CHALLENGING IMPUNITY: International Criminal Court Indicts First War Criminals

Article excerpt

Last October, the International Criminal Court (ICC) issued indictments for the arrest of Joseph Kony and four other leaders of Uganda's Lord's Resistance Army (LRA). The LRA is notorious for a 21-year campaign of terror in Northern Uganda - including the abduction of thousands of children and the widespread use of child soldiers. Kony and the other LRA leaders are charged with "crimes against humanity" and "war crimes."

The case against the LRA is a test of the power and limits of the ICC just four years after its birth in 2002. The new legal body taking shape at The Hague is a direct legacy of the Nuremberg tribunals which tried Nazi war criminals after World War II. But, unlike Nuremberg, the ICC embodies the promise of a universal court for universal crimes.

It is this elusive goal that sustains the victims of human rights abuses hungry for individual accountability, the diplomats who negotiated the Court's creation in Rome during the summer of 1998, and the international lawyers and activists who desperately want such an institution.

Supporters of the Court believe it is the most significant advance in international human rights in the last half-century. In addition to Northern Uganda, the ICC has begun investigations into atrocities in the Congo and, most recently, in Darfur, Sudan. The Chief Prosecutor, Luis Moreno-Ocampo, is an Argentinean with a domestic record of successful prosecutions of corrupt politicians, organized criminals, and the generals responsible for mass "disappearances" during Argentina's "dirty war" of the 1970s and early 1980s.

But what can the Court really do? The ICC has no police force connected to its operations, so it can't directly arrest indicted suspects. If the prosecutor can persuade UN peacekeepers or sympathetic states to arrest suspects, the Court will provide criminal justice for a select number of the world's worst killers. In the process, the ICC hopes to destigmatize warring communities and rid them of collective guilt by assigning blame to individuals. For victims and their families, the Court offers the possibility of retribution through law - a forum where they can bear witness to the atrocities they've experienced - and a compensation fund.

Equally important, the ICC aims to influence international politics by naming and isolating war criminals. In 1999, jurist Louise Arbour of Canada, former UN war crimes prosecutor for the Balkans, timed the indictment of Serb leader Slobodan Milosevic to ensure that NATO would not cut a deal over Kosovo with a criminal suspect. Two years later, Milosevic was arrested by Serbian police and turned over to the International Criminal Tribunal for the former Yugoslavia.

Even without its enforcement problems, the Court will have to overcome external enemies and internal deficiencies. The fact that the ICC's first cases are all in Africa has led to the predictable charge that the Court represents the selective imposition of Western values on poor states.

The Court is an international anomaly: an institution created by treaty among 99 states that functions without the cooperation-and often with the opposition-of some of the world's major countries, including the United States, Russia, China, and India. That treaty - the 1998 Rome Statute-was the product of compromise. In the end, the treaty created a court capable of prosecuting only three universal offences: war crimes, genocide, and crimes against humanity.

The result is a codification of international criminal norms which will stop the creation of ad hoc criminal tribunals-like the ones for the former Yugoslavia and Rwanda. The Court's statute identifies rape and torture as crimes against humanity and provides clear definitions of liability for officers in command positions who are barred from arguing that they were simply "following orders." The statute also guarantees defendants substantial "due process" protections (for the accused) and preserves the right of appeal. …