The Future of the ICC and Justice

It’s an interesting time to be watching the ICC. Last month, Gabon surprised many by referring a situation to the Court, potentially opening up another investigation on the continent. But in the last week South Africa, Burundi, and The Gambia have all officially withdrawn from the Court, throwing the entire institution into question as the collapse of African support for the ICC is manifested after years of erosion.

I don’t have too many hot takes right now, but do want to note both the obvious importance of such ongoing events, but also flag the long and thorough critiques of the ICC’s structure and capabilities. The ICC as an institution rests on state compliance and participation, and so the withdrawal of these three African countries – particularly the unexpected decision by South Africa – will have a big impact, especially if they herald a larger exodus. At the same time, the type of justice that the ICC offers is a narrow and specific one. If the ICC is indeed crumbling, it is not the end of justice. It may even be a new beginning. That said, the ICC continues to have its hand in many pots. The trial of Dominic Ongwen is set to begin in January, and will be a place to watch for what types of justice might be offered by the ICC.

For now, though, a brief link roundup.

Kate Cronin-Furman and Stephanie Schwartz have a good write-up on what Burundi and South Africa’s withdrawal means in light of the continent as a whole. Burundi’s withdrawal was almost expected, and the reasons for it are clear. The case of South Africa is a little harder to discern:

As anti-ICC sentiments have hardened within the A.U., South Africa has struggled to balance its role as a regional leader with its ambitions as an emerging global power. One read of the situation is that the withdrawal is less about South Africa’s relationship with the court than it is about its view of itself vis-à-vis the rest of the continent. If, in fact, a mass walkout is imminent, South Africa would prefer to lead the movement rather than follow others.

Mark Kersten agrees with this analysis, but doesn’t think a mass walkout is in order – though a few states may follow suit. In his post, Kersten also takes a hard look at the domestic political situation in South Africa, which is worth perusing. In the end, as always, we’ll have to watch this play out and see how the chips fall. The ICC is a robust institution, but its record is shaky and its reliance on state participation means every state that leaves weakens it little by little. But it’s never had the overt support of powerful states like the U.S., China, Russia, etc. – arguably a bigger obstacle to any effort at establishing global justice norms.

It’s this reliance on states that renders the ICC ineffective from the start. While many criticisms of the ICC are about bias, the power inequities of the global stage as well as who has signed the Rome Statute and who has not create an inherent bias – an inherent impunity. As Samar Al-Bulushi notes:

From the protection of victims and witnesses to the apprehension of suspects, the ICC’s operational reliance on powerful states ensures that individuals from those states will largely escape scrutiny, and that the Court’s decisions are often far removed from the very people it was designed to protect.

[…]

The ICC and its more prominent supporters, much like proponents of the “responsibility to protect,” generally lead us to believe that the Court is the answer to impunity, as though the law were divorced from politics, and as though “peace” and “justice” can simply be delivered at the push of a button.

Yet the ICC is an institution located within a larger architecture of power that endows some crimes and some victims with legitimacy, and not others. At the same time, its “responsibility to punish” is subject to political manipulation that allows for further exception and impunity.

This last point is why, regardless of what happens to the ICC, justice will have to be found elsewhere. The ICC will continue to receive referrals and investigate conflicts, it will even issue warrants and charges and try those it is able to get to The Hague. But even if these withdrawals didn’t happen, the ICC’s crippling reliance on member states – and the refusal of human rights-abusive states like Syria or Sudan, Israel or the U.S. to even join the Court – mean the ICC would still face be biased not only in where it chose to investigate, but where it even could investigate legally. What justice is there if some will never even be investigated?

So let’s not conflate justice with international criminal justice. As Kamari Clarke writes in Fictions of Justice, “it is limiting to assume that ‘the law’ – rule of law, criminal law, national law – is the only way that justice can be achieved, especially because justice itself is not a thing but a set of relations through which people establish norms of acceptability” (147). Western liberal legal norms at the international level are certainly not the only place where people can be held accountable, guilt can be attributed, responsibility meted out, and reconciliation fostered. The ICC is one place where some of this can happen, sometimes, for some people. What happens to the ICC matters, but we can and should imagine justice happening outside of The Hague. The withdrawal of these three countries should be taken seriously not only for its potential consequences for the ICC, but also as a signal to think beyond the ICC, as Al-Bulushi urges.

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Burundi’s Descent

Quick post with links on Burundi, where things have steadily gotten worse all year but may be descending even more quickly with a recent spike in violence.

Here’s Ty McCormick at Foreign Policy on recent armed attacks on military bases, and what it means for the broader political situation in Burundi. A month ago Kate Cronin-Furman and Michael Broache noted that the violence in Burundi is a political conflict, trying to steer conversation in that direction. However, as Cara Jones notes, the discourse around the conflict is changing form, and may be sign of increasing ethnic conflict:

Since the outbreak of protests against Nkurunziza’s third term, both government and opposition have used ethnicized rhetoric… The government uses ethnic rhetoric presumably to signal to the opposition the potential violence that could come their way and incite citizens to participate in violence. The opposition uses ethnicized rhetoric to push for international intervention, which has the potential of changing the makeup of government.

More concerning than the rhetoric, however, are the ethnic patterns of violence that appear to be emerging. There are reports, for example, that security forces have targeted protesters in Tutsi minority-heavy districts of Bujumbura. These individuals have been arrested, tortured and subjected to other forms of violence. Weekend violence resulted in at least 87 deaths, and witness statements and information on victims’ ethnicity strongly suggest that many of the victims were disproportionately Tutsi.

Refugees International published a report [pdf] that Burundian refugees are being recruited in refugee camps in Rwanda, with negative consequences for all of the refugees involved.

In a piece at Blank Spot Project, journalist Anna Roxvall tells several stories from Burundi over the last few months. The article includes several vignettes that demonstrate the heightened levels of violence that people are enduring. This is just one excerpt (including references to murder and rape):

The water in the Kinyankonge River runs, dirt-brown, down its furrow. A few young men have set up a make-shift bar on a slope and play an edgy Afrobeat through cracked speakers. It’s hot.

This neighborhood along the river is called Mutakura and is the area where the biggest protests against the government raged this spring. Many young men were killed during the clashes there, which is considered the seat of the opposition by police and the government.

”This place used to be bustling with people who came for the clay to make bricks,” says 22-year-old Alain, balancing on the porous river bank.

Nowadays, nobody dares to begin new construction. In the ongoing conflict, the river has turned into a no-name graveyard. In the morning, the people who live here find corpses that have been dumped under the cover of the dark.

”It’s usually not people from here, so I think it’s people who have ’disappeared’ from other parts of the city,” Alain says.

The corpses are mostly men, but one time there was a woman. Someone had violated her with a stick.

Alice, who is 27, also found a dead body here two weeks ago.”It was impossible to see who it was, he was back-tied and had a rice bag over his head,” she says.

We stand there and consider the plastic bags, trash and old shoes that are swirled around and getting stuck on the river bottom. Alice puts her arm around a little girl who has joined us and then makes an irritated gesture toward the mess in the river.

”This affects our children very much. How are they supposed to be able to focus on their education if they find dead bodies on their way to school?”

Update – Dec. 15: Ty McCormick published a follow-up report on the state oppression that followed the armed attack on military bases. While the attacks did happen, a majority of those killed by security forces afterwards were not involved, but were the victims of state revenge.