The international criminal court (ICC) was set up in 2002 to prosecute individuals for genocide, war crimes and crimes against humanity. Some feared that its western-inspired, universalist idea of justice might come into conflict with local forms of law, jeopardising the process of reconciliation. Now that the court has started to flex its muscles—issuing its first warrants, in October 2005, against five leaders of the Lord's Resistance Army in Uganda, and more recently making an arrest in the Democratic Republic of Congo and identifying suspects in Sudan—there are signs that these fears may turn out to have been justified.
In recent times, almost all of Africa's nastiest wars have ended in local deals. Victors have showed a reluctance to punish. Losers have not been excluded, but given places in government, binding them into the system to prevent future rebellion. Only in a few cases has a rebel or deposed head of state been punished.
Take Mozambique. In the late 1970s, Renamo, a bunch of murderers set up by the Rhodesians, was let loose on Mozambique to punish the government for supporting Rhodesia's guerrillas. Renamo's gangs killed, raped, maimed and looted, leaving fear and horror in their wake. Peace only became possible when the South Africans decided to stop supporting Renamo. After months of negotiation with the Mozambique government, these war criminals were given mansions, salaries and cars, and became the official opposition. In elections today, they win some 30 per cent of the vote and you can have lunch with them any day in Maputo.
In Angola, once the rebel leader Jonas Savimbi was killed in 2002, the government declared an amnesty and brought his followers into parliament. And Sudan has just ended a 50-year-old conflict in a deal that leaves the perpetrators of war crimes on both sides unpunished.
Going back further, after the Biafran war in Nigeria in the late 1960s, the victorious government declared: "No victor, no vanquished." And at the end of the colonial period, former anti-colonial rebels turned rulers, such as Jomo Kenyatta and Robert Mugabe (yes, him), held out the hand of peace to white settlers.
These African deals have been marked by a striking absence of retribution, even at the personal level. But the ICC does not seem to have noticed. A global justice system that aims to try crimes against humanity and war crimes must have its ideas of justice informed by cultures other than our own. The ICC cannot hand out justice in Sudan as if it were Surrey.
The immediate forerunners to the ICC were the ad hoc war crimes tribunals set up after the conflicts in Rwanda and Sierra Leone, among other places. Watching as these courts were set up, I became sceptical about the ability of outsiders to fly in and dispense a form of justice that would be understood by the victims. The Rwanda tribunal was set up in Tanzania; most of its staff never went to Rwanda. As they fussed about the pecking order for accommodation, and court officials embezzled vast sums, the impact of their activities on a traumatised Rwanda seemed the last thing on their minds. In 13 years, at a cost of over $1bn, the tribunal has achieved 28 convictions.
In Sierra Leone, I once watched a delegation, led by the chief prosecutor of the court, taking a helicopter into one of the worst-hit towns. All of them white and smartly dressed, the delegation called the ragged people together and preached at them in English about how the court was bringing them justice. No attempt was made to ask the people what justice meant to them—the speech was not even translated into the local language. Later, the court arrested Hinga Norman, the only government minister who tried to fight off the RUF. The army was useless, so he trained militias, some of which used the same brutal methods as the RUF. Norman, regarded as a national hero, was charged with war crimes and last year died in custody during his trial.
Now the ICC is showing signs of displaying the same naivety and sense of bad timing as the ad hoc tribunals. After issuing its warrants against the Lord's Resistance Army (LRA), Luis Moreno-Ocampo, the court's chief prosecutor, said they had picked these men because their crimes were horrific and they had strong evidence against them. No one could argue with that. The LRA, which has been fighting the Ugandan government for 20 years, has no political programme. Its atrocities—mostly against its own Acholi people—matched or exceeded those of the RUF and Renamo. Its leaders demanded absolute obedience from its fighters, so their responsibility is clear.
But there are three major problems for the court in Uganda. First, the crass timing of the announcement of the LRA warrants. For at least ten of the war's 20 appalling years, sporadic peace talks have been going on between government, rebels and local leaders. Early last year, a deal started to seem possible. But the announcement that the LRA leaders were about to be dragged off to The Hague was hardly an incentive to the rebels to put down their weapons and make peace.
The court argued that it made its announcement when sufficient evidence had been gathered. Being judicial, not political, it could not take into account what was happening on the ground. President Yoweri Museveni, who in late 2003 had originally invited the court to deal with the LRA, now asked it to suspend the citations—but it refused to.
The second problem is political. Talk to anyone in the displacement camps of northern Uganda, and they blame the government as much as the LRA. While the LRA has killed, maimed and abducted children, the Ugandan army forced the entire population of the region—more than 2m people—into camps, where far more died of hunger and disease than the LRA slaughtered with its machetes and guns. The victims want to see both sides prosecuted, but the ICC argues that the LRA committed well-documented crimes against humanity ordered by its leaders. The forced encampment and atrocities committed by the Ugandan army were, by contrast, indirect results of the war.
The third problem is cultural. While it is true that Museveni called on the ICC to indict the LRA leaders, another process was already in motion. One element of this was the traditional Acholi way of ending disputes. Several local leaders argue that Acholis are better able to end this war in their own way. Traditional ceremonies ended conflict within the community with repentance and reconciliation. Surely it is better for the LRA leaders to perform some ritual and to be given pensions, cars and houses, and for the war to end, than for them to face trial thousands of miles away, with a result that means nothing to their victims—while the war continues.
If the ICC cannot bring peace and reconciliation to the victims of war, what is the point of its justice? Who is it for? I suspect it is for us, watching these wars on television. We demand an end to immunity for terrible crimes and need to see the baddies go to jail. The court may be a salve for our consciences for doing nothing about the wars in the first place.
If the ICC is going to step into Africa's complex wars, it must understand the local contexts and think through the effects of its actions. Local input and outcomes based on peace and reconciliation must be as close to the heart of the ICC's mission as justice.
Read Philip Clark and Nicholas Waddell's reply to Richard Dowden here
Crimes of War and the LSE are holding a public meeting, "Do War Crimes Trials Do More Harm Than Good?" on 3rd May. More information here
