Edward B. Rackley
A gripping and maddening slow-motion spectacle, last week’s Senate Armed Services Committee Hearing on the Situation in Afghanistan (available on C-Span), drifted predictably to Iraq, Iran, and Pakistan as senators and experts grappled over why Afghans, like Iraqis, could not ‘get it together after all we’ve done for them’. Another exasperated senator demanded, uncomprehending of why the hunt for Osama Bin Laden was still inconclusive: ‘Why not raise the price on Osama’s head by a million USD a week?’ It is currently valued at $25 million. Surely more millions would do the trick.
Among an endless sampling of senatorial hubris and stunning provincialism, the most memorable moment was the testimony of Afghanistan specialist Barnett Rubin from the Center on International Cooperation at NYU. Asked by Senators why the Afghan state and people could not capitalize on what the US had ‘given them’ in the way of democratic elections and the ‘freedom’ in the wake of Taliban rule, Rubin patiently explained that ‘in some parts of the world, freedom and democracy are not perceived as essential’ to a country’s recovery, stability or even prosperity. ‘Security and order’ are the desired ingredients, which neither the US nor the ISAF forces are providing.
‘And whose policies are to blame for the current state of affairs, then?’ demanded another Senator. ‘The United States, sir,’ came the cautious reply. Water wears out a stone, I thought, when the Committee closed the Hearing by noting the excellence of Rubin’s testimony.
Alongside democratic processes, ‘good governance’ (i.e., anti-corruption measures, accountability, transparency, etc.) and the ever nebulous ‘freedom’, justice is another superpower ideal frequently exported to troubled countries hoping that foreign intervention and aid programs will remedy their ills. As with freedom and democracy, local perceptions of the value and utility of justice are not what its defenders in the West would wish or suspect.
The biggest experiment in the pursuit of justice in countries where probable war crimes abound is currently led by the International Criminal Court, in operation since 2002. 
Its ratification followed four years of heated diplomacy among the 148 states involved, and intense lobbying by humanitarian agencies and human rights activists. The founding treaty affirms that ‘the most serious crimes of concern to the international community must not go unpunished’ and promises ‘an end to impunity for the perpetrators of those crimes’.
Unsurprisingly, the ICC is being tested in central African countries with the least economic and political significance to the major powers. Nor are any ICC suspects combatants in wars supported by the world’s major powers: otherwise their indictment would surely be blocked. The Hague-based body has undertaken investigations in Uganda, the DR Congo, the Central African Republic and, most recently, the Sudan. But as the ICC lacks its own police force, its investigation can only proceed as far as the state concerned allows. Despite its potential as a global legal instrument, its local actions and impact are complex, evolving and far from conclusive. Its four initial investigations have thrown up a slew of surprises; some welcome, others not.
Its primary challenge is the pursuit of justice in war zones defined by their absence of political order. Enforcement of legal limits and rights in an ungoverned—or government-sponsored—context of ethnic cleansing, such as Darfur or the Ituri district of Eastern Congo, is one difficulty. The subordination of justice—the arrest and trial of known perpetrators—to the more immediate need for political settlement is another.
Where protection from prosecution is used as a carrot to pacify warlords and thus restore order—as occurred in UN-brokered negotiations in Eastern Congo where the ICC was investigating suspected war crimes—aid workers call the trade-off ‘peace on the cheap’. Arrest warrants have been issued in DR Congo, and one former warlord is now awaiting trial in the Hague (Thomas Lubanga) But the Court’s work is undone when lesser warlords, also war crimes suspects, are offered high positions in the national military in exchange for a ceasefire and troop surrender.
Such is the slow and uncertain course of the ‘giant without arms or legs’. Since 2002, two of the four ICC investigations (Northern Uganda and Darfur, Sudan) have triggered a powerful popular backlash of opposition. Three unintended consequences of its investigations can explain this popular resistance. In the case of Uganda’s ongoing conflict with the Lord’s Resistance Army, fear of ICC indictments has led war crimes perpetrators to abandon political negotiations with government forces in favor of their original position: a ‘no exit’ war of attrition.
Second, in Congo, the prospect of ICC indictments had the opposite effect: it stimulated sagging political negotiations when a ‘golden parachute’ of high administrative office coupled with amnesty was offered to certain intransigent rebel leaders. Yet the prospect of justice is undermined by ‘peace on the cheap’, when the cessation of conflict is bought with amnesty: protection from ICC prosecution. At what point is amnesty indistinguishable from impunity?
Third, in Sudan, where ICC jurisdiction is categorically refuted by Khartoum officials, many Sudanese associate the ICC with a supposed ‘colonization effort’ by the UN and its western backers. Concerns that ICC warrants recently issued for two Sudanese officials will result in increased attacks on aid workers and the objects of their efforts, Darfuri citizens, are well-grounded. Should justice be pursued if it entails the withdrawal of the aid agencies’ vital life-support system where more than 200,000 people have been killed and 2.5 million displaced?
No one at the ICC could have foreseen the causal chain of perceptions and reactions born from a fear of indictment among those leading civilian massacres in each of these four countries. The learning curve is steep, and the ICC remains unwelcome in two of Africa’s most gruesome conflicts.
But from my experience in all four of these wars, I believe that subtracting the ICC from the equation of variables at play in each context would not diminish the cruelty or shorten its duration. Symbolic though it may now be, the fact that warlords and implicated government officials are investigated and held accountable by outside observers is a moral and legal dimension of the geopolitical kaleidoscope that did not exist four years ago. Reparations for victims may not be immediately forthcoming, but that suspected perpetrators in these otherwise forgotten crises understand that their deeds are documented and monitored is an essential first step in limiting the seemingly boundless human cruelty of such places.