The fallacy of international criminal justice

Former child soldiers in DRC (c) L Rose

Following the commotion of the Kony 2012 campaign, much of the UK media seem oddly unconcerned that the International Criminal Court (ICC) has found Thomas Lubanga, a major protagonist in the conflict in the Democratic Republic of Congo (DRC), guilty of using child soldiers.

Next month, Charles Taylor is due to find out whether he is guilty of the charges brought against him. Taylor's case has been heard at the Special Court for Sierra Leone (SCSL) in The Hague. Like cases held at the ICC, this case has taken place in a geographical space far removed from the sphere where crimes were carried out, and where the victims continue to live.

I was in Sierra Leone when Taylor was first arrested and transferred to Freetown. I have also attended and reported on one of the trials (Sam Hinga Norman) held at SCSL. My own perspective is that at the local level, justice meted out in this way does not work.

Many in Freetown expressed their public support for Norman. Despite the fact that there is a strong relationship, and a lot of goodwill, between Sierra Leone and the UK, even though the UK was instrumental in pursuing charges against all accused of war crimes, people argued that Norman was a hero.

For them, still shell-shocked at the brutalities waged during the previous decade, he had helped save (the soul of) Sierra Leone. In other words, they believed that Norman was a bringer of justice. That Western powers prosecuted him only divided the notions of Western and African justice.

The Foundation for Law, Justice and Society produced a series of essays on international justice and Africa written between 2008-2010. In his essay, 'International Criminal Justice and Non-Western Cultures', Tim Kelsall alerts us to the following anthropological quirks:

...It is difficult for most of us to imagine how unnerving international trials must be for many African witnesses, who find themselves miles from home, in a courtroom of extraordinary grandeur, confronted with robed judges and lawyers who speak a foreign language, and who subject them to highly unusual communicative practices including frequently hostile cross-examination. It is no wonder that getting clear testimony in such circumstances has often proved difficult (Cryer 2007), a problem compounded in contexts, not uncommon in Africa, where secrecy is prized as a high social ideal...

A project of the Open Society Justice Initiative, The Trial of Charles Taylor defendant offers further evidence of the problems that the international justice system faces, judging by the comments in several recent posts:

What do these ppl care about SL ppl anyways? Look at the volume of ignorance they’ve shown for human rights in other countries! (TJ, 09/03/2012) 

We were told Iraq had WEAPON OF MASS DESTRUCTION……who has been brought to JUSTICE for such MASS KILLINGS??? (Noko4, 10/03/2012)

It is regrettable to be aware of the fact that Mr Taylor was charge for the Sierra Leon civil war that kill thousands and cause thousands to lost body parts that was carry out by the sierra Leoners themselves and Mr Taylor was never charge for the brutal killing of Liberians and the destruction that were carry out by Mr Taylor and his forces in Liberia...Liberia need justice we do not want Taylor back in Liberia. (Samuel King, 03/03/2012)

The final comment reveals a paradox. On the one hand, the site is supposed to engage and include Sierra Leoneans in a discussion of the war as another means of achieving justice, yet it is Liberian voices that dominate, lamenting their own lack of access to international justice.

Add to that, the fact that the vast majority of Sierra Leoneans do not have access to the web, and those that do receive a cumbersome service, and it is not a surprise that many of those posting comments seem to live elsewhere (mainly the U.S.A.).

A daily news chalkboard in Liberia (c) Lt. Col. Terry VandenDolder

Although attempts have been made to reach out to those most affected, the international justice system still relies too heavily on Westernised ideas. In his analysis of the success and failures of the SCSL, Alpha Seesay recognises that Sierra Leonean victims were too far removed from the process; as well as bring geographically distant, the court had problems streaming the trial and it made no funds available for an outreach programme.

The ICC has been criticised as imperialist by various African governments. Several comments on The Trial of Charles Taylor defendant also refer to the iniquitous manner in which indictments and prosecutions only seem applicable to African leaders.

Whilst some locals may see the the ICC, and the reasons behind it, as a force for good, they are also frustrated at a lack of transparency as to whose justice is sought and why it does not include everyone. In places like Liberia, where traditional media outlets reach more people in more meaningful ways than the internet, potentially, this can do serious damage to an international justice system regardless of any outreach programme.

The U.S.A., the world's foremost human rights advocate, is not a member of the ICC. Most significantly, it threatens military action against the ICC if any of its citizens are brought before the court. This incompatible approach to human rights undermines the international criminal justice system.

Just as Okechukwu Oko posits in 'The Limits of Prosecutions', I believe that whilst prosecuting some African leaders might bring about some accountability, any form of international justice system needs to take into account the social, political and cultural norms that prevail across Africa. This should apply equally to leaders from the Americas, Asia or Eastern Europe.

Without doing so, the current international criminal justice system will fail to deliver justice to those affected by war crimes and crimes against humanity.