Everyone Wants War Crime Tribunals. Few Understand Their Motivations | Opinion

Who is to blame for a civil war? After all is said and done, after thousands are killed or displaced, after human rights abuses, profiteering, criminality and humanitarian catastrophe, the unfortunate reality is that apportioning blame is often a question of political convenience rather than accountability. The winners select a scapegoat, and the United States leads the international community in a rousing chorus of boilerplate human rights rhetoric.

President Joe Biden's recent appearance at the G7 was intended to project a renewed United States commitment to human rights abroad, but it's not clear that he's prepared to abandon the old song and dance for tougher measures.

In Africa, the popularity of the war crime tribunals are on the rise again. As the International Criminal Court tangles with Côte D'Ivoire and its perennial problem child Darfur, calls for new trials are on the rise from new conflicts in Ethiopia to decades-old grievances in Liberia. In fact, the ICC seems to exist primarily to punish Africans for the worst humanity has to offer––of the 14 situations under investigation, 11 are from the continent.

War crime tribunals––ostensibly a mechanism for confronting the past––rarely deliver on their righteous promises. They can become political footballs used for simultaneously shaming rivals and covering one's own sins. They can become stopgaps for warring parties looking to delay justice or spoilers for fringe elements looking to collapse peace agreements. At their worst, in their insistence on finding someone to blame for past crimes, they run the risk of enabling ongoing abuses.

In Darfur, for example, a conflict between non-Arab rebel groups and Arab militias armed by former dictator Omar al-Bashir metastasized into ethnic cleansing and genocide perpetrated by the Sudanese government. Crimes in Darfur were referred to the ICC in 2005, but the court has yet to convict any of the five under indictment. Three of those individuals, including al-Bashir, former Defense Minister Abdel Raheem Hussein and former Interior Minister and Governor Ahmad Harun have been imprisoned since their removal from power after popular protests and a military coup in 2019.

The arrest of al-Bashir, Hussein and Harun is not so much a victory for accountability as a victory for the many claimants to the country's rightful rule, all of whom will do their best to ensure their rivals are eventually tried for war crimes while they occupy the halls of power. Meanwhile, skirmishes have escalated in recent months, with hundreds killed in attacks that have displaced more than 230,000 Darfuris.

Judges of the International Court of Justice
Judges of the International Court of Justice at the opening of the session in the case of Equatorial Guinea v. France on February 17, 2020, in The Hague, Netherlands. Nacho Calonge/Contributor/Getty Images

On the other hand, there's the war crimes tribunal's kinder cousin, the truth and reconciliation commission. In popular imagination, the "truth and reconciliation" process is often seen as something majestic, always arching toward justice. We imagine Nelson Mandela marching peacefully with fists raised to take apart the apartheid state and restore humanitarian values. But that's not the full picture.

Consider the case of South Sudan today, where a fragile, barely legitimate government has received U.S. government support and massive amounts of financial aid and still can't decide whether they feel comfortable proceeding with a so-called hybrid court they agreed to in a 2018 peace deal. This court, which would be the first such body to be operated in conjunction with the African Union, would be charged with investigating and prosecuting those involved in grave offenses during the 2013-20 civil war. The crimes in question are unlikely to ever see the light of day, given that members on both sides were directly involved in both the war and the mechanism intended to offer justice to its victims.

Perhaps the clearest examples of the politicization of war crime tribunals and truth and reconciliation commissions are underway in Liberia, where renewed calls for accountability after the civil war that devastated the country from 1989 to 2003 have unearthed uncomfortable questions for Liberia's political elite.

Though Prince Johnson––a former rebel leader who killed former President Samuel Doe, now senator and frequent kingmaker in Liberian presidential elections––is the most famous of the proposed tribunal's potential targets, he is far from the only combatant who managed to find a second act in politics. Many of the supporters of war crime tribunals would be likely to find themselves on the indictment list. One of the loudest voices calling for the tribunal is Benoni Urey, a former associate of Charles Taylor recommended by the 2007 Truth and Reconciliation Commission for prosecution of economic crimes.

Ultimately, war crime tribunals are most popular among two groups: the high-minded global elites issuing indictments from The Hague, and the warlords who, having jumped from the battlefield to the boardroom and then the legislative chamber, understand that war crimes are politically damaging to their opponents but so ineffective that they are unlikely to ever backfire. And then there are the Benoni Ureys of the world, who hop from one bandwagon to the next, hoping it will never reach a real court of international law.

The good news is that the United States has other options. If the Biden administration is truly committed to accountability in Africa, economic sanctions are far more damaging than an exercise that, no matter how idealistic, has so far failed to yield results. As we reconsider our approach to old African conflicts and new ones, we're better off living in the real world than trying to implement a fantasy ideal that mainly serves as a political advantage to whoever can wield it best.

Professor Ivan Sascha Sheehan is the executive director of the School of Public and International Affairs at the University of Baltimore. Follow him on Twitter @ProfSheehan.

The views expressed in this article are the writer's own.