Justice for whom? It’s time to rethink the role of international courts

Panorama of the International Court of Justice court room, principal judicial organ of the United Nations located at The Hague.

In recent news, two senior figures in the Communist Party of Kampuchea (CPK) were given life sentences after being found guilty of genocide and crimes against humanity by the Extraordinary Chambers in the Courts of Cambodia. The CPK, lead by Pol Pot, attempted to turn Cambodia into the purest Marxist utopia the world had ever seen, and in doing so killed over a million people. In Uganda, a former commander of the Lord’s Resistance Army (LRA) accused of war crimes had his bail hearing pushed to January 2019 after push-back from victims. Neighbouring Democratic Republic of the Congo has witnessed the return of a former warlord from The Hague after his conviction of war crimes and crimes against humanity was overturned by the International Criminal Court (ICC) this summer.

When mass atrocities and violence come to international attention, the response is often horror, condemnation, media coverage and fundraiser efforts. Eventually, the conversation becomes about justice: who is the evil party? Who are the victims? Who should be punished and who should be helped? In several cases – Uganda, Yugoslavia, Rwanda, Timor-Leste, to name a few – international judicial institutions such as the ICC set up ad-hoc tribunals or hybrid courts and begin prosecutions based on violations of international law. The ICC and the UN are very proud of what they do, and will point to several successful prosecutions as an example of how they are aiding peace-building processes around the world. Justice becomes a neatly wrapped parcel that has been successfully delivered by the judiciary peacekeepers of the world. And then they go home and all is well, another mass atrocity dealt with.

Yet the ruling of the two CPK members took almost 40 years and both men are now 87 and 92 years old. The former LRA commander has been waiting to be tried since 2009 – and his trial has been delayed and faced complications for so long that he may soon be released on bail, to the consternation of victims. Finally, the reverse in the Ugandan warlord’s conviction has left over 200 victims who qualified for compensation – as well as hundreds more who did not – suddenly left dangling by the ICC’s decision. Despite all the self-congratulation international agents like to bestow upon themselves, these cases suggest that there are some serious problems with the international justice system. It begs the question: what role should international judiciary take in the process of transitional justice and reconciliation, if it should even be interfering at all?

When international actors enter a country reeling from unimaginable pain and suffering, they tend to bring with them international staff who are removed from the context of the violence, and sometimes ignorant of the history, culture or politics of the host country. They arrive with a sense of self-importance and superiority that they may feel is justified by their international status, but that reeks of imperialism and plain ignorance to many on the ground. And although the intention may be morally grounded, does the end justify the means if the end is partially – or totally – unsuccessful and the means is at the expense of the very people who are meant to be benefitting from this process?

Perhaps the common international understanding of what justice is cannot be transplanted into other cultures and contexts. After mass destruction and loss of critical infrastructure that makes a state function, punitive justice may not be the most urgent priority, especially if survivors need first and foremost to rebuild homes, address physical and mental health conditions, access clean water and return to their normal lives. Perhaps international actors should be focusing on providing funding and support to nation-building efforts instead of rushing in judicial procedures? What is more important: immediate, accessible medical treatment and other essential services; or lengthy and uncertain trials in isolated courts that require survivors to relive their experiences many times over?

In defence of the ICC, there are cases such as Rwanda where there is virtually no judicial institution left after conflict, which certainly calls for international support. Yet it seems to me that there is cause to reconsider whether externally imposed justice does actually address the needs of those on the ground, particularly when it comes to crimes that are interpreted as violations of social norms, such as war-time rape or child soldiers. The examples given here suggest that delays, unfulfilled promises of reparations and grandiose but ultimately useless court sentences don’t provide long-term solutions for victims and are more symbolic than meaningful. However, whether international agents are willing to recognise they may not be best suited to saving the day is another question altogether.

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