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The Economist
Nov 26 2011
ON NOVEMBER 22nd Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court (ICC), flew into Tripoli in perhaps the last high-wire act of his career. He and his deputy, Fatou Bensouda, a Gambian lawyer, began haggling over the fate of two men who are wanted in more than one place: Saif al-Islam, son of the late Libyan dictator Muammar Qaddafi, who has just been arrested while trying to flee to Niger (above), and Abdullah al-Senoussi, a former Libyan spymaster.
On the Libyan street there is a palpable desire to see the two men hanged. The new Libyan authorities are insisting that they are capable of staging fair trials. Mr Moreno-Ocampo had at first argued that the prior claim belonged to the ICC, which issued arrest warrants for the two Qaddafis and Mr Senoussi at the behest of the United Nations Security Council in June. But on November 23rd—though doubting whether Mr Senoussi really had been arrested—he accepted that Libyan courts could give the younger Qaddafi a decent hearing. He added that the ICC, in its capacity as a court of last resort, would help if needed.
From the suspects’ viewpoint, a deliberate inquiry by the ICC in The Hague, with a chance to defend themselves and no death penalty on the statue book, would be preferable to a trial in the vengeful atmosphere at home. But an ICC trial would have limitations. The charges drawn up by Mr Moreno-Ocampo pertain only to misdeeds committed since February this year, when civil war escalated and the UN called in the court as one of many instruments designed to thwart the Qaddafi regime. The UN could in theory authorise a broader probe, but the court can never look into anything that happened before its doors opened in 2002. So a trial in The Hague could not investigate the downing in 1988 of an American passenger plane over Scotland, or the killing of 1,200 inmates in a Libyan jail in 1996.
Some institutional interests are at stake. A Libyan case would have thrust the court at last into the limelight, confirming its role as the place where victims of the worst misdeeds—crimes which might otherwise go unpunished—can seek restitution. Set against the Utopian predictions made in 1998, when the Rome statute providing for the court was signed, the record so far has been rather disappointing. The court was destined, said one campaigner for its creation, to “save millions of humans from suffering unspeakably horrible and inhumane death.” Of course, its very existence may have made some would-be dealers of death hold back; but such extravagant claims are hard to sustain.
The most ambitious thing the ICC has done is to indict Omar Hassan al-Bashir, the president of Sudan, on a charge-sheet that includes genocide in the Darfur region. But he remains firmly in office and seems free to travel to a good number of countries. The indictment has not triggered the bloodbath some feared, but it has not done much good either—leaving untouched, for example, the military and intelligence apparatus of the Sudanese state.
The court faces a turning point next month, when member states confer in New York. A new prosecutor will be chosen from four candidates, including Ms Bensouda. Six of the 18 judges will also be replaced, in a ballot preceded by an unseemly round of bargaining and canvassing. Arcane rules govern the choice of judges: the sexes must be balanced, and each of the world’s main regions must be equally represented. But candidates need not have been judges at home; one Japanese member of the court has been a law professor and diplomat. Of the 19 runners in next month’s ballot, four seem unqualified, says one team of legal pundits; but they may still be voted in thanks to diplomatic back-scratching. The field at least looks better than it did in September, when the deadline had to be extended for want of suitable names.
Whatever happens, the court may be less of a cosy club than it has been hitherto, insiders say. A handful of individuals were closely involved in the talks to set it up, and many of them took senior jobs. Next month’s choices will help to determine whether the institution develops a robust life of its own, or simply becomes one more wagon in the UN gravy train.
Many hope the court will broaden its geographical ambit, although any such move will face huge political obstacles. No member of the UN Security Council has ever been in the court’s sights; indeed only two permanent council members, Britain and France, belong to it. All five countries where villains are expected to go to The Hague (see table) are in Africa. This year the court has also become involved in Côte d’Ivoire and Libya. In three cases, the countries themselves called in the court; but this narrow focus has made many African governments suspicious of a body which has many member states—119 and rising—but big absentees, from America to India to most Middle Eastern countries.
The list of places where the court says it is carrying out preliminary investigations is broad enough: Afghanistan, Colombia, Georgia, Gaza, Honduras and the Korean peninsula, as well as Guinea and Nigeria. But the total number of staff involved in those initial probes is a bare handful. The court’s resources are overwhelmingly directed at a single continent. All 26 of the suspects publicly indicted by the court have been African; of those in the court’s custody, four are Congolese and one a Rwandan wanted for crimes in Congo.
Disorder in the court
Only one trial has been completed, that of a Congolese strongman, Thomas Lubanga, who was arrested in 2006 and has been in the dock, on and off, for two years. The proceedings have been chaotic. On two occasions the judge has ordered the suspect’s release—only to reverse the decision soon afterwards. Both times, defence lawyers had argued forcefully that the prosecution was either failing to disclose evidence, or was offering improper inducements to witnesses, several of whom changed their story completely when cross-examined.
What these near-farcical scenes highlight is a wider problem: when a court, based in a rich Western country conducts a trial relating to a desperately poor one, witness protection and witness inducement are hard to distinguish. The ICC prosecutors rely on intermediaries to act on their behalf in remote parts of Africa. If these go-betweens offer a person safety and comfort before and after testifying, in a place where daily life is hard and dangerous, that can be irresistible.
If the court is making a difference anywhere, it should be in the broad zone of conflict that straddles Congo, Rwanda, Uganda and the Central African Republic, where most of its work has been done. That is an important place to investigate; up to 5m people have died as a result of Congo’s wars. But the prosecution’s choices in that region have faced criticism from Human Rights Watch (HRW), probably the most influential among a cluster of NGOs that lobby for the court.
The court’s decisions dismayed people in the war zone and have stoked tensions, says a HRW report. First, the arrest of Mr Lubanga upset fellow members of his Hema tribe: why were their enemies, the Lendu, being spared? The next year there was an attempt at balance when two leaders of the Lendu were packed off to The Hague. But the charge-sheet for them was longer than for Mr Lubanga, who is accused only of recruiting minors. Did that mean, locals asked, that Mr Lubanga was innocent of other misdeeds? Such grumbles can reignite violence.
Another complaint from HRW is that the prosecutor’s team has taken no account of the roles played in the conflict by the governments of Uganda, Rwanda or Congo. Its investigation of Uganda’s internal wars was also flawed; it indicted five members of the Lord’s Resistance Army, a bloodthirsty rebel force (one of whom has died), but failed to hold state forces responsible for their misdeeds. The Central African Republic is yet another country where the court has raised and then dashed expectations among victims, says Marlies Glasius, a professor at Amsterdam University. Under pressure from brave local NGOs, the court investigated bloody fighting triggered by a coup in 2003; but its only indictment relating to CAR events is of Jean-Pierre Bemba, a warlord from Congo. This ignored the crimes of others, external and internal, in CAR, as well as any misdeeds by Mr Bemba in Congo.
All these critiques reflect an idealistic view: that if only the court had more resources, or better prosecutors, it could fulfil its mission of “delivering justice” to victims of atrocity. But the problem may be more basic. The ICC is strong and prestigious enough to raise hopes, but it will never be powerful enough to do what it half-promises—to take broad responsibility for a nasty, complex situation by neutralising the bad guys and making life easier for decent folk. In terms of value for money, other initiatives seem to be doing better: for example the “mobile gender courts” dealing with sex crimes, established in Congo with the help of the American Bar Association.
As a permanent institution, the ICC was supposed to replace the sort of ad hoc but well-resourced tribunals which have meted out justice in Rwanda and the former Yugoslavia. A third alternative is mixed courts—combining local and international expertise, and conducted where possible near the scene of the crime. The record of mixed tribunals, such as those in Cambodia (see
Banyan) is far from perfect, but they may sometimes be a better option than permanent institutions where lawyers and bureaucrats grow rich.
Watching from the Rift Valley
The ICC has one notable chance to prove its worth—in Kenya. It may be a long way from the Rift Valley, a tribal tinderbox where jobs are scarce and land even scarcer, to the tidy streets of The Hague. But the distance has shortened in recent weeks as six important Kenyans, including Uhuru Kenyatta, the ultra-rich deputy prime minister and son of the country’s first president, Jomo Kenyatta, have made appearances at the ICC to face possible charges of crimes against humanity. They are not in custody, but turned up when summoned.
The Kenyan case—the biggest political and legal challenge the court has faced—arises from an orgy of violence, in which entire families were burned alive or hacked to death. The fighting broke out in the Rift Valley and across Kenya after a disputed election in 2007. Three senior figures from each of Kenya’s main parties have been indicted; it is alleged that each side fomented brutal attacks on its rivals.
In Eldoret, in the Rift Valley, townsfolk follow the trial keenly—in part because tensions still simmer. On October 31st a farmer was killed and members of his Kalenjin group paraded the body, blaming the Kikuyu, the country’s dominant tribe. Jomo Kenyatta was a Kikuyu; his successor, Daniel arap Moi, was a Kalenjin.
These days, events thousands of miles away excite as much passion as local ones do. Thanks to broadcasts from Kenyan reporters and postings on YouTube, many people in the valley have watched as their country’s bigwigs—who cut swaggering figures at home—meekly follow the judges’ orders. The Kenyan public has also been watching closely as some of the world’s brainiest and best-paid defence lawyers lay into the prosecution’s case with fluency and flair. Having mulled these arguments, the court will decide next month whether to confirm the charges.
The proceedings may be confusing—with silver-tongued barristers arguing for the admissibility of this or that document or video clip—but the emotions they touch are raw. During the violence of 2007-08, most of the killing around Eldoret was Kalenjin on Kikuyu; in other parts of Kenya it was the other way round. In all, at least 1,100 people were slain and more than 300,000 displaced; the country was not far from all-out civil war.
Indeed, any conversation with local people gives a sense of how big the stakes are in The Hague. An outcome that is viewed as unfair could have an instant price in blood. William Ruto, the main Kalenjin defendant, preens himself as the Rift Valley’s warrior-prince. Seeing him arraigned in a far-off land has felt humiliating for many people in Eldoret. If they have grievances against him, they often keep them quiet out of fear or local pride. Open disloyalty to Mr Ruto could, at a minimum, harm their job prospects. If The Hague treats him and the two other Kalenjin suspects worse than it treats the Kikuyu defendants, his henchmen may run amok.
Ruto, warrior-prince (right), obeys his summons
But not everybody feels so cowed, at least in private. Some fair-minded Kalenjin see the court as the best hope of reining in the power of bullying tribal leaders. “For the first time we are seeing political trousers shaking,” says a farmer who admires the ICC. Some Kalenjin feel that Mr Moi and Mr Ruto gave their group a bad name. For such people, the private fear is that Mr Ruto and his two co-defendants will be acquitted—allowing them to storm home and settle scores. The stakes are very high. “If they return triumphant, we will be killed,” says one human-rights activist. If they are convicted, Kenya can move on.
The ICC has shown some sensitivity to local politics in its handling of the Kenyan case—by indicting an equal number from the two groups and by promising to make a single announcement on whether to proceed to full trials. (It could be explosive if one lot’s fate were revealed ahead of the other’s.) That marks a modest improvement on the bumbling which has marred the court’s forays into other parts of Africa.
For the legal profession, meanwhile, the Kenya case means a lot of lucrative and glamorous work. A judge at the ICC earns a minimum of €180,000 a year tax-free, and the sort of barristers who defend war-crimes suspects can make many times that amount. The Kenyan suspects’ defence team has managed to recruit a couple of lawyers who formerly worked for the prosecutor’s office. It is a reasonable bet that this move did not involve a pay cut.
The people’s voice
On the other hand, the court also tries to make sure that the voices of much humbler folk are heard, albeit indirectly. At a recent hearing in The Hague, a “legal representative of the victims” stood up in court to transmit the views of 233 people he had interviewed, mostly in the Rift Valley. One had got up at 5am and walked 50 miles to make her statement: “She said she came because she felt their lot would be better now [thanks to] the ICC.” Such human voices chime oddly with the thundering perorations of top-rank lawyers.
Human Rights Watch says approvingly that by choosing from two ethnic groups and from different political parties the court has “reinforced perceptions of independence”. But this praise is not entirely deserved. Many Kalenjins and the Kikuyus are angry that no one from the Luo tribe—along the shores of Lake Victoria and with concentrations in some Nairobi slums—has been named by the ICC. Mr Ruto’s supporters are especially bitter about the sparing of Raila Odinga, Kenya’s Luo prime minister, who probably won the 2007 election and is again favourite to win the presidency next year. Mr Odinga has denied any foreknowledge of the ethnic cleansing of Kikuyus in Kisumu and other Lake Victoria towns where the Luo predominate. He also claims to have no control over Luo gangs who burned Kikuyus out of the Kibera slum in his constituency in Nairobi. And Mr Odinga has distanced himself from his former ally, Mr Ruto.
Despite these contortions, the ICC still has popular support in Kenya. In contrast to his patchy performance in Congo and elsewhere, Mr Moreno-Ocampo is trusted by many Kenyans. Polls a year ago said that 78% of Kenyans support the ICC. The figure has since dropped to 65%, but will probably rise if the trials go ahead. The percentages are smaller in the strongholds of Mr Ruto and Mr Kenyatta; at funerals and community events in such places, children can be heard singing songs against the ICC. Mr Ruto’s lieutenants sometimes beat the anti-colonial drum, promising the expulsion of white farmers from the Rift Valley (where there are almost none) and identifying the ICC as an oppressor.
Some worry that the ICC’s emphasis on bringing down big men means impunity for those actually doing the killing and raping. Yet in Kenya there is no doubt that the ICC has lowered the political temperature. It has also performed the valuable, if indirect, service of chronicling recent events. If the Kenyan cases come to trial, they will be the most detailed cross-examination ever of the country’s history. “If you bury the truth, it will grow,” says a Kalenjin elder who expects good things of the trials.
If the court makes shoddy work of the Kenyan cases it could easily exacerbate the country’s problems, and paradoxically give new life to Africa’s culture of impunity. If justice is seen to be done—whatever the verdicts—then the ICC will at last be living up to its high ideals. And it will be able more credibly to offer its services, not as a panacea, but as a court of last resort in the wider world.
