Acknowledgements
After a decade of thinking about this topic, these acknowledgements are the last words I write. Yet they too have incurred many thoughts, as no project like this can be carried out without debts of many kinds. Most of these cannot be repaid, but the least I can do is offer thanks. First, these go to the many individuals and informants that have given shape to this research by sharing their time, ideas, and insights. Any language that seeks to bring an end to violence and suffering is useful; similarly, the pursuit of justice is a virtuous one. It is therefore out of deepest respect that I now attempt to offer an understanding of this pursuit.
This book is an adaptation of my PhD thesis defended at the University of Oslo. To be able to spend my time thinking, travelling, and dwelling under the auspices of a PhD Fellowship at the University of Oslo is a position of profound privilege. It is a position very far from the violence with which this book is concerned, although not from the spaces from where justice is exported. Such global inequalities should never cease to stir up activism and reflection.
Two people have been the pillars of the research project, and have followed the trajectory of my interests and research for many years. I will forever be grateful for their intelligence, kindness, and unflagging faith in this project, and my ability to do it. Katja Franko’s analytical, thoughtful, and thorough feedback has given me the courage without which this book could not have been written. That this project was conceived at all is in large part due to Kristin Bergtora Sandvik. She has taught me how to be a researcher and given me her forthright advice on this project and wider concerns. The support of these two women has inspired me to work harder and better.
I am also indebted to a number of individuals who have generously engaged with draft versions of sections and chapters that have found its way into this book. I would like to thank Chrisje Brants, Mikkel Jarle Christensen, Edme Dominguez, Mark Drumbl, Richard Georgi, Maj Grasten, Jakob v. H. Holterman, Astrid Kjelgaard-Pedersen, Mikael Rask Madsen, Jed Odermatt,
Ole Jacob Sending, and Achilles Skordas. Carolyn Hoyle, Rene van Scheveningen, and Ole Hammesvik provided critical, excellent comments in their roles as my PhD adjudication committee. Their insights have been essential to adapting the manuscript. Thank you!
I am likewise grateful to my colleagues at the Department of Criminology and Sociology of Law, and especially to Heidi Mork Lomell, Turid Eikvam, Eivind Roll, May-Len Skilbrei, and Per Jørgen Ystehede for administrative support throughout the years. Thomas Ugelvik managed to be a mentor and friend at the same time. Anette Bringedal Houge became a precious ally, not only in international criminology, but also in life. Both of them provided invaluable feedback throughout the research process and on earlier chapters of the manuscript. Special thanks also to Sigmund Book Mohn, Kjersti Ericsson, Liv Finstad, Sverre Flaatten, Elise Koppang Frøjd, Hedda Giertsen, Vidar Halvorsen, Synnøve Jahnsen, Nicolay B. Johansen, Jenny Maria Lundgaard, Thomas Mathiesen, Marte Rua, Sveinung Sandberg, Lill Scherdin, Peter Scharff Smith, and Ragnhild Sollund. I am also thankful to Nils Christie, whose teachings and thoughts inspired the first seeds of this intellectual project, and whose ideas continue to be a source of critical reflection.
I have benefited greatly from a number of other academic institutions, affiliations, and research networks. In 2013, I was a Visiting Research Fellow at the Center for International Criminal Justice at the Vrije Universiteit in Amsterdam. Thanks to Joris van Wijk for his hospitality, humour and knowledge—and for introducing me to Marieke de Hoon, Barbora Holá, Annika van Baar, and Maartje Weerdesteijn. In 2014, I was an Academic Visitor at the Centre for Criminology at Oxford University, which enabled me to write in one of the most intellectually inspiring places possible. In 2018, I was a Visiting Researcher at iCourts at the University of Copenhagen, where the entire centre generously contributed to a critical seminar on my draft manuscript. The Research School in Peace and Conflict at PRIO, and especially Kristoffer Lidén and Lynn Nygaard, deserve recognition for providing an early interdisciplinary haven for young and early career research vagabonds. Throughout the years, I have benefited from the feedback and intellectual engagements with numerous scholars from the European Society of Criminology (the working group on Atrocity Crimes and Transitional Justice especially), the International Studies Association, and the COST action on ‘International Law
Acknowledgements
between Constitutionalism and Fragmentation’. I would also like to extend my thanks to the OUP team and the Clarendon Studies in Criminology editors for their feedback and assistance throughout the publication process.
I have received generous support from a variety of Norwegian and international funds and fellowships: The Tokyo Foundation’s Royichi Sasakawa Young Leaders Fellowship Fund, the Scandinavian Research Council for Criminology Travel Grant, Den norske banks fond for det Juridiske fakultet ved Universitetet i Oslo, Borgermester Edvard Christies legat, Ingmund Kirkerud legat, Pastor Harald Kallevigs legat, Assessor L. W. Knagenhjelm og fru Knagenhjelms født Rolls legat, Det juridiske fakultets reisefond av 1973, and the Research Group on International Law at the University of Oslo. PluriCourts funded my fieldwork in Uganda and deserves a special thank you, and especially Cecilie M. Bailliet, Sofie A.E. Høgestøl, Silje Aambø Langvatn, and Nobuo Hayashi. With the latter I also had entertaining conversations about international criminal law and justice over many years.
A number of other people have also helped and contributed, though I cannot name them all. However, Morten Bergsmo first put me onto the idea of a sociology of international criminal justice more than a decade ago, for which I owe him a great debt of thanks, and for further inspiring conversations since. I am also grateful for the thought-provoking conversations I had with Bert van Roermund while visiting Rwanda, and to Harriet Loum, Hege Rytter Jacobsen and Lone Jessen, who put me in touch with friends and family in Uganda. Henrik Werenskiold provided critical support at the end of the research project. Daphne Day cleaned up the language. Jakob, my love, has given me reason to finish.
The book has included work abroad and away, sometimes for lengthy periods, sometimes in places that might be considered volatile. Often I’ve been distant too. Therefore, this has at times been difficult for dear ones, and I am truly indebted to my family and my extraordinary friends for their support and patience. I cannot love you more, but I’ll try to love you better. None of this would have been possible without the solid ground provided by my parents Gerd and Thor Otto Lohne, dearest Mariann, John Roald, Ian Emiil, and mormor. Finally, to Erik Baltzer Osvik, who spent his life fighting for the rights of others. The world might be unfair, but it stood a better chance with him in it. The book is dedicated to his memory.
List of Abbreviations
AI Amnesty International
ARLPI Acholi Religious Leaders Peace Initiative
ASP Assembly of States Parties
AU African Union
CAR Central African Republic
CEPEJ European Commission for the Efficiency of Justice
CICC Coalition for the International Criminal Court
DRC Democratic Republic of the Congo
ECOSOC United Nations Economic and Social Council
FIDH International Federation for Human Rights
HRW Human Rights Watch
HURINET-U Human Rights Network—Uganda
IBA International Bar Association
ICC International Criminal Court
ICJ International Criminal Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
LRA Lord’s Resistance Army
MENA Middle Eastern and North African
MICT UN Mechanism for International Criminal Tribunals
NGO Non-governmental organisation
NPWJ No Peace Without Justice
NRC Norwegian Refugee Council
OPCW Organisation for the Prohibition of Chemical Weapons
OSJI Open Society Justice Initiative
OTP Office of The Prosecutor
PGA Parliamentarians for Global Action
PSVI Preventing Sexual Violence Initiative
SC Security Council
xvi List of Abbreviations
SCSL Special Court for Sierra Leone
SGBV Sexual and Gender-Based Violence
TAN Transnational Advocacy Networks
TFV Trust Fund for Victims
UCICC Ugandan Coalition for the International Criminal Court
UCP Union of Congolese Patriots
UIA Union of International Associations
UN United Nations
UNSC United Nations Security Council
VRWG Victims’ Rights Working Group
WFM-IGP
World Federalist Movement-Institute for Global Policy
WIGJ Women’s Initiative for Gender Justice
In contemporary societies, where inequalities have reached an unprecedented level, humanitarianism elicits the fantasy of a global moral community that may still be viable and the expectation that solidarity may have redeeming powers.
This secular imaginary of communion and redemption implies a sudden awareness of the fundament unequal human condition and an ethical necessity to not remain passive about it in the name of solidarity—however ephemeral this awareness is, and whatever limited impact this necessity has.
Humanitarianism has this remarkable capacity: it fugaciously and illusorily bridges the contradictions of our world, and makes the intolerableness of its injustices somewhat more bearable.
Didier Fassin
Humanitarian Reason (2012: xii)
The universal offers us the chance to participate in the global stream of humanity. We can’t turn it down.
Anna Lowenhaupt Tsing Friction (2005: 1)
1 Locating International Criminal Justice Connections, Forces, Imaginations
We’re mingling over canapés and drinks as a jazz trio plays in the background—diplomats, legal practitioners from the International Criminal Court (ICC), and representatives from non-governmental organizations (NGOs). As the trio finish their set, the Convener for the NGO Coalition for the International Criminal Court (CICC), William (Bill) Pace, steps onto the podium. As we gather around him, he reminds us of the responsibilities resting on our shoulders: ‘History will write in awe about the achievements of international justice—unless we fail!’ The other host of the night, the Mayor of The Hague, Jozias van Aartsen, follows him, declaring that ‘the ICC represents the best of what the international community has achieved’. At this moment in time however, he says it is ever more important to defend the idea of the Court, highlighting the role of the city of The Hague as a worldwide knowledge hub for international criminal justice, and the significance of NGOs in this pursuit.
According to their homepage, the CICC—a ‘global civil society network of over 2,500 member organizations’—‘led the successful campaign to set up the International Criminal Court for war crimes, crimes against humanity, and genocide . . . [and are] continuing to fight for global justice through national courts and the now well-established ICC’.1 From its seat in The Hague, in the Netherlands, the ICC began its work in 2002, and has indeed jurisdiction over crimes against humanity, genocide, and war crimes on the territories and over the citizens of states that have ratified
1 http://www.coalitionfortheicc.org/about-coalition-0 (accessed 11 April 2018).
Advocates of Humanity. Kjersti Lohne, Oxford University Press (2019). © Kjersti Lohne.
10.1093/oso/9780198818748.003.0001
its founding Rome Statute.2 Today, 123 states are members of the Court, and with that have given up some of their monopoly of the use of force. Criminal punishment has ‘gone global’.
This book is about this development, and more specifically about the signification of the relationship between a purported ‘global civil society’ with global criminal justice-making. What does it mean when it is said that the ICC is a ‘global civil society achievement’ (e.g. Glasius, 2006)—who are these actors, how do they imagine global justice through the ICC, and what do these connections imply for the meaning and social functions of punishment at the global level of analysis? To this end, the book offers an analysis of transnational networks in their mobilization for global justice through the ICC.
NGOs fulfil a number of functions in international criminal justice that, arguably, would be inconceivable at the national level of criminal justice (see Tomczak, 2016). In addition to their ‘traditional’ roles of advocacy and agenda-setting, NGOs identify and represent victims to the Court; they provide evidence and amicus curia briefs; do ‘outreach’ vis-à-vis affected communities; lobby states for financial and political support of the Court; and draft penal codes and promote their implementation in domestic systems of criminal justice—to give but a few examples. Yet more than just functioning as ‘judicial institution builders’ (Haddad, 2012), NGOs are presumed to provide the field of international criminal justice with moral authority (Dixon and Tenove, 2013). By speaking on behalf of victims ‘everywhere’, human rights NGOs produce moral outrage at distant suffering while asserting cosmopolitan notions of solidarity and justice in an ultimately state-centric international order. As such, their embrace of international criminal justice is considered part of the advance towards a more ‘people-empowering’ international rule of law (Glasius, 2002)—a global criminal order created by and for ‘humanity’ rather than the interests of nation states.
To discern the social organization of this connection, I have approached the transnational networks of NGOs advocating for the ICC as an ethnographic object, albeit a messy and multi-sited one. A central objective is to explore how connections are made, and how forces and imaginations of global (criminal) justice travel.
2 Since 17 July 2018, the ICC also has jurisdiction over states that have ratified the amendment to the Rome Statute on the crime of aggression (see Kreß, 2018).
How do NGOs ‘connect’ for justice, and what are the aspects of global social organization that enable these linkages and ruptures? Ideas of global (criminal) justice travel with and across people, organizations, and the internet. Likewise, the work of international criminal justice is multi-sited. Conflict and mass violence in one part of the world are transported into the courtrooms in another; here they are rendered intelligible through law and legal experts who, with reason and logic, search for justice in the form of individual accountability. This trajectory of global justice-making is imagined to come full circle once the deliberations are over, when blame has been attributed, and ‘justice’ is dispersed back to the site of conflict and mass violence. The multi-sited materiality of the ICC, and of the field of international criminal justice generally, is thus symptomatic of the ‘unbundling’ of the local as a container of the social (Sassen, 2007). ‘Traditional’ ethnographic approaches that equate social phenomena with limited and bounded localities no longer suffice (Burawoy, 2000; Anders, 2007; Faubion and Marcus, 2009).
While research has spanned the nations of Belgium, the Netherlands, Norway, Rwanda, Uganda, and the UK, The Hague—as the centre of global justice-making—has been the primary perspective in research and analysis. There, multiple locations make up analytical sites; from the ICC and other courts in the city, the ICC Assembly of States Parties (ASP) diplomatic meetings in the World Forum, NGO headquarters and satellite offices, to the plethora of research institutes and informal sites of restaurants, pubs, and cafés around the city. The description of the CICC and The Hague Municipality’s reception demonstrates the potential of such an approach. To further reflect the field’s (dis) connections, I traced the network structure of the CICC, focusing on their Secretariat in The Hague; their core group of Steering Committee NGO members—most of whom had permanent representation in The Hague (or Brussels or London); and one case of centre-periphery relations, tracing its regional networks to Africa, its national networks to Uganda, and finally to its local network in Gulu in northern Uganda—one of the sites of mass violence that is the object of global justice-making at the ICC. Analytically, this approach involved a shift from an ethnographic focus on ‘site’ to the study of international criminal justice as ‘field’, meaning the relation between sites enables insights into the connections and disconnections of the whole (Burawoy, 2001).
Research Aims
The research for this book had already begun during my postgraduate work on the ICC’s intervention in northern Uganda, a region tormented by a protracted violent conflict between the Ugandan government and the Lord’s Resistance Army (LRA)— with the civilian Acholi population in the midst of it. As peace talks between the Ugandan government and the LRA were progressing, the ICC issued arrest warrants for five of the top commanders of the LRA. However, the ICC indictments turned out to be a major obstacle to achieving peace and security in the region, as the LRA refused to lay down arms and continue peace negotiations with the threat of arrests hanging over their heads. The situation in northern Uganda thus came to be, in the words of a contemporary observer, ‘something of a battleground between those who have been promoting the immediate application of mechanisms of retributive justice, and those who feel that this particular way of pursuing justice substantially jeopardises the prospects of peace’ (Okello, 2007: 1). When I explored the different conceptualizations of justice that characterized this ‘battleground’, the role of international human rights NGOs as carriers of discourses on justice emerged as a principal finding—and one that suggested further research. International human rights NGOs represented and promoted specific modes of thinking about justice and punishment, and a core objective of this research has been to unpack what these mentalities and sensibilities consist of. Questions of values and meanings attributed to international criminal justice has thus guided this research, particularly as regards its role as an expression of ‘the international’ will to punish. To whom is it meaningful, and why?
To this end, the central aim of this book is to explore how the role of international human rights NGOs in international criminal justice yields empirical insight into the meaning of punishment at the global level of analysis. This overarching objective has been guided by way of three separate yet interrelated sets of analytic questions:
1. What are the roles of NGOs in international criminal justice?
2. What characterizes punishment ‘gone global’?
3. How is international criminal justice constituted by and of ‘the global’?
1. What are the roles of NGOs in international criminal justice?
International law is no longer just about states. Triggered by globalization processes and a dispersion of political power in the wake of the Cold War, non-state actors began to feature more prominently in international treaty-making in the 1990s. The first act of what commentators coined the ‘new diplomacy’ (Davenport, 2002)— the cooperation of NGOs and middle-sized liberal democracies— created the Mine Ban Treaty during the Ottowa Convention in 1997. The second act followed the year after, in Rome during the summer of 1998, where the Rome Statute for the ICC was drafted at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Much has been written about the success of NGOs—and human rights NGOs in particular—in Rome, and the celebration of a global and permanent international criminal court as a ‘global civil society achievement’ (Glasius, 2006) or even, an ‘achievement of the masses organized’ (Cakmak, 2008: 373; see also Barrow, 2004; Pearson, 2006; Watkins and Welch, 2011). Much less is known, however, about the continued significance of NGOs upon the Rome Statute system of justice (but see Haddad, 2013; De Silva, 2017) and for the development and dynamics embedded in the project of international criminal justice generally. What do they do for the ‘fight against impunity’ today? What exactly do they mean when they call for the ICC to do ‘global justice’? What are the social conditions that facilitate or hamper their participation in global justice-making? Who are they? This book discerns the manner of NGO organization for international criminal justice as well as the ideas and values that underpin their engagement, with a view to how such an empirical inquiry yields insight into the sociological understanding of the field of international criminal justice. As such, the book continues the story of the purported ‘global civil society’ influence upon the Rome Statute system of justice.
2. What characterizes punishment ‘gone global’?
Reflecting disciplinary divisions created by the increasingly slippery distinction between the international and the national, scholars of international law and international relations dominate the study of
international criminal justice. There is a conspicuous neglect of this field by sociology of punishment (but see Lohne, 2018b; Savelsberg, 2018), in spite of the fact that international criminal justice fundamentally upsets the truism in criminological thought that the power to punish prevails in the nation state (Zedner, 2016). However, a question must be asked about the meanings, morals, and values that inform criminal punishment as the practical solution to global disorder, once the judicial mandate to punish is transferred from the nation state to the ‘international community’. Who and what animate penal policy and punishment when it is ‘disembedded’ from the nation state? The lack of scholarship on the meaning of international punishment, and its signification for the making of global social order, is a disconnect that is also reflected in the field of global justice-making itself. Later chapters will show that while international human rights NGOs are indispensable advocates of the international criminal justice project, there is a lack of thinking about the role of punishment. This is all the more curious as punishment in global justice-making takes on a different character by being somewhat disconnected from the legitimacy of the nation state, and, not least by being expected to address harm of a significantly graver scale than is generally the case with domestic criminal justice. This book is thus the first of its kind to approach international criminal justice from the perspective of sociology of punishment, and, by extension, offer an interpretation of international criminal justice’s significance for understanding the traits and characteristics of penal power under the global condition.
3. How is international criminal justice constituted by and of the global?
The ICC is a global institution, both in the sense that it has a global reach and because it concerns and connects global processes: contexts of conflict and violence are subject to judicial deliberation thousands of miles away, spanning territory, jurisdiction, and sovereignty. As such, a central aim of approaching international criminal justice in social and cultural terms is to situate the study of punishment at the heart of an inquiry into global social organization and pursuit of global order. Paraphrasing David Garland (1990b: 20), such an approach avoids the absurdity of thinking of international criminal justice as if it had
nothing to do with international crimes, without falling into the trap of thinking of it solely as a ‘fight against impunity’ for such harms. This book is thus a study of global (dis)connections, forces, and imaginations: imaginations of global justice seized through the connections of transnational networks, and driven by the force of universals—of law, of human rights, and of the notion of humanity.
In approaching the global as the scale of analysis, some assumptions must be accounted for. First, the global is often framed in opposition to the national, as if the two were mutually exclusive entities. These are generally assumed to belong to scalar hierarchies, where the global is imagined as ‘above’ the national (Sassen, 2007). With these scalar hierarchies follows another set of assumptions: the global is associated with relevance ‘beyond’ the bounded and limited, singular and particular. In this manner, the global invokes the work of the universal. As examples of global forces, one speaks of universal human rights and crimes against humanity, notions of absolute and abstract truths that are unquestionable by nature of their own unidentified essence (Douzinas, 2007b). The ICC was set up to protect these universals, enabled by globalization’s forging of people and ideas across space: a mobilization for universals realized through global connections. Tsing (2005: 7) however, poses an unsettling question: ‘How can universals be so effective in forging global connections if they posit an already united world in which the work of connection is unnecessary?’ If justice, human rights, and humanity are selfevident categorical truths, why do they need delineation, implementation, and intervention? Why is there a need for experts and legal professionals—or even advocates of humanity to recognize that which is universal? Letting go of the universal as an abstract and self-fulfilling truth enables attention to specific situations, and to see invocation of the universal as aspirations, as always unfinished achievements, instead of articulations of what is already ‘out there’—of pre-formed law. Then, one may observe how universal aspirations travel, in time and across distances, sometimes without effort, sometimes with friction. I take this travel to be my ethnographic object (Tsing, 2005: 1–2, 7). In recognizing the invocation of the universal as a global force, the global is, thus, always unfinished (Urry, 2002; Aas, 2013). In this manner, my concern is with the making of the global.
International Criminal Justice in Context
The creation of the international military tribunals in Nuremberg and Tokyo following the Second World War marks the birth of the international criminal justice system. This was when Justice Robert H. Jackson, in his opening statement at the Military Tribunal at Nuremberg, declared that ‘four great nations, flushed with victory and stung with injury stay the hands of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason’. Power, however, would almost immediately come to triumph over the international reason to which Justice Jackson referred, as the Cold War paralysed whatever efforts made towards the realization of an international criminal justice. In the following four decades the idea remained dormant and hidden in various UN commissions. Yet, as the Cold War came to an end, at a time when Europe faced another genocide, international criminal justice would again begin to take shape (for historical orgins, see Bassiouni, 1998; Bergsmo et al., 2014). Since then, another seven international criminal courts have been established, including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set up by the UN in 1993 and 1994, respectively (for an empirical overview, see Smeulers et al., 2013). As ad hoc institutions, they have recently both closed down, although the UN Mechanism for International Criminal Justice maintains essential functions such as tracking fugitives, appeals, supervision of sentences, and protection of victims and witnesses.3 In contrast to the ICTY and the ICTR, the Special Court for Sierra Leone, the Special Panels of Dili in East Timor, the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon are all, to varying degrees, ‘hybrid’, or ‘mixed’ courts, meaning they contain elements of both domestic and international criminal law, are staffed by international and domestic personnel, and are usually located within the target state (for an introduction to international criminal law, see Van Schaack and Slye, 2010).
The ICC is the first permanent international criminal court. Since 2002, the Court has opened twenty-six cases—all against
3 See https://www.irmct.org/en (accessed 4 August 2019).
African nationals—in eleven situations under investigation. At the time of research, the ICC had opened investigations in nine situations and states: Côte D’Ivoire, Central African Republic (CAR), Democratic Republic of Congo (DRC), Kenya, Libya, Mali, Sudan, Uganda, and CAR II. Since then, the Court has also opened investigations into the situation in Georgia and Burundi. There have been three convictions and three acquittals.4 Most of the defendants remain at large, or have had their charges vacated, withdrawn, or not confirmed by the Pre-Trial Chambers because of, among other things, lack of access to evidence or due to their passing.
The book discusses the situations and cases at the ICC in various levels of detail, focusing on the situations in East Africa rather than those in the central and northern territories of the African continent. This has a practical dimension—giving full details of all the situations before the Court would probably not only cause data overload, but also fail to give more than a cursory overview of the issues at stake. The variation also has an empirical dimension. During the research, the situations in the territories of East Africa were given more attention in the field than
4 Thomas Lubanga Dyilo (Lubanga) was found guilty on 14 March 2012 for charges of the war crimes of enlisting and conscripting child soldiers in DRC. He was sentenced to fourteen years of imprisonment. On 7 March 2014, Germain Katanga (Katanga) was found guilty of one count of crime against humanity (murder) and four counts of war crimes (attacking a civilian population, destruction of property, murder, and pillaging) during the February 2003 attack on Bogoro village in eastern DRC. He was sentenced to twelve years’ imprisonment. Pleading guilty, Ahmad Al Faqi Al Mahdi (Al Mahdi) was found guilty on 27 September 2016 of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion in June and July 2012 in Mali. He was sentenced to nine years’ imprisonment. Mathieu Ngudjolo Chui (Ngudjolo Chui) was acquitted of charges of war crimes and crimes against humanity allegedly committed in DRC on 18 December 2012, in a verdict upheld by the Appeals Chamber. The Appeals Chamber acquitted Jean-Pierre Bemba Gombo (Bemba) on 8 June 2018 in a reversal of Trial Chamber III’s decision of guilt on charges of war crimes (murder, rape, and pillaging) and crimes against humanity (murder and rape) allegedly committed under Bemba’s command in CAR in 2002 and 2003. In connection with his case, he and others were found guilty for offences against the administration of justice, for which sentences have been served. Charles Blé Goudé and Laurent Gbagbo were acquitted in January 2019 of all charges of crimes against humanity allegedly committed in Côte d’Ivoire in 2010 and 2011. The Prosecutor may still appeal this decision. See ICC case information sheets on https://www.icc-cpi.int/Pages/cases.aspx (accessed 20 June 2019).
the other situations. Indeed, the ‘NGOization’ of the DRC, Kenya, and Uganda is an important backdrop for understanding how already established international materialities are reflected in global justice-making (Mutua, 2009b).
The Ugandan situation was the first ever referral by a State Party to the ICC, and at first glance, a seemingly uncomplicated case for the Court. The scale of violence inflicted on the Acholi population in northern Uganda and their suffering had begun to figure on the international agenda, particularly once the UN Under SecretaryGeneral for Humanitarian Affairs, Jan Egeland, had described the situation as the ‘biggest forgotten, neglected humanitarian emergency in the world’ and an ‘epicentre of terror’.5 In the course of the more than twenty-year-long conflict, the LRA abducted an estimated 30,000 children who were forced to become soldiers or sex slaves. Such children became their only source of conscripts (as this policy fed discontent), and at the height of the conflict (2001–2004), over 90 per cent of its troops were abducted children, some of them as young as seven or eight years old. To bind them permanently to the group, they were forced to commit atrocities against their own families or each other. While the violence perpetrated by the LRA under the command of Joseph Kony in most accounts are rendered bizarre, incomprehensible and as (yet) another instance of African inhumanity, the ‘official discourse’ on what was a de facto civil war has significantly whitewashed government violence (Finnström, 2008; see also Mamdani, 2010). Besides reports of overt physical violence—murder, rape, torture— the government policy of forced displacement of nearly the entire Acholi population into so-called protected villages has been paralleled to concentration camps, ‘given that internment is an explicit government policy that targets the Acholi as a group and has led to tens, or even hundreds, of thousands of deaths and to the slow destruction of an entire ethnic group’ (Branch, 2007: 182).
In a joint press conference in London in January 2004, the then Prosecutor Luis Moreno-Ocampo of the ICC and President Yoweri Museveni of Uganda made public the latter’s referral of the ‘situation concerning the Lord’s Resistance Army’ to the ICC (ICC, 2004). In July the same year, the Office of the Prosecutor (OTP)
5 See https://www.aljazeera.com/archive/2003/11/2008410151518420888.html and http://www.irinnews.org/report/58638/uganda-northern-conflict-an-epicentreof- terror-egeland (accessed 7 November 2018).
opened an investigation into the situation in northern Uganda (and not exclusively into the crimes of the LRA as Museveni’s referral somewhat awkwardly and erroneously did). In October 2005, the ICC unsealed its first ever arrest warrants for what it considered the five top commanders of the LRA: Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raske Lukwiya. At the time of research, all men were at large, except for Lukwiya who was confirmed deceased in 2006. Since then, the proceedings against Odhiambo have also been terminated due to his death, and, crucially, Ongwen has been apprehended and is currently facing trial in The Hague.6
A sort of peace has come to the region today. Yet it is the sort of peace limited to the absence of violence rather than the presence of what enables society’s integration (Galtung, 1964). Although the scars of violence are far from healed, northern Uganda is described as a post conflict society (Branch, 2013). The LRA has left Uganda and are scattered across the borders of DRC, CAR, and South Sudan. As was mentioned by way of introduction, the ICC’s intervention in Uganda has thus proved to be far from an ‘easy first case’. Instead, it has come to illustrate many of the predicaments of international criminal justice, including the fact that local civil society favoured a peaceful resolution to the conflict, and opted for amnesties to be part of this endeavour—contrary to the views of major international human rights NGOs. For those who seek an analysis of the conflict in Uganda or the ICC’s intervention in it, this book will not do it justice (see generally Allen, 2006; Finnström, 2008; Allen and Vlassenroot, 2010; Baines, 2009; Branch, 2011). Instead, the analysis in coming chapters applies a view from Uganda to contextualize connections and frictions in global justice-making, and of the ICC as its flagship manifestation.
6 Kony is charged with twelve counts of crimes against humanity (including murder, enslavement, sexual enslavement, rape and inhumane acts of inflicting serious bodily injury and suffering) and twenty-one counts of war crimes (also including murder and inducing rape, cruel treatment of civilians, intentionally directed attacks against civilians, pillaging, and forced enlistment of children). See https://www.icc-cpi.int/Pages/cases.aspx (accessed 7 November 2018). The remains of Vincent Otti, the LRA’s second-in-command, rumoured to be dead since 2007/2008 after a fall-out with Joseph Kony, were allegedly found and identified by Ugandan forces in April 2015.
Crucially, the ICC is no ‘ordinary’ court. In contrast to criminal justice institutions in established democracies, international criminal justice is not as readily subject to the checks and balances of democratic processes involving parliamentary committees, a critical media, and academic scrutiny—in short, to a democratic and public constituency. This is all the more significant as institutional power is more concentrated in international criminal justice than is the case with its domestic counterparts. Where the latter is composed of a state institutional patchwork comprising several state institutions—police, courts, correctional services, health care, etc.—the ICC is not merely expected to adjudicate international crimes, but to investigate and detain, do outreach to a variety of communities, provide protection and reparations to victims and witnesses, among other things. This all in the context of international politics, intervening—in more times than not—in the midst of ongoing armed conflicts (Kersten 2016).
The ICC is composed of four ‘organs’: the OTP, the Judicial Division, the Presidency, and the Registry. The OTP is arguably the most visible organ of the Court, and carries out investigations and prosecutions. It is headed by Chief Prosecutor Fatou Bensouda from the Gambia, who took office after being Deputy Prosecutor under the ICC’s first Chief Prosecutor, the Argentinean Luis Moreno-Ocampo. Although independent of the Court, there are three other offices under the administration of the Registry. These semi-autonomous offices are the Office of Public Counsel for Victims, the Office of Public Counsel for Defence, and the Trust Fund for Victims (TFV), whose mandate is to provide reparations to victims of international crimes. At the time of research, the Court had a staff of 688 people in established posts and 171 people on general temporary assistance contracts, in addition to a number of interns (ICC-ASP, 2014), and whose significance for the field of international criminal justice is elaborated on in Chapter 4.
While the diversity of the activities carried out by the ICC complicates perceptions of the ICC, as different sections of the Court have different functions, it also exposes and complicates the question of what type of justice the Court and the field of international criminal justice ‘stand for’, that is, the substance of justice. The opening up of retributive and prosecutorial goals to a host of other justice ‘deliverables’—victims’ justice, gender justice, restorative justice, transformative justice—has led to a ‘contested
justice making process’ (Hoyle and Ullrich, 2014: 684) where different actors pull in different directions; the role of human rights NGOs being one of them. Hence, international criminal justice is frequently depicted as in a state of identity crisis (Robinson, 2008), with several diagnoses offered of its ‘acute ontological anxiety’ (Vasiliev, 2015: 705; Mégret, 2016a). One diagnosis offered suggests that the field is oversaturated as legal practice, having peaked in terms of institution-building last decade, and is now slowly shrinking (Christensen, 2015b), as illustrated by the recent closure of the ICTR and ICTY. As coming chapters aim to help explicate, the current condition also speaks to broader notions about the ‘identity’ of the international criminal justice project, about what it ‘is’ compared to other systems of justice-making, and to a strained self-image due to recurrent criticism about the gaps between its promises and the realities of what it can (be expected to) deliver.
Following a period of initial enthusiasm and support for the ICC to ‘end impunity’ for ‘the most serious crimes of international concern’ (the Rome Statute’s Preamble), the ICC is now subject to widespread and increasing criticism. Culminating in the threat of a mass exodus of African member states from the Court in late 2016, the most potent point of critique has been accusations of the Court ‘targeting Africa’. Charged as it is with colonialism and imperialism (Clarke et al., 2016), the legitimacy crisis for the Court must be seen alongside a shifting geopolitical landscape. The ‘transformationist rhetoric about “post-Westphalia” ’ (Hurrell, 2007: 9) has lost traction in the face of the emerging multipolar world order, that is, ‘a world of renewed sovereignty, resurgent religion, globalized markets, and the stagnation or rollback of universal norms about human rights’ (Hopgood, 2013: 166). By focusing on the imaginations of justice-making that animate international criminal justice, and the structural inequalities that give shape to its materialization, this book seeks to identify trends, characteristics, and dynamics of the field that explicate a lack of authority in global justice-making, and offer sociological explanation to the legitimacy challenge that international criminal justice is currently facing.
On balance, however, the research for this book was conducted at a time when faith in international criminal justice was strong but waning among actors in the field. No doubt also reflecting the maturing of myself as a researcher, critical voices towards the
project of international criminal justice were less present and welcome during my postgraduate and early doctoral years (2007–2012) than is the case today. At the present time, it has become somewhat of a joke among fellow scholars that there is no one left inside the church (of international criminal justice). These days, a standard critique of international criminal justice is to find some lofty ideal of the ICC, easily found in The Rome Statute’s Preamble or in celebratory speeches by representatives of the Court, State Parties, or the NGO community, and demonstrate how the ICC is unsuccessful in achieving such objectives. In response, ICC advocates, academics, and practitioners’ enthusiasm for an expanding international legal regime is now frequently replaced by the need to ‘manage’ expectations. The analysis presented in this book can therefore be read as an interpretation of how such inflated ambitions on the part of the international criminal justice project arose, given the push by human rights NGOs to accredit international criminal justice with wider socio-political goals beyond its adjudicative functions, and to increasingly equate the fight against impunity with a fight for global justice (Engle et al., 2016).
Moreover, the dynamism in the field is also reflected in jurisdictional ‘preferences’, as there is an increasing focus on domestic and regional prosecutions of international crimes, the crimes of concern here being crimes against humanity, genocide, and war crimes.7 There are three basic types of prosecutions for holding individuals criminally responsible for international crimes. First, there is international jurisdiction brought to bear by international courts such as the ICC. Second, there is universal jurisdiction, which comes into play when a domestic court takes legal action against an individual from another state; and finally, there are domestic prosecutions of international crimes. The focus in this analysis is on international prosecutions and punishment rather than transnational prosecutions, such as those undertaken under the principle of universal jurisdiction, or national prosecutions. However, as may already have been observed, I refer to the project of international criminal justice as global criminal justice-making because it not only has universal ambitions, and as such, seek to
7 These were the crimes that the ICC had jurisdiction over at the time of research. Piracy, slavery, torture, terrorism crimes against the peace, or crimes of aggression, are examples of other acts that may also be referred to as international crimes.
