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Monday 1 July 2019

Rule of Law

Tortured Justice

The International Criminal Court is in a fight for its life

By Fred Harter

When he first appeared in a courtroom in The Hague, Dominic Ongwen said little, rising from his seat only to confirm his identity and the languages he speaks. Then he listened as the court’s officer read out the charges against him: seven counts of attacking, murdering and enslaving civilians as a commander of the Lord’s Resistance Army, a Ugandan rebel group notorious for turning children into killers and slicing off the lips, noses and ears of its victims.

The session was short, bureaucratic and to the point, lasting little over 45 minutes. Later, once the prosecutors had gathered more evidence, dozens more crimes would be added to Ongwen’s charge sheet, bringing the total count to 70 – the most recorded by an international court. In the most gruesome crime alleged by the prosecution, Ongwen ordered abducted children to bite and then stone an elderly man to death.

Dominic Ongwen, a senior commander in the Lord’s Resistance Army, sits in the court room of the International Criminal Court in The Hague

If the defendant seemed slightly dazzled by the International Criminal Court’s battery of lawyers, judges and computer screens during his first taste of international justice, that was hardly surprising given how he’d got there.

On 6 January 2015, Ongwen had been captured in a remote part of the Central African Republic by members of a rival militia known as the Séléka (itself under investigation by the ICC for war crimes). They handed him to a group of US special forces in the region to help hunt down Joseph Kony, the fundamentalist Christian warlord who has led the LRA’s rampage through central Africa since the 1980s. Three weeks later, wearing a hastily bought suit, Ongwen was led into a courtroom in The Hague for the first time by two burly guards. He remains in custody while his trial continues.

Issued in 2005, the arrest warrants for Ongwen and four others, including Kony, were the first in the ICC’s history. Ten years later prosecutors finally had their man—or one of them. Fatou Bensouda, the chief prosecutor, was triumphant. Ongwen’s transfer to the court, she said at the time, sent a firm message that her office would “not stop until the perpetrators of the most serious crimes of concern to the international community are prosecuted”. It was good news for the court. Most ICC-watchers, however, weren’t convinced.

Joseph Kony, head of the Lord’s Resistance Army, seen here in 2006, is still at large

The ICC has a serious image problem. Founded in Rome in 1998, it was meant to end impunity for rogue warlords and bloodstained presidents alike. It would prosecute those responsible for the very worst atrocities: war crimes, crimes against humanity and genocide.

William Pace, head of the Coalition for the International Criminal Court, captured huge optimism that greeted the court when he said: “The ICC will deter; the ICC will prevent…the ICC will save millions of humans from suffering unspeakably horrible and inhumane death in the coming decades.”

The headquarters of the International Criminal Court in The Hague

Perhaps unsurprisingly, the court has struggled to live up to the hype. Brutal conflicts in Syria, South Sudan and elsewhere cast serious doubt on its ability to deter.

A series of high-profile cases have collapsed, and the court’s judges are striking over pay. Worst of all, African countries, which make up the court’s second biggest geographic block after Europe, have threatened to leave, claiming it unfairly targets the continent. Of 13 situations currently under investigation by ICC prosecutors, only one (Georgia) is not in Africa. A recent attempt to investigate atrocities in Afghanistan has stalled, after fierce American opposition. “The ICC is already dead to us,” John Bolton, the hawkish US national security adviser, said in September.

Even the court’s most enthusiastic supporters are starting to have doubts about its record and leadership. “The system is not working in the way it should be,” says Christian Wenaweser, a former chairman of the ICC’s oversight body. In April Wenaweser and three other previous chairmen signed an open letter calling for a complete overhaul of the court.

How did we get here? Initial momentum behind the ICC was so strong that by the time the 60th country ratified its founding treaty in 2001, requiring the court to start work, it hadn’t had time to hire staff or even find an office. Today it employs nearly 1,000 staff and has an annual budget of about $168.5 million. In its gleaming headquarters in Scheveningen, a leafy suburb of The Hague, are gathered some of the world’s finest legal minds. Bright young things drinking coffee from paper cups in its canteen flit effortlessly between English and French, Italian and Spanish.

Ongwen’s case is a microcosm of ICC cosmopolitanism: citizens of Chile, America, Kenya and Vietnam work to secure justice for crimes committed in an obscure part of northern Uganda.

Of 13 situations currently under investigation by ICC prosecutors, only Georgia is not in Africa

“The court is an exciting place,” says Jim Goldston, head of the Open Society Justice Initiative and a coordinator of prosecutions at the ICC. “It’s full of dedicated people who come to work every morning determined to their best because they realise it’s the job of a lifetime.”

Going after international criminals has proved difficult. The ICC’s founders were flushed with the success of criminal tribunals set up by the UN to try suspects from Rwanda and the former Yugoslavia, which dispensed swift justice to dozens of the worst human rights abusers imaginable.

Unlike those courts, however, the ICC has no effective police force. Whereas prosecutors investigating the butchers of Srebrenica could rely on Nato troops to round up their suspects, the ICC depends on the goodwill of friendly governments. Plenty of arrest warrants have been issued, but most suspects remain at large. Despite Fatou Bensouda’s preferred narrative of the inevitable march of justice, Ongwen’s arrival in The Hague was a slow process characterised by grubby dealings with militiamen, commandos and a lot of diplomatic haggling.

“Rome was kind of a bubble of idealism,” says Dov Jacobs, an international law expert at Leiden University, referring to the ICC’s founding conference. That idealism has since collided head on with grim realities. “It’s like if I sell you a Vauxhall as a Ferrari; at some point you’re going to realise that it doesn’t quite go at the same speed. Whose fault is that?”

In his office at the ICC, Ben Gumpert, a senior prosecutor on the Ongwen case, likens prosecuting international crime to prosecuting organised crime, but without any of the tools usually available to lawyers prosecuting organised criminals—undercover policing, surveillance, informants.

“Essentially we have no access to any of those investigative techniques,” says Gumpert. “And we can only start our investigation after the place where it happened has declared, or it’s obvious, that they can’t handle it themselves; that’s a matter of years at least”. And it gives plenty of time for powerful suspects to tamper with witnesses or for files to disappear. “We’re somewhat hamstrung.”

A man unloads UN food supplies in Ivory Coast. The former president, Laurent Gbabgo, was acquitted for his alleged role in post-election violence

But mistakes and sloppy investigative practices have made such disadvantages worse. In January, judges acquitted former Ivory Coast president Laurent Gbabgo for his alleged role in post-election violence in 2011 that killed 3,000 people.  ICC prosecutors had accused him of ordering murder and gang-rape after he lost the poll and refused to step down. During the trial, judges repeatedly criticised the poor quality of the investigation and its over-reliance on NGO and news reports.

“The judges essentially said you don’t have a case and the guy can go home,” says Wenawesser, the Liechtenstein diplomat. “That reflects poorly on the institutions.” Similar practices also threatened to derail investigations into the Congo and Sudan.

The case of Uhuru Kenyatta, Kenya’s president, has come to define the court. He was accused of helping co-ordinate death squads in violence that killed 1,500 Kenyans and displaced 600,000 more in 2007-08, following a disputed election.

After Kenya’s parliament, which was packed with suspects, voted against an inquiry, Louis Moreno-Ocampo, the court’s first chief prosecutor from 2003-2012, decided to intervene. But he announced his suspects almost immediately, before he had gathered  evidence and built his case. That allowed the accused plenty of time for the accused to tamper with witnesses and rally their supporters against the ICC.

Worse still, Moreno-Ocampo displayed a disregard for detail, preferring to grandstand before the media. He reportedly took just two hours to prepare for his cross-examination of Kenyatta, the trial’s set piece; unsurprisingly, Kenyatta rang rings round him. One former colleague describes his performance as “embarrassing”. “It was pure incompetence,” says another. “We completely bungled the investigation…The Kenyans really played the court.”

Kenya’s Uhuru Kenyatta ‘rang rings round’ ICC prosecutors over allegations involving death squads

Bensouda, the  current chief prosecutor, seems happier confining herself to the minutiae of legal case work. She was Moreno-Ocampo’s deputy for eight years and some question whether she was the right person to succeed him. Dov Jacobs compares the office of the prosecutor to an oil tanker: “Even if you try and change direction, it’s not going to happen overnight.”

The case against Kenyatta was finally thrown out in December 2014, one month before the ICC received custody of Ongwen. Getting their hands on a relatively minor warlord must have felt a poor consolation.

Such results have some observers worried about the future of the court. To date, the court’s prosecutors have only secured three convictions for those core crimes, and one of those has been recently overturned—that of Jean-Pierre Bemba in July 2018, a former Congolese vice president accused of overseeing a campaign of systematic sexual violence in the Central African Republic. Bensouda doesn’t have her predecessor’s instinct for the spotlight but she appears to share with Moreno-Ocampo a willingness to accept due process as an end in itself, when what justice demands is the successful prosecution of criminals.

The conviction of Jean-Pierre Bemba, a former Congolese vice president, has been overturned

“One acquittal should not be taken as a sign of failure; an acquittal in a trial is a perfectly reasonable result,” says Jim Goldston, head of the Open Society Justice Initiative and a former prosecutor at the ICC. “But at the same time, if you look at what the court has achieved so far, its not the kind of record one would have hoped the ICC to have achieved at this point in its history.” One current staffer went further, telling me that following high profile blow-ups such as the Gbagbo case “there is a sense that the court has imploded”.

Initially, African countries were among the most vigorous proponents of the ICC. When it was set up Archbishop Desmond Tutu hailed it as “Africa’s court”. Young democracies such as Lesotho and Malawi saw it as a way to hold former dictators to account. Senegal became the first country to ratify its treaty.

But the attitudes of African leaders towards the ICC have hardened after the Kenyatta fiasco. Its arrest warrant for Omar al-Bashir, issued in 2009 for crimes in Darfur and obliging ICC members to arrest the former Sudanese president, was already making regional diplomacy awkward when Kenyatta launched his campaign against the ICC. After he denounced the court as the “toy of declining imperial powers” at his inauguration as Kenya’s president in 2013, others readily joined in.

Sudanese soldiers in Darfur, following a visit by President Omar al-Bashir

In February 2016, the African Union (AU) passed a symbolic motion calling on members to leave the court. Later that year Gambia – whose former dictator called the ICC the “International Caucasian Court” – decided to leave. So did Burundi. Negotiations are underway to prevent South Africa from quitting. Even President Yoweri Museveni of Uganda, whose officials are assisting ICC prosecutors on the Ongwen case, has taken to bashing the court as a “bunch of useless people”.

The motives of African leaders denouncing the ICC are often laughably transparent. For instance, the AU motion to leave the court was overseen by Idriss Déby of Chad, whose human rights credentials are hardly gleaming. ICC staff argue, with reason, that by investigating atrocities in Africa they are simply doing their job: the continent is the court’s second largest area of jurisdiction since most African countries are members, and it has more than its fair share of war, death and misery.

“I don’t think there’s any validity to them,” says an former ICC staffer when asked about claims the court is gunning for Africa. But the anti-Africa label has stuck.

The smouldering remains of a village in Sudan. The ICC denies it is anti-Africa

Under Bensouda, a former Gambian justice minister, the prosecutor’s office has sought to diversify its caseload by looking into crimes elsewhere. In 2014 she opened a preliminary investigation into Israel’s conduct in Gaza.

A year later, just as African opposition was reaching fever pitch, the chief prosecutor reopened inquiries into alleged misconduct by British troops in Iraq. Her biggest recent initiative has been to request permission to open a full-blown investigation into Afghanistan, to examine atrocities mostly committed by the Taliban and Afghan troops but including those allegedly perpetrated American soldiers and intelligence operatives.

The ICC has opened a preliminary investigation into Israel’s conduct in Gaza

The move has met stiff resistance, to put it mildly. The Trump administration has threatened sanctions against ICC judges, and in April revoked the chief prosecutor’s US visa to block her inquiries. The animus is overwhelmingly Bolton’s.  He was described to me by a former legal advisor to the National Security Council under the younger President Bush as “the hardest of the hardliners against the ICC”, convinced that its main purpose from the outset was the constrain the US.

Soon after the American intervention the court’s own judges blocked the Afghanistan investigation, ruling that opening one would not serve “interests of justice” since American opposition meant the chances of success would be slim. The decision appalled many staffers. One describes it as “like a slap in the face”.

It also helped underline the ICC’s anti-Africa image. “The vast majority of people don’t think the ICC will ever confront the most powerful states,” says Mark Kersten, of the University of Toronto. In Afghanistan, “the court had the opportunity to exceed people’s expectations and do something that was unexpected of it”.

A common thread that emerges from conversations with ICC lawyers is their intensely narrow focus on the legal side of their work. They care about precedents, statues and procedure. Diplomatic haggling and spin seem alien concepts, even though their suspects tend to be experts at using spin to undermine the court. Asked about these darker arts, one lawyer replies: “I’m afraid I don’t know much about the politics side”.

People watch Uhuru Kenyatta appearing in the ICC

In many ways, that’s understandable. In the empty auditorium that on busier days hosts the press conferences at the ICC, Francisco Cox, a lawyer representing 2,605 victims in the Ongwen case, tells me that debates about politics and bias seem trivial when he meets clients in northern Uganda, many of whom have survived rape or lost friends and relatives to LRA violence.

They have many complaints about the ICC: some unsuccessfully lobbied to have male rape included on the charge sheet; others must walk for over a day to attend meetings and get updates on proceedings. But none mention the court’s emphasis on Africa. “The amount of people who show up is extraordinary,” says Cox. “This is their only chance for justice.”

Further reading

– This excellent New York Times feature on ICC in Kenya tells the story of how the court’s defining case fell apart.

– For more on the politics behind the ICC’s anti-Africa label and its struggles to deliver justice, try this London Review of Books article by a professor of African studies at Duke University.

– If you feel like getting into the weeds, this post on the Just Security blog by Harvard law professor and former ICC prosecutor Alex Whiting analyses the significance of the judges’ decision to block an investigation in Afghanistan, and asks what it means for the court.