Truth, Justice, and the Narrative in International Criminal Law

You would be forgiven if you thought that the International Criminal Court’s Twitter feed had been taken over by a Hollywood production company, promoting its latest movie, in the run-up to the ruling on Feb. 4, 2021 in the Dominic Ongwen trial, the Ugandan former child soldier and Lord’s Resistance Army (LRA) commander accused of 70 counts of crimes against humanity and war crimes. The ICC enticed its followers to tune in live: 234 days of trial, 130 witnesses testified, 1760 filings, 4095 victims represented, 1 verdict.

Ongwen was found guilty of 61 charges, among them violent attacks on internally-displaced persons camps, acts of sexual and gender-based violence, and violence against children. The verdict was broadcast live on Ugandan TV channels and radio stations. Victims and villagers across northern Uganda sat together to listen to the judgment. As one woman commented on Twitter: “This verdict is important. It has taken 16 years for victims in Northern Uganda to have a judgment that affirms their dignity and acknowledges what they went through.”

One of the pre-trial motions in the Tadić case in 1996 at the International Criminal Tribunal for the former Yugoslavia concerned whether the trial should be filmed and broadcast. During this case, in which the former Bosnian leader was charged with war crimes at detention camps, both prosecution and defense opposed the broadcast of the trial. The Judges, however, ruled otherwise. All international criminal trials are now filmed and available to the media. Indeed, the Tadić trial was sensational news and opened with media tents erected outside the court building. Nowadays, anyone can now readily access these videos on the ICC’s own YouTube channel.

The dramatization of the international justice system will not come as a surprise to practitioners and experts in the field. Hannah Arendt’s withering critique in the New Yorker of the 1961 Adolph Eichmann trial in Jerusalem accused the prosecutors of a theatrical presentation and putting history, not the defendant, on trial. She later said that the purpose of the trial should be ”to render justice, and nothing else.”

Campaigners, political activists, and many legal experts may disagree. Many have come to recognize the value of narrative in international justice fora. It gives victims, observers, and civil society a voice. According to the ICC, “people most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership of the justice process.”

The encouragement of external voices by international courts and tribunals, as well as by the media, has led to a proliferation of narratives in and outside of the court. Whether it is human rights campaigns to encourage the international community to focus on certain conflicts, preliminary investigations to assess admissibility, or amici curiae briefs that are designed to provide additional contextual information, all have become increasingly partisan in tone over the past twenty years. They often set the scene for the judges and the public before the trial has really begun.

International courts are inherently expressive, says Professor Margaret deGuzman. They provide a platform for a multitude of narratives, which help explain the underlying dynamics and reasons for a political or physical conflict. Contesting these narratives is essential to the courts’ proceedings. But recently, some prosecutorial narratives have begun to dominate. In international criminal trials, this is a real concern: a dominant narrative may drown out a plurality of voices and can infringe on the defendant’s rights to a fair trial.

That isn’t to say that a dominant narrative will always prejudice the courts. Fair trials can be held despite clamoring voices for one version of the truth, but courts need to be vigilant in ensuring that a dominant narrative does not permeate the courts nor influence the evidence.

In the ICC’s first case, Thomas Lubanga Dyilo, president of the Union of Congolese Patriots (UPC), was accused, and eventually convicted, beyond a reasonable doubt, of war crimes of conscripting, enlisting, and actively using children under the age of 15 in hostilities in the Ituri district of the Democratic Republic of the Congo during 2002 and 2003.

This was a landmark trial. It was seen as an important opportunity to raise awareness of the crime of the use of children in war. But this led to some serious flaws in the handling of the trial. The OTP was heavily criticized for its use of intermediaries in collecting witness testimonies. They were gathered by groups such as MONUC, the UN agency charged with documenting human rights violations in the Democratic Republic of the Congo (DRC), and international and local NGO representatives. The use of intermediaries was driven by a concern that there would be local reprisals against those who testified. Nine witnesses who claimed to have been child soldiers gave evidence to the Court. However, the intermediaries were accused by the defense of coaching and bribing the witnesses to lie.

This accusation was borne out in greater detail in the judgment, where nearly a third of the ruling was dedicated to the problematic use of intermediaries and unreliable witnesses. Ultimately the Court did not accept that these nine witnesses had not been conscripted and dismissed their testimonies.

According to Mark Kersten of the Wayamo Foundation, “every conflict has a dominant narrative. It is what informs us of who is right and wrong; of who is responsible and who is a victim; of who needs to be held to account and for whom. Usually, these narratives come in the form of a binary: one side is good, the other evil.”

Narratives do not establish absolute truths or deliver justice. At best, they set out a historical expression of a political conflict. These narratives do not always stand the test of time. One such example are the Nuremberg trials, where the prevailing US narrative was centered on German aggression. The first count against the Nazi officials was their participation in the “planning, initiating and waging of aggressive war.” Today, most people believe that the Nuremberg trials were designed to bring the perpetrators of the Holocaust to justice.

With the rise of social media opinions and instant access to what is happening inside of the courtroom, sometimes the unofficial verdict is made outside of the court. When a public has come to believe that the dominant narrative is the truth and that the defendant is guilty, an acquittal is seen as a betrayal. That approach belies the fundamental purpose of all courts. Acquittals are confirmation of a just process.

As far back as Nuremberg, people have been worried that international war crimes tribunals would become acts of “victors’ justice.” The same might be said in light of the Ongwen verdict. There is no doubt that the LRA caused unimaginable harm and pain to thousands of Ugandans. And yet, that the Government of Uganda handed over Ongwen to the ICC has been a sign to some that the government was merely looking to protect themselves from any real scrutiny of their own role in the civil war.

It is important to remember the purpose of an international criminal trial. It is to judge the actions of an individual. Its verdict – guilty or innocent – does not absolve anyone else. Ongwen was given a fair trial. But his crimes are part of a much larger conflict, and his guilty verdict should not suggest that others should not be handed over for justice. Nor does it establish the truth of what occurred throughout the conflict.

Maybe those of us who believe in a neutral justice system have been naïve. International criminal law is inherently politicized by its very nature. The question is whether we have allowed the political narrative to dominate the judicial process and silence the defense of the accused.

Editor’s Note: 9BR International held a webinar on Feb. 1 with Professor William Schabas, Dr Mark Ellis and Professor Margaret deGuzman, debating the influence of the narrative in international criminal law. To watch the full discussion, please click here.

Image: People gather to watch the verdict of Dominic Ongwen, a former child soldier-turned-commander for the Lord’s Resistance Army (LRA), in Gulu, Uganda, on February 4, 2021. The International Criminal Court in The Hague, Netherlands, on February 4, 2021 convicted Dominic Ongwen, a Ugandan child soldier-turned-Lord’s Resistance Army commander, of war crimes and crimes against humanity. (Photo by SUMY SADURNI/AFP via Getty Images)

 

About the Author(s)

Steven Kay

Steven Kay, QC (@StevenKay_QC) is head of 9Bedford Row Chambers and a leading international criminal barrister.