The International Criminal Court (ICC) appears set to break ground on its first case. It recently began pretrial hearings to prosecute a Congolese citizen, Thomas Lubanga Dyilo, accused of conscripting child soldiers to fight in the Democratic Republic of Congo’s civil war. The Court, which relies on states to carry out its warrants, was only able to proceed with Lubanga’s case because the Congolese government arrested him. But the Ugandan and Sudanese governments have limited the ICC’s ability to move forward with cases in their countries, provoking questions about the newborn Court’s ability to broker international justice. This new Backgrounder examines the ICC cases in Africa and recent criticism of the Court.
In Darfur, the ICC’s investigations bear the imprimatur (IRIN) of the UN Security Council. Yet Sudan has actively thwarted its proceedings, and, as a result, no indictments have been handed down. In Uganda, four outstanding arrest warrants for top-level members of the Lord’s Resistance Army (LRA), including leader Joseph Kony, await action by the Ugandan authorities. But the LRA is demanding these warrants be dropped before it engages in full peace talks. The Ugandan government—which itself referred the situation to the ICC—has said it will support dropping the charges if Kony surrenders.
But the ICC says the Ugandan government lacks the authority (Guardian) to drop the ICC’s charges or revoke the warrants once they are issued. And international legal experts point out that war crimes charges rule out any amnesty under international law. Under Chapter VII of its Charter, the UN Security Council can order a twelve-month suspension of prosecution. But many experts think such a suspension unlikely. Kony, who earned a terrifying reputation for kidnapping children and enlisting them in his army or forcing them into sexual slavery, stands accused of thirty-three charges, including twelve counts of crimes against humanity. “Why would anyone want to help him out?” asks John L. Washburn, convener of the American NGO Coalition for the ICC, in an interview with CFR.org.
Many Ugandans, however, hope the charges against the LRA will be dropped. People in the northern part of the country fear the ICC is hindering the peace process and want to bring the LRA to justice using traditional reconciliation rituals that involve the offending party accepting responsibility for his actions and asking forgiveness (IWPR). The Economist argues the ICC might be able to transfer the case back to Uganda for a hybrid civil-law justice system and traditional reconciliation ceremony. But proponents of the ICC argue the Court’s arrest warrants are the only reason the LRA agreed to a ceasefire in August and is considering peace talks. Under such a view, offering amnesty or a domestic trial would not foster peace.
If the ICC decides to persevere with its indictments in Uganda, the Court needs the cooperation of states that can arrest the indicted LRA leaders. “It is in some ways mission impossible,” Richard Dicker, the head of Human Rights Watch’s international justice program, told the Financial Times. While recent criticism of the Court has been particularly vociferous, particularly from nongovernmental groups in Africa who supported its formation, one country that seems to be warming to the ICC is the United States. After strongly opposing the Court, the United States has expressed support for the Court’s investigation in Darfur. Last week, Washington lifted a military training ban (USAToday) on twenty-one countries imposed as punishment for refusing to sign agreements protecting U.S. soldiers from the ICC.