Mark Kersten

The ICC in the Central African Republic: The Death of Deterrence?

Rebels in CAR
Rebels in the Central African Republic. Photo: Rebel in northern CAR 02/Wikimedia Commons.

Editor’s note: this article was first published on JiC on 11 December 2013.

The Central African Republic (CAR) is “descending into chaos“. In the past few months, violence and instability in the country have proliferated. In November, the French Foreign Minister even used the ‘g-word’ to describe the situation in the CAR, declaring that ”[t]he country is on the verge of genocide”. Jean Ging, of the UN’s Office for the Coordination of Humanitarian Affairs, similarly suggested that the country is sowing the “seeds of genocide“.

In response to the crisis, the international community has immersed itself knee-deep into another military and humanitarian intervention. [In the week of 2 December 2013], the UN Security Council unanimously authorized France and African Union forces to use “all necessary measures” to protect civilians. The African Union and the UN Security Council have their work cut out for them. In endorsing international intervention into the CAR, the International Crisis Group stated:

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Putting the ICC’s Kenya Cases on Ice

Uhuru Kenyatta, President of Kenya
Uhuru Kenyatta, President of Kenya. Photo: World Economic Forum/flickr.

Kenya wants the United Nations Security Council to halt the trials of President Uhuru Kenyatta and Deputy President William Ruto. With the African Union at its side, Kenya has asked the Security Council to temporarily defer ICC prosecutions through the invocation of Article 16 of the Rome Statute. Doing so will undoubtedly lead to accusations that the Security Council is actively endorsing impunity in Kenya. But will that stop them?

Recent reports have suggested that Western diplomats are busy drafting a Security Council resolution to defer the Kenya cases. This is significant. Presumably ‘Western’ powers – especially the US and ICC member-states France and the UK – are the key to any resolution passing. A veto from any of them would ruin Kenya’s chances at a deferral – although it should be noted that such a resolution is unlikely to ever come to a vote unless it is guaranteed to pass in advance.

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In the ICC’s Interest: Between ‘Pragmatism’ and ‘Idealism’?

The International Criminal Court in The Hague
The International Criminal Court in The Hague, courtesy of Vincent van Zeijst/Wikimedia Commons.

It is a regular occurrence to hear how the International Criminal Court (ICC) serves the interests of particular actors, be it warring governments, rebel groups, or members of the international community more broadly. Rarely, however, have scholars and observers considered how the ICC’s decision-making is shaped by the ICC’s own ‘institutional self-interest’.

At the heart of criticisms that the ICC is ‘political’ is the view that the Court is inherently and inevitably selective. This critique is deployed both within and between situations. In cases such as Uganda, Cote d’Ivoire and Libya, it is argued that the ICC has erred in targeting only one side of the conflict. Alternatively, it is argued that the Court focuses myopically on the weakest states in the international community (see the ICC-Africa debate), leaving situations where major power interests collide (e.g. Iraq, Syria and Afghanistan) beyond the reach of international justice.

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Transitional Justice as Politics

Justice with a swagger
Justice? Photo: quinn.anya/flickr.

It is widely accepted that transitional justice can and should be separated from politics. How societies and states achieve justice in the wake of mass atrocities, so it goes, is a pursuit that must be divorced from political calculations. Indeed, in the eyes of many, politics is poison to any attempt at achieving accountability and combating impunity. Justice must be above and beyond politics.

As I have written previously, the field of transitional justice suffers from a diversity of problems. It is an ever-growing conceptual minefield that has accepted so much under its mandate that it risks losing its meaning. Increasingly, transitional justice no longer refers strictly to the approaches societies take to account for the past in the wake of conflict, dictatorship or a period of mass atrocity. Instead, a broad array of issues from Security Sector Reform, forced migration, Demobilization and Reintegration Reform, amongst others, are now considered under the transitional justice umbrella.

Another problem within the field and, especially, the practice of transitional justice has been a certain denial of politics. The strength of transitional justice is that it is political and, as such, represents the possibility of building societies and peace on the basis of a good politics.

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Frustrations over the ICC and Justice in Palestine

Mahmoud Abbas, President of the National Palestinian Authority, delivers an application for full Palestinian membership in the United Nations to Secretary-General Ban Ki-moon. Photo: UN Photo/Paulo Filgueiras

It came as no big surprise that the United Nations General Assembly voted to upgrade Palestine to non-member observer status. But, reflecting the reality that international criminal justice now goes to the very heart of Middle East politics, many are left wondering whether Palestine will join the International Criminal Court and request (once again) that the ICC investigate its conflict with Israel. Pondering this issue has left me deeply frustrated.

While it may not be wise to box oneself into a particular moral outlook, I consider myself to be a liberal cosmopolitan. Very briefly, that means that I believe in a politics where all human beings share fundamental individual rights and that when those rights are blatantly violated we, as a global community, have some obligations to respond. This political ethos, I believe, is also what guides most proponents of the ICC, not to mention other liberal cosmopolitan projects such as the Responsibility to Protect.

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