A reflective look at the year behind us

Before the Christmas holidays were upon us, I organised a quiz for some friends and colleagues in our flat.

It was whilst we were squabbling over the legitimacy of one answer or another – with me repeating for the umpteenth time that Wikipedia is always right and how dare anyone question it – that a colleague of mine asked what had become of the book that I am planning to write about international justice.

“Still in the pipeline,” was my quick riposte.

He then pointed out, quite rightly, that it has been a project I have been talking about now for over a year, with little indication that it has moved on a great deal.

I thought back to how things had stood a year ago. We had just come back from Japan and I was bursting with ideas of the shape that my book would take. I had spent a day in Tokyo, interviewing some truly fascinating people, including the grandson of the foreign minister that ordered the bombing of Pearl Harbour. All of this leant a great deal of colour to my book, and excited me as to the possibilities of where it could head.

Since then, my meandering research has taken me to all sorts of fascinating places.

I have spoken at length to those who remember the Nuremberg trials, including the last surviving prosecutor of the trials, whom I met in Kampala. I have chased after former rebel leaders and wannabe rebel leaders. I have sat under mango trees in northern Uganda, talking with Acholi leaders about what should be done about that mad mystic who is Joseph Kony. I have delved into the most appalling side of human nature – a side that one usually only ever encounters in Hollywood movies, but is tragically as real as you and I. I have travelled through the Rift Valley of Kenya, interviewing the most admirably brave women who have suffered and continue to suffer so much. I have stood by the hospital beds of human rights activists in the Congo, as they spoke of torture and of being entombed in pits with dead or dying prisoners, thinking they would not survive. I have travelled through these countries with former child soldiers, whose bodies and minds have been all but destroyed by what happened to them. I have tried, and failed, to speak to members of the heavy metal band Slayer, whose song about Japanese war crimes appears disturbingly eulogizing. I have spent hours in the labyrinthine reading rooms of the British library, trawling through well-thumbed and not-so-well-thumbed tomes

All of this research I have carried out with admirable gusto and enthusiasm. But it has recently started to occur to me that I am yet to write a single word. Moreover, I still have only a rather sketchy idea of quite where I’m going to be heading with the book. It is going to take a critical look at the concept of international justice – what it means, what it hopes to achieve and why it is flawed (at least, in its current form). It will also grapple with the ridiculous notion that international justice is somehow detached from politics.

But that is it. Ideas, churning around in my head, have yet to settle down in some sort of coherent form. Like some dodgy Birmingham curry after a student’s night out on the town.

This is about to change. My New Year’s resolution is not just to begin this book. It is also to complete it. By year end, I should have a book ready to send to a publisher.

In order to encourage me to start this somewhat daunting project, and to gather my thoughts in some semblance of order, I decided to take a quick look at some of the highlights of the past year, from the perspective of international justice in general and the ICC in particular.

A newfound maturity

When I first started working for IWPR, a year and a half ago, I immediately noticed what was wrong with the ICC. Like so many internationally-led initiatives, it seemed to be a half-baked project that a few committed individuals wanted to steam roll ahead, irrespective of whether the institution was on the right track or not.

It is not difficult to draw parallels between the ICC and the EU, another half-baked project that some well-meaning but impetuous folk have wanted to force upon people’s lives.

Five years ago, it was unthinkable that the EU would ever suddenly break apart. As long as there was a human civilisation to speak of, there would be the EU. The past three years of financial upheaval have changed all that, and the mention of a possible break-up has at least appeared in most mainstream European media. True, the probability given is not very high – 3% seems to be the top figure I have seen quoted – and the papers, even the eurosceptical British ones, are usually urging European leaders not to engage in such folly. But, nonetheless, the fact that such a notion is being at all entertained is surprising; and this is all because the EU decided to introduce the euro ahead of its time, for purely political rather than economic reasons.

The case of the EU strongly suggests how important it is to set these internationally-backed projects off in the right direction right from the start. If this doesn’t happen, such projects can easily fail. And, in my view, the EU, although it is in many respects a noble project, could still fall apart.

International justice is, of course, another worthwhile cause – and, if done right, it can make the world a much better place: a world where warlords do not just rampage across the African wilderness, raping and pillaging at will. It is something that the likes of Ben Ferencz have spent more than 60 years campaigning for. But, if done wrongly, the project will simply fizzle and die. And it will not be resurrected.

This is why it is somewhat heartening to see things starting to improve at the ICC. They still lack a formal communication strategy, but I hear that one is in the pipeline. Moreover, people at the court – particularly the younger recruits – seem to have started to understand that the role of international justice has to better explained to the world at large, and particularly people in the situation countries. They have started to make more use of journalists to convey this message, which is nice to see.

Although the Kampala review conference last summer was nauseatingly self-congratulatory, it did at least focus the world’s attention momentarily on the ICC – and showed that there is support for the court from some unusual quarters. It is not that the court’s critics are hostile to the ICC. It is just that they would like to see it do a much better and more transparent job.

There is some sign that the ICC is finally starting to listen more to such critical voices. I don’t base this statement on concrete evidence. It is more a feeling that I get, working as a journalist in The Hague and dealing with folk at the ICC on an almost daily basis. Time will tell whether such newfound maturity is fleeting, or whether it can help the ICC find its correct place in the world.

Thomas Lubanga

Right from the outset, the Lubanga trial has been a PR disaster for the court.

A relatively low-level war criminal, one could be tempted to wonder why the ICC is dealing with him at all. But, since it is, one would imagine that the Office of the Prosecutor (OTP) would proceed with some judicial caution. The importance of this case should not be underestimated.

As the first case to have opened at the ICC – with much fanfare, one might add – it was always going to be a test of the ICC’s mettle and integrity. The OTP must not get this wrong. This is not about proving that Lubanga is guilty. He may or may not be. It is up to international justice, and not the OTP, to decide that. The OTP, naturally, would like the evidence that it has gathered to stick.

What really matters, though, is not that the OTP can prove its case; it is that the OTP acts properly and professionally at all times. And in this, unfortunately, the court has been found wanting. Twice, prosecutor Luis-Moreno Ocampo has almost lost the Lubanga case because his office had been found to be bending the procedural rules. This cannot continue to happen.

For now, the Lubanga case is back on track – the move to have it thrown out was overruled – but at what cost?

Kenya

The biggest decision that the ICC took in 2010 is, of course, to formally charge six Kenyans with crimes against humanity. It may also prove to be the most consequential… if handled correctly.

The charges pertain to the post-election violence that rocked the country at the end of 2007 and 2008. This was carefully orchestrated, not random, violence – and so there is a strong case to be made for the ICC to get involved, even though the bloodshed was perhaps not as brutal as has been the case in other areas of the world.

The decision could potentially have far-reaching consequences for the future of the country. Ken Wafula, a human rights activist in the east of the country and a supporter of the ICC, firmly believes it has already changed the path that Kenya was to follow. In August, the country calmly went to the polls to vote through a new constitution, even though the likes of William Ruto (one of those now facing ICC charges) was firmly against its adoption.

It is somewhat difficult to determine the extent to which the ICC was responsible for the peaceful adoption of the constitution. But it is clear that people in Kenya are talking about the ICC more and more. This will certainly reign in (at least to some extent) wouldbe troublemakers in the 2012 elections.

Those that aspire to hold office certainly don’t aspire to get there via the ICC.

North Korea

Perhaps the strangest case that the ICC is working on at the moment is that of North Korea. I am presently editing an article about this case, and still trying to understand why on Earth the ICC would publicly open an investigation into the region.

My confusion is caused by two things.

Firstly, it is far from certain that the crimes actually constitute war crimes, by any stretch of the definition. Here we seem to have two attacks from North Korea – one on an island and the other on a military ship. There is a good chance that South Korea provoked the attack. Moreover, civilian casualties were kept to a minimum. Just two, apparently.

Secondly, the ICC has no jurisdiction over North Korea. Okay, South Korea (where the attack happened) is a member. But, since any indictment will be against North Korea, I’m presuming that the ICC would have to have some sort of jurisdiction over where the accused come from.

The relevance of this investigation, and why I have included it in this list, is not so much that the ICC thinks a rather trifling incident constitutes a war crime. Rather, it is that the ICC hopes it can change the future of the world’s policy towards North Korea simply by highlighting the seriousness of the attack.

Watch this space.

Katanga / Ngudjolo

Then let’s not forget the trial of Germain Kantanga and Mathieu Ngudjolo: a case that rumbles drearily on, but still has holds a good deal of significance. Somewhere. If only the proceedings were a little more captivating.

Jean-Pierre Bemba

Last in my list of highlights from 2010 – but by no means list – is the trial of Jean-Pierre Bemba. Finally, here is a warlord that actually matters. If prosecutors can actually make the charges stick, then the world will suddenly take notice of the ICC. The ICC will have finally caught up with a truly powerful figure, whose family has for years enjoyed the protection of various Congolese administrations.

He may or may not be guilty of the war crimes that he is accused off; the ICC, one hopes, will determine this. But the fact that his case has now come to trial shows two important things. Firstly, it shows that men who hold considerable power in a country are no longer safe from the reach of The Hague. It also shows that certain countries at least – in this case, Belgium – are happy to cooperate with dictats from the ICC. In this case, it was the Belgian authorities that arrested the Congolese businessman and swiftly ship if off to The Hague.

Such triumphs, of course, are tempered by the reality that is Congolese political life. Bemba has been a pain in the backside for the administration of Joseph Kabila for some years, and thus he was not too disappointed that the ICC provided an opportunity to get rid of him. Secondly, lets not forget another ICC indictee: Bosco Ntaganda, who the Congolese government has still not given up to the ICC.

Now that Bemba is facing the music of the ICC, it is more crucial than ever that concrete steps are taken to arrest Ntaganda. Until that happens, wannabe warlords might have some justification in thinking that, if they going to all sorts of nasty things, they must make sure that after everything is over they end up on the side of the government.

Happy New Year!


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