lack of co-operation between both sides, which is currently bearing a heavy weight on several of the Court’s operations. Over the past few years, the international community has witnessed the collapse of its most high-profile cases, based on lack of evidence and witness withdrawals. Furthermore, cases like Uganda, have raised alarm over the Court serving external political ends – or seeing its prosecutorial strategy impeded by national governments (Nouwen and Werner, 2010). Additionally, the strong regional backlash risks eroding the Court’s international legitimacy and prevents it from fulfilling its obligations as an external legislative body. Justice mechanisms rely on their widespread acceptance to fulfill their responsibilities (De Hoon, 2017). A most worrisome outcome is the window of opportunity this provides for impunity. For example, Sudanese president Al Bashir continues to evade prosecution due to the African Union’s non-compliance (LSE, 2007). Hence, the very task the ICC was set out to do, administering international justice, has become increasingly obstructed by aggressive local and regional politics (Roach, 2011).
This article seeks to investigate the political underpinnings of the Court’s deteriorating reputation through a case-by-case analysis, all the while observing how the political sphere overlaps with the ICC’s judicial agenda and vice versa. It demonstrates how the Court’s effectiveness is being hampered by both internally and externally vested political interests. The enquiry will first provide a brief theoretical overview on the intersections between law and politics, which aims to impart the reader with a lens of analysis. Second, it will delve into the local and international political dimensions of the Court’s activity to date in Uganda and Sudan.
- Law and Politics: The ICC and the ‘Friend-Enemy’ Dichotomy
Before we delve into the intricacies of the controversy surrounding the Court’s jurisprudence, we must first and foremost understand it in context of a larger discussion addressing the intersections between law and politics. Rodman (2009) separates the debate into to schools of thought: Legal Traditionalists and Legal Pragmatists. On the one hand, Legal Traditionalists draw clear lines between international law and international politics. They emphasize the need for separation as quintessential in legitimizing the rule of law and building ethical legal precedents. By their definition, law must be apolitical to function. On the other hand, Legal Pragmatists, move away from such rigid legalism. They maintain that long-term stability can only be achieved through more lenient jurisprudence, and hence, must take political considerations into account (Rodman, 2009)
Considering, that judicial bodies justify their indictments largely on their apolitical integrity to defend their legal decisions – the debate on the distinction and definition between the two concepts is particularly relevant to the ICC (Tiemessen, 2014). For the purpose of this article, we will begin with Cerar’s general definitions of law and politics, before examining their functional nuances. According to Cerar (2009), politics is part of a process-related dimension: in which the political will is implemented as per the ‘social power and authority’ and constructed through ‘conflict and consensus’. On the other hand, law is the ‘binding value-normative system’ under the operational control of the state and international institutions – which aims to maintain justice and order by preventing domestic and international conflict. Cerar (2009) draws a comparison between politics and law based on their functionalities: as progressive and safe-guarding mechanisms. Although, he recognizes the autonomy of law – he insists that all judicial institutions are nevertheless a ‘partial reflection of individual or collective political decisions…which have assumed a legal form and nature.’ Expanding on this notion of pragmatist law, Kircheimer warns us of the danger of institutions that legitimize their decisions based on their alleged ‘neutrality’ (Nouwen and Werner, 2010). In a recent interview, the ICC president defended the Court on the premise of its independence, ‘[t]here’s not a shred of evidence after three-and-a-half years that the court has done anything political. The court is operating purely judicially’ (Nouwen and Werner, 2010 ). Similarly, the Prosecutor emphasized ‘I apply the law without political considerations. But the other actors have to adjust to the law’ (Nouwen and Werner, 2010). Based on this reasoning, the Court implies politics exists entirely separate to law and must be subordinated to the rules and principles of justice. Hence, the entirety of the Court’s existence rests on the assumption of it upholding its apolitical integrity (Roach, 2011). Building on these claims, Struett (2012) provides a helpful insight by elaborating on the inherently politicized nature of the Prosecutor’s role: considering that he or she is at the forefront of the conflict and an ‘unaccountable actor’, any action or inaction of the Prosecutor will have political consequences. Hence, it is important for the Court to acknowledge the political dimensions of its cases and be as transparent as possible, in order to avoid its practices becoming symptoms of lawfare (De Hoon, 2017).
Moreover, the Court’s public denial poses a structural problem, as it deflects discussions on the (intended or unintended) overlap of its verdicts with the political realm. As a result, the Court completely overlooks its own considerations of social power, legislative choice, prosecutorial discretion and judicial intervention – which all entail political dimensions (De Hoon, 2017). Furthermore, it bypasses the importance the highly contentious environment the Court operates in plays in determining all the relevant facts to the case. The very selection of certain facts over others, along with whom it chooses to trial, inadvertently confronts the Court with a political stance (Koskenniemi, 2002). Hence, the autonomy of the law seemingly becomes infiltrated by politics when it circumscribes to the differentiation of adversaries (Cerar, 2009).
The risks of ‘polarized branding’ in Law and its darker undertones are delineated in Carl Schmitt’s ‘Concept of the Political’. Schmitt directs his focus on the functions of the political as a state-led mechanism of lawfare, that aims to distinguish ‘friends from enemies’ (Odysseos and Petito, 2006). According to Schmitt, the constant threat of armed confrontation reinforces the friend-enemy classification process invoked by the polity – which uses the oppositional terms to justify its legitimacy. Collectivities have allies, ‘friends’, which secure their hard and soft power. The other, ‘enemy’, embodies the ‘constant threat’ to the order of the polity (Odysseos and Petito, 2006). He applies the friend-enemy dichotomy to humanitarian law: in which the ‘othering’ of a state’s adversary in the name of ‘justice, humanity, order or peace’ and charges of ‘crimes against humanity’ become a potent political weapon. By invoking a struggle on behalf of ‘humanity’, the ‘enemy of the state’ is simultaneously degraded to an ‘inhuman’ category – which exempts the state from any moral obligations (Luban, 2011). Nouwen and Werner (2010) refer to Schmitt’s lawfare critique, in their enquiry on the differentiation process of ‘friend’ and ‘enemy’ in the ICC’s investigations and judicial proceedings. In doing so, they hold the Court accountable for having sacrificed the fundamental guiding principle of law, namely, justice, to the political criteria of parties to conflict. This article will partially draw on their analysis in its assessment of the political factors relevant to both case studies.
- The Ugandan State referral: Victor’s Justice?
The International Criminal Courts involvement vis-a-vis Uganda has been consistently subject to contention since its initial referral by the Ugandan government. The most immediate concerns address the accountability vacuum created by the unswerving bias of the investigation in favor of the Ugandan government (Langer, 2015). The conflict began in 2002, when the Lords Resistance Army (LRA) launched an insurgency against the Ugandan government. By 2003, the escalation in fighting led to a refugee crisis – with over 1.6 million displaced peoples falling victim to the war (Tearfund, 2007). The increasingly unstable conditions and shortage of aid attracted international attention and branded the crisis a ‘humanitarian emergency’. The failures of the Ugandan army to deter the threat and pursue possibilities for peace, along with President Musevini’s questionable domestic policies and allegations of corruption; subjected the state to sharpened criticism and external pressure (Tearfund, 2007). In 2003, much to the astonishment of the international community, Uganda sent an application to the Court calling attention to the large scale atrocities conducted by the LRA against the Acholi population (Dickinson, 2009). The self-referral was unanticipated, considering that the Rome Conference had primarily contemplated issues of sovereignty and state legitimacy, few had expected a member party to voluntarily invite the Court into its own territory and claim jurisdiction over its populace (Nouwen and Werner, 2010). Conversely, if we operate under Schmitt’s assumption that “whoever invokes humanity wants to cheat”, it sheds some light on the Ugandan government’s readiness to abdicate its sovereignty to the Court (Odysseos and Petito, 2006). As previously mentioned, Schmitt is wary of any state using a ‘humanitarian argument’ to justify its military position (Luban, 2011). The Ugandan government was acutely aware that it was far from resolving the crisis, however, the increased international scrutiny in conjunction with the falling contributions of international donors (which compromised 35-50% of Uganda’s income) pushed for a new security strategy. Nouwen and Werner (2010) separate the Ugandan government’s referral into two main tactical components: as an international rebranding campaign and a potent military strategy.
In a clever maneuver, the Ugandan government appropriated the Court’s determination to prove its practical efficiency as the safeguarding body of international justice, by using the self-referral as an opportunity for a rebranding campaign. By accusing the LRA of war crimes and crimes against humanity, Uganda invoked a humanitarian argument, which effectively put Schmitt’s friend-enemy hypothesis into action. The LRA transitioned from enemies of Uganda into enemies of ‘mankind’ and Uganda repainted itself as the ‘defender of humanity’ (Nouwen and Werner, 2010). In stark contrast to the previous criticism it had received for its domestic politics and UPDF operations, Uganda was now met with congratulatory remarks by the international community, praised for its philanthropic initiative (Nouwen and Werner, 2010). As Nettelfield (2010) rightly points out, war crime trials are meant to delegitimize acts of violence as acceptable political strategies, moreover, justice is put at risk if the war crime trials themselves become a political weapon. Allowing for the Prosecutor to openly favor the actions of one party, undermines notions of neutrality and the long-term legitimacy of the Court (Tiemessen, 2014) .
In addition to the self-referral facilitating a ‘rebranding campaign’, it also provided a potent security strategy. By inferring the LRA of ‘war crimes’ and ‘grave crimes against humanity’ the Ugandan government secured new means of defeating the rebel movement, as per the ICC indictment of high-profile LRA leadership and international assistance in the forms of economic and military aid (Nouwen and Werner, 2010). Likewise, the ICC provided Uganda with a significant regional leverage. The underlying power-politics were clear: any states seeking tensions with Uganda were synchronously challenging the hegemons of the international community. At the time, this balancing act was especially useful in providing Uganda with an alternative to declaring war on the Sudanese government, which had been supplying arms to the LRA – and had, incidentally, recently made it onto the USA’s international terrorist list (Nouwen and Werner, 2010). Conjointly, Uganda applied its bargaining power to secure permission from both Sudanese and Congolese governments for cross-border operations against rebel fighters (BBC, 2004).
Insofar as the Ugandan government is accountable for abusing the instruments of justice for its political and military agenda, the Court is equally guilty of succumbing to such a political trap in the first place. Since the official inauguration of the investigation, the ICC has through a series of diplomatic blunders, reinforced the friend-enemy dichotomy in service of Uganda’s security strategy and international reputation campaign (Tiemessen, 2014). A poor public relations strategy on part of the Court not only made it vulnerable to accusations of political bias – but also severely limited the development of an impartial prosecutorial strategy. Upon receiving Uganda’s application, the Chief Prosecutor, Luis Moreno-Ocampo, immediately released a joint-press statement, in which he underlined the international communities support in combating the LRA leadership alongside President Yoweri Musevini (Tearfund, 2007). In essence, the press-release was a formal establishment of the friend-enemy dichotomy: securing the LRA’s status as hostis humani generis: enemies of mankind, its initial introduction as a cooperative bystander arguably aiding its exemption from prosecution (International Criminal Court, 2004) . The Office of the Prosecutor (OTP) took great care to cultivate a positive public image: proudly flaunting its relationship with the Ugandan government by organizing lavish parties and boat trips (Nouwen and Werner, 2010). Unsurprisingly, Moreno-Ocampo put himself in a tightly-knit diplomatic position, in wake of the Courts lack of police force, the investigation became highly dependent on the cooperation of the Ugandan government to secure necessary evidence (The Hague Institute for Global Justice, 2013).
To this date, the Court has at no point attempted to amend the double-standards: with a disproportionate ratio of five arrest warrants of LRA commanders shining in stark contrast to the absence of accusations targeting the UPDF. The Court defends its lack of examination on crimes perpetuated by the Ugandan leadership on the basis of their not fitting the ‘gravity’ threshold’ outlined in Article 17 (1) which would justify culpability (The Hague Institute for Global Justice, 2013).Moreover, the Courts blind acceptance of the oppositional terms set by the referral without assessing factors relevant to its admissibility, not only formed a potent scapegoat, but also prevented the Prosecutor from conducting an enquiry into Uganda. In view of it immediately being equated to supporting the LRA’s mission of thwarting the government (Nouwen, 2013 ). In the Rome Statute, Article 17 and 20 (3) stipulate that a case is only admissible if it is not being (has not been) properly investigated or prosecuted by the state in question (International Criminal Court, 2004). In the case of Uganda, the OTP disregarded the governments previous arrest warrants for Joseph Kony – which could have contributed to a discussion of inadmissibility in the Pre-Trial Chamber (Nouwen and Werner, 2010).
To summarize, by not critically engaging with the criteria of complementarity in Uganda’s referral, the investigation became vulnerable to political incentives and self-imposed limits on the adjudication of comprehensive justice by effectively vindicating the impunity of the Ugandan leadership (Tiemessen, 2014)
- The UNSC Referral: Power Politics in Darfur, Sudan
While the Court’s cases in Uganda demonstrates the impact of domestic political pressures on its effectiveness, the backlash in response to the UNSC referral inter alia Sudan reveals the internal structural politicization of the mandate itself: implying a framework monopolized by great power politics (Hassan, 2010 ). Using Sudan, this article will contest the ‘impartiality’ of the Court’s referral – by examining its inherent link to the Security Council. For over a decade, Darfur has been subjected to systematic violence as a result of the armed confrontation between the Sudan Liberation Movement (SLM), the Justice and Equality Movement (JEM) and the Sudanese government (International Criminal Court, 2005). In February 2003, armed rebel groups staged attacks against the government in response to its coercion of Darfur’s non-Arab population, the government reacted with a vicious ethnic cleansing campaign. The fighting escalated into a proxy war, with various militia groups such as the government-funded Janjaweed wreaking havoc in local villages: conducting mass slaughter, rape and torture (Dickinson, 2009). The situation in Sudan drew many comparisons to the Second World War, in which the international passivity that enabled the Nazi regime’s abuse of power was equated to the inaction in (Hassan, 2010). The US Secretary of State testament to the Security Council thrust all accountability upon the Sudanese government – describing their judicial system as ‘corrupt, deficient, non-transparent and unable to deal with Darfur’, emphasizing a discourse focused predominantly on the government’s ethnic cleansing campaign, rather than accounting for the intricacies of the crisis, such as the international rivalries in the region and the scars of imperialism (Hassan, 2010). In response to international pressure amidst the rising death toll and refugee crisis, the UNSC invoked its jurisdiction under Article 16 of the Rome Statute and Chapter 7 of the Charter, following US-led Security Council Resolution 1593 (Roach, 2011). It referred the situation to the ICC for investigation in March, 2005 – opening the first case against a State not party to the Rome statute (International Criminal Court, 2005)
A large-part of contention towards the referral is directed against the Court’s ruling against Sudan’s President Omar Al Bashir: the first head of state to be charged with the crime of genocide (Williams and Sherif, 2009). The indictment of Bashir proved a crucial obstacle in the development of the investigation: leading to a political deadlock between the ICC and Khartoum, with the Sudanese government refusing to cooperate in any form – denying the OTP entry into Darfur and access to state-held information (Tiemessen, 2014). Furthermore, Sudanese officials criticize the OTP’s negligence under Article 17 of the Rome Statute’s complementarity principle, which maintains that the ICC can only intervene when national institutions are unwilling or unable to meet their obligations (LSE, 2007).Considering Sudan was instigating its own domestic proceedings on conflict-related crimes, what right did the ICC have to impose its external jurisdiction? (Nouwen and Werner, 2010). In response, Nouwen (2013) points out that the Sudanese accusations are due to a fundamental misunderstanding of the complementarity principle. The UNSC, whom the case was referred by, has no legal obligation to consider matters of complementarity. Accordingly, the ICC is not meant to fill a gap (or replace) domestic judicial proceedings, rendering the Sudanese qualms of the ICC undermining its domestic courts inadmissible to the case. However, it is important to note Sudan’s insistence on its sovereignty rights was neither unjustified nor irrational. The belief that the UNSC operates under complementarity was even encouraged by the UN Secretary General ‘The Sudanese government should start its own reasonable and credible judicial process before seeking to defer Al-Bashir’s prosecution by the ICC’ (Nouwen, 2013). As a result, the presidential arrest warrants are considered a vengeful reaction against Sudan’s refusal to ‘hand over Ahmad Harun and Ali Kushayb’ for their alleged violence in Abyei. These claims were seemingly confirmed by a passing remark made by Luis Moreno Ocampo to an African Union official ‘if Sudan had handed over these two guys, it would not have had the problem of the President’ (Nouwen, 2013). In contrast, the OTP insists that it had consistently attempted to avoid confrontation with the Sudanese government prior to issuing the indictment. In the eyes of the Prosecutor, such compromises implied certain conditions, such as, handing over less powerful figure like Harun and Kushayb (Nouwen, 2013). Upon reflection, the cumulative decline of relations between the two parties can, in part, be attributed to miscommunication. The initial bias the Sudanese government held towards the ICC and vice versa, led to a self-destructive offensive campaign on both parts. Both saw the other’s actions in purely oppositional terms, which prevented any form of cooperation or long-standing compromise (De Hoon, 2017). The ICC was perceived as ‘interventionist’ and the Sudanese as ‘irrational and corrupt’. These villainizing conclusions reduced the situation in Darfur into a two dimensional conflict: of criminals and of heroic rebels (Hassan, 2010).
Moreover, Sudan’s concerns were not unwarranted, considering Sudan’s plentitude in oil resources, it has a historical account of global powers engaging in proxy wars to win over the geopolitical hotspot (Hassan, 2010). A fact the Sudanese officials have not shied away from pronouncing, pointing out the American administration repeated unilateral attempts at exploiting Sudan’s wealth over the years (Tafotie and Idahosa, 2016 ). Hassan (2010) claims that Washington’s foreign policy in the region is specifically geared towards containing Chinese influence and mitigating the remnants of France’s colonial influence. Specifically, Khartoum’s close economic relations with Beijing have threatened Washington’s vested interests. If the oil in Darfur was primarily under Sudan’s authority, China would become the chief benefactor in exploiting the regions oil (Tafotie and Idahosa, 2016). In respect to Sudanese national security, the United States bid for South-Sudan’s self-determination and their close relations with the Chadian government directly impact Sudan’s counter-terror efforts (Tafotie and Idahosa, 2016). Considering the Chadian government is openly at war with Omar al-Bashir’s regime and has supplied many of the Sudanese rebel forces with military provisions, the Sudanese government holds the United States complicit to such subversive activities (Tafotie and Idahosa, 2016). The close reminder of Washington’s interventionist rhetoric and its public declarations of ‘firm political oversight’ of the ICC proceedings reinforced Sudanese concerns, with officials pointing towards the politicized nature of the referral. Insofar as it conveniently rebranded Sudan an ‘enemy’ of the international community, in favor of broader power politics and the liberation movements they indirectly support (Tiemessen, 2014). It is impossible to ignore the hypocrisy of the United States suddenly asserting its fully-fledged support to the ICC, considering it refused to ratify the Rome Statute. In fact, the administration has worked exceedingly hard to ensure its own impunity through several international treaties and other bilateral agreements (Global Research, 2009). The Court’s acceptance of such a display of double-standards, merely catalyzes suspicions of it serving as an apparatus to foster UNSC members self-interest.
Furthermore, the mounting regional controversy surrounding Al-Bashir’s indictment has impeded the Court’s ability to fulfill the arrest. The proceedings inherently became synonymous with a politicized presence and an uninvited interventionist agenda. On 3 July 2009 the African Union called for all states to reject the ICC’s indictment and grant Al Bashir diplomatic immunity. As a result, Kenya, South Africa, Uganda all made no move to apprehend the President upon his incursions to their own territory (Tladi, 2009). The Prosecutor accused the latter members of the Rome Statute of non-compliance and in violation of international law, based on their binding obligations to the Rome Statute’s provisions and customary international law (Nouwen and Werner, 2010 ). However, such verbal accusations have done little to sway the situation and Al Bashir remains outside of the Court’s custody (Williams and Sherif, 2009). Given that the strongest support at the Rome Conference came from African nations, this decision marked an unsettling turn of events. The Court’s effectiveness hinges on the prerequisite of state cooperation and recognition of its ‘legitimacy’ as an impartial judicial institution (Tiemessen, 2014 ). The African Union’s denunciations of the politicization of the Court threaten its very existence by putting into question whether it is fit to arbitrate independently from to externally vested interests of international and regional actors (Tladi, 2009). The fact that Al Bashir has managed to evade prosecution is a stab to the Court fulfilling its primary duty: ending impunity (Williams and Sherif, 2009).
Fundamentally, a referral by the UNSC cannot be separated from international politics, based on the absolute power distribution between the United States, China, France, Russia and the United Kingdom, all of whom have vested interests in the region (Hassan, 2010). As such, the ICC’s claims of neutrality are forfeited to each member’s ability to direct the cases up for selection, based on their own political priorities (Tiemessen, 2014).
- Final Remarks
To conclude, the Court’s activities in Uganda and Sudan are a pertinent reminder of how easily a culture of politicized justice can infringe on judicial proceedings. As discussed, the initial prosecutorial miscalculations and diplomatic blunders in Uganda allowed the Ugandan government to appropriate the ICC apparatus, in order to fit its personal strategic interests and ensure its impunity. In addition, the investigation prompted by Security Council in Sudan serves as a persistent reminder of the broader power politics at play and the Court’s omnipresent structural fallacies in mitigating such suspicions. Clearly, the Court is subject to the influence of external actors and makes political choices in its rulings. However, this deduction should not necessarily hamper its effectiveness. Realistically, the ICC will have to compromise following a grander justice framework in order to maintain a flexible approach. This should come as no surprise, as every case it accepts is unique and requires different points of attention in its judicial adjudication. I would like to stress that the issue at hand is not the intersection between law and politics, but rather, the Court’s denial and lack of transparency in accepting politics as part of its structure (De Hoon, 2017). Under these conditions, it risks confusion over the nature of its decisions and invites criticism – which in turn restricts its effectiveness.
Perhaps, this article was exceedingly critical of the ICC, considering it is a relatively youthful body – there has to be space for it to learn from its case record. If we look at its current practices, the Court is noticeably attempting to amend points of tension made in the African Union’s proposal. For example, it is addressing the denunciation of its primarily ‘African case record’, by broadening its investigations into Afghanistan to scrutinize U.S detention and interrogation malpractices. With further preliminary investigations on their way in Georgia, Colombia, Honduras and South Korea. In addition, the ICC has requested for the AU to submit an outline of recommendations for reform (Reuters, 2013). Such inclusive measures are a step forward towards reconciling the gap between the Court’s grander judicial framework and the more pragmatic reality of its case-by-case advances. The African Union’s threats of withdrawal should not be seen as the erosion of the Court, but rather, an opportunity for reflection. The ICC’s ability to respond and communicate with its most ardent critiques, will be pertinent to its development as an autonomous international judicial institution. Indisputably, the ICC is integral in allowing for victims all over the world to receive justice amidst unimaginable atrocities. In wake of the lack of credible alternatives, for better or worse, the ICC’s staff and critiques should settle their attention to a comprehensive adjustment of the Court’s existing mechanisms.