Why is the ICC’s success rate so low? According to McCargo, the concept of transitional justice is rooted in an ideology of “legalism,” which regards justice as superior to politics — as “somehow suprapolitical and even beyond criticism.” This can be a counter-productive basis for the pursuit of war criminals, as it suggests that politics has no role in solving what are often inherently political problems. It universalizes the issues, charges McCargo, applying lofty and vague notions of “justice” while glossing over the complicated facts. “Transitional justice does not, as a rule, pay much attention to the messy particularities of history,” which undermines its capacity to provide peaceful solutions to violence, while arguably exposing it to political manipulation.
The Cambodian case illustrates this. In 2003, the UN helped to establish the Extraordinary Chambers in the Courts of Cambodia (ECCC) in an attempt to try surviving Khmer Rouge leaders for the war crimes they committed during the genocide of 1975–1979. Many have criticized this international judicial approach for an alleged failure to take into account the unique and complex situation on the ground in Cambodia. Not only did the genocide claim the lives of nearly one-fourth of the nation’s population, but the lines between victims and perpetrators often became blurred during the violent frenzy. The subsequent government of the Cambodian People’s Party (CPP) under the leadership of Prime Minister Hun Sen (who has stubbornly held the reins of power on-and-off since 1985), has drifted further towards authoritarianism, dashing the West’s hopes for a peaceful transition towards democracy. So far, the ECCC has indicted only five people: one died before he could be convicted, one was acquitted, and three others were found guilty.
McCargo charges that the UN’s involvement in the Cambodian reconciliation process has caused more harm than good — lending credence to fears that the West is intervening while claiming moral high ground. For some in the Cambodian government, the UN’s forthright intervention has aroused suspicions that the West is using the tribunal as a means of ousting the CPP. Hun Sen has done his best to sabotage it while still claiming his title as Cambodia’s savior from the Khmer Rouge.
Whether in The Hague or Cambodia, writes McCargo, the UN’s involvement in complex local conflicts under the banner of “transitional justice” can backfire and entrench further political despotism. Downplaying the role of politics and the historical context of a situation can open up tribunals to exploitation on the ground — particularly in those cases where there has, in fact, been little meaningful political change.
But by 2016, when the ICC finally brought a member of the LRA, Ongwen, to trial, Museveni had turned on the “useless” court, criticising it of “western arrogance”. He told Der Spiegel: “This is our continent, not yours”.
This mistrust of the ICC is echoed across the African continent. Last year, South Africa, Burundi and the Gambia’s stated intention to quit as members of the court, and talk of a mass African exodus promoted Kofi Annan to pen an impassioned call for African nations to support the ICC.
Significance of the ICC for criminals and victims
I argue in this section that the ICC either has no impact or a positive impact in terms of providing international justice and peace. First, the ICC does not seem to have prevented potential criminals from being violent, whether they live instates parties or non-party states to the ICC, but this could change in the future given that some potential criminals seem to fear the ICC. Second, the reaction of individuals indicted by the ICC is indeterminate: some have continued to use violence, whereas others seem to have contained it. Finally, victims who are aware of the ICC seem to be generally in favour of it, even if it only provides symbolic justice.