The Efficacy of International Human Rights Courts: A Case Study of Uganda

The general consensus in the current literature on the efficacy of international human rights courts is rather positive. Kim and Sikkink (2010), Meernik (2003), and Akhavan (2009) agree on their ability to improve human rights through a number of legal and social means. However, Snyder and Vinjamuri (2003) remain more skeptical about their effects compared to other notable scholars, due to the potential for international human rights courts to destabilize by undermining their sovereignty. Overall, most of the literature on human rights courts is in consensus on international courts’ ability to improve human rights in both the social and legal realm and deter future human rights violations.

Kim and Sikkinik’s (2010) study examined the possible effects of human rights prosecutions and found that they decreased government repression in the long-term. They studied 100 transitional countries between 1984 and 2004 and classified three specific transitions: democratic transition, transition from civil war, and transition by state creation. Their dependent variable was political repression, operationalized by using the physical integrity index from CIRI scores. These scores encompass the amount of civil, political and workers’ rights that exist in each country on an 8-point scale, with higher numbers signaling lower rates of political repression. The independent variables were the variety of human rights prosecutions that occurred: domestic prosecutions for human rights crimes committed in the country, international prosecutions, foreign prosecutions, in which one country held another country’s leader on trial, and hybrid courts. Kim and Sikkink (2010) found that human rights prosecutions had a strong statistically significant impact on the decreasing level of political repression. Countries with human rights prosecutions had lower levels of repression than those without prosecutions. The level of repression also decreased as the number of years with human rights prosecution increased. One of the strengths in the study lay in the selection of transitional countries, which generally have worse human rights records, yet international courts were still able to decrease repression rates. Additionally, their verification of their measurements of repression bolstered their conclusions as both CIRI scores and the Political Terror Scale indicated an improvement of human rights practices post-transition. Their consideration of various forms of human rights prosecutions aided in revealing the cumulative effect of all types of human rights prosecutions. However, they failed to go into detail about the specific effects of domestic versus international or foreign prosecutions, leaving open the question of which method is most responsible for improvements in human rights. Additionally, there was little discussion of the effects of the different processes of transition in improving adherence to international human rights norms compared to one another. Moreover, their brief consideration of transition by state creation or democratic transition ignored the effects that colonial roots may have, for example, whether British colonies may have better human rights prosecutions than French ones. Ultimately, Kim and Sikkink’s (2010) study was representative of the general optimism surrounding the effect of international courts and human rights prosecutions.

Meernik (2003) expanded upon Kim and Sikkink’s (2010) research by separating the possible legal and political factors that could affect sentencing in the International Criminal Tribunal for the former Yugoslavia (ICTY), and found that the Court operates on primarily legal factors. He predicted verdicts based on legal or political variables pulled from the ICTY website, to examine which ones had the most influence and evaluate the “fairness” of the court. His political model’s independent variables were the differences in expertise, ethnicity, number of witnesses called by the judge, number of judges from NATO nations, and arrests by the stabilization force (SFOR). His legal model’s independent variables were the gravity of the crime, the individual’s level of responsibility and whether the individual agreed to a plea bargain. Meernik (2003) concluded that the ICTY mainly follows the legal model; those convicted of the worst crimes, the most offenses and who bore the most responsibility for these crimes would receive the most severe sentencing. He found that most political factors do not play a significant role in sentencing, except for the number of witnesses called to testify. The strength of his study lay in the separation of political and legal factors that created a clear distinction between the effect of each category of variables. However, his grouping of NATO judges was problematic as he assumed they had the same training and values. He did not consider the differing legal traditions in each of the NATO states, such as the unique use of the death penalty in the United States. He also failed to explain the category of the crime and whether genocide or war crimes carry a more severe sentence compared to other types of crimes. Meernik’s (2003) analysis informed Kim and Sikkink’s (2010) research by focusing on the legal workings of the court system. It gave a possible reason for improved adherence to human rights norms, as the structured, unbiased nature of the ICTY can punish those responsible, relieving lingering emotional tensions, and act as a guide for an impartial legal system. Additionally, while Yugoslavia is not technically a transitional state in the definitions that Kim and Sikkink (2010) used, it still has to transition back to peaceful civil life after a bloody conflict. The ICTY could aid in guiding them back to civil society by reinforcing the legal norms. This could parallel the reinstatement of law through human rights prosecutions that may have occurred in the countries that Kim and Sikkink (2010) studied, as they also transitioned from a state of conflict, back to some sort of peace.

Akhavan (2009) supported Meernik’s (2003) research by using case studies to find that the International Criminal Court (ICC) played a significant social, rather than merely a legal, role in deterring violence. Akhavan (2009) selected three ICC situations where no individual was held legally responsible and indictments were not issued: Cote d’Ivoire, northern Uganda and the Darfur region of Sudan. He found that in Cote d’Ivoire, the threat of referral to the ICC stopped the propagation of hate-filled, discriminatory radio broadcasts that could incite violence. In Uganda, Sudan was less willing to protect the Lord’s Resistance Army once the case was referred to the ICC. The stigma the ICC placed on the LRA pressured Sudan to distance themselves from the LRA. In Darfur, the pressure the ICC placed on the Sudanese government made them use Janjaweed leaders as a scapegoat, which aided in disrupting ethnic cleansing in the region. One of the strengths of his study was in examining cases with various methods of referral to the ICC. The broad deterrent effect of the ICC applied to whatever method was present. Additionally, he also considered the social effects of the Court and their method of naming and shaming campaigns to induce change. However, Akhavan (2009) was also not able to separate the specific effects of the ICC from the effects of general condemnation of other nations. Additionally, he also examined rather weak and politically tumultuous states and did not consider whether the trend would hold for internationally powerful states. Akhavan’s (2009) study was still able to supplement those that came before. Unlike Meernik (2003), he studied the effect of the Court through political and social methods and its ability to follow more Constructivist ideas of changing norms and increasing the social and political price of committing human rights violations. Akhavan (2009) also served as a direct companion to Kim and Sikkink (2010) in their conclusion that international courts and human rights prosecution can prevent future human rights violations rather than merely deal with the perpetrators after-the-fact, by thoroughly examining the methods behind such a change, rather than just observing a trend, as Kim and Sikkink (2010) did. Akhavan (2009) depicted a more activist court in leveraging its international social weight to intimidate governments to stop violating human rights.

Snyder and Vinjamuri (2003) took a more pessimistic view of the effect of international courts, as they concluded that international courts destabilized the countries they prosecuted. They examined 32 cases of civil wars between 1989 and 2003. Snyder and Vinjamuri (2003) conducted an observational study, and examined the rule of law and existing human rights standards to assess how trends in these dependent variables related to their independent variables, the strategy of justice used in each case: trials, truth commissions and amnesty. They found that trials can end abuses when spoiler groups were weak and the domestic legal infrastructure was reasonably well-established. Otherwise trials could incite further violence and deepen ethnic cleavages. The strength in their study lay in their examination of multiple methods of justice (trials, truth commissions and amnesties), as well as a variety of countries, which showed the varied effects of each method of justice on a state’s human rights. However, Snyder and Vinjamuri’s (2003) multiple case studies did not delve deeper into the more complex social implications of each method of justice, but were more surface conclusions. Furthermore, there was little discussion to the reaction of victims and their families to the lack of prosecution as they reduced a humanitarian problem to a political one. Snyder and Vinjamuri (2003) departed from Meernik’s (2003) conclusions that an impartial court can bring about improvements, rather, they preferred political factors to influence decisions of justice as each case should be placed in its international political context to decide the next steps, which could be amnesty if the political landscape was still too dangerous for human rights prosecutions. While Akhavan (2009) presented the ICC as a method of possibly solving the trade-off between political expedience and justice through collective action and reinforcement of norms, Snyder and Vinjamuri (2003) accepted politically expedient deals as often the only peaceful way to end conflict. Snyder and Vinjamuri (2003) were more conservative about the effect of human rights prosecutions compared to Kim and Sikkink (2010). They did not completely despair at the effects of human rights prosecutions, merely that they were effective under certain political conditions of an already democratizing state.

The scholars discussed above are quite optimistic about the impact international human rights courts can have. Kim and Sikkink (2010), Meernik (2003), and Akhavan (2009) emphasized the courts’ impartial and fair nature that can reinforce human rights norms and aid countries in having a robust legal system to properly prosecute human rights offenders. However, Snyder and Vinjamuri (2003) were more conservative in their estimate of the effects of international courts. Ultimately, the power of the courts in academic literature was assumed to be positive.

While the literature has an optimistic perspective on the improvements international courts can bring, the effect of the International Criminal Court in Uganda was much more tempered. The ICC was spurred into action by the atrocities committed by the Lord’s Resistance Army (LRA), headed by Joseph Kony, including widespread abduction of children and adults, the use of forced child soldiers and sexual slavery (Silverman 2014). While there has been some short-term improvement in the Ugandan legal structure and an indication of a social awareness of human rights, there seems to be little promise for any long-term improvements in human rights.

The ICC had a fair amount of influence over the reforming of the legal structure in Uganda. Before the ICC, Amnesty International (1994) indicated few methods for recourse if one is victim of a human rights violation. Additionally, they noted the complicity of local authorities in refusing or delaying trials to prosecute human rights violations, particularly those perpetrated by Ugandan soldiers or LRA members. According to the ACCORD Report (2015), the ICC promoted the creation of a number of laws and a new court to hold perpetrators of grave injustices more accountable. Specifically, they sponsored the International Criminal Court Act of 2010, the Accountability and Reconciliation Agreement with the LRA, and are seeking to pass a Prevention of Genocide Bill through the Ugandan Parliament, which establishes an Independent National Committee to spearhead the fight against genocide. One of the clearest signs of the ICC’s influence was the creation of the War Crimes Court, which was directly modelled after international tribunals with a judicial bench consisting of at least three judges, a registry, an Office of the Prosecutor and a Defense Court (ACCORD 2015). These developments were an improvement from the previous lack of judicial structures for these particular subset of atrocities. Additionally, even the presence of such structures could raise the cost of performing such acts and deter future attacks by the LRA. It could also spread the norms of the unacceptability of violating human rights, as well as establishing a sense of a rule of law and, as Akhavan (2009) noted, could use international political pressure to stop the LRA. These influences by the ICC and its potential to charge human rights violators could inform Meernik’s (2003) study as the impartiality of the ICC could be transferred to the domestic institutions it has helped build, such as the War Crimes Court. The fair prosecution of leaders of the LRA could also aid in splintering the organization of the group, which has been cited as one of the factors behind the shrinking power of the LRA and its decreasing rates of child abductions and violent attacks. The guidance of the ICC can aid in Uganda strengthening and clarifying its legal protections against human rights violations.

However, despite the promising start of these institutions, there seems to be little evidence on continuing improvements in the long-term. The LRA, though greatly weakened, is still operating and abducting children (Human Rights Watch 2005). There is only one pending prosecution against Thomas Kwoyelo, a high-ranking LRA colonel, in the War Crime Division of the High Court, leaving the efficacy of the court uncertain and casting skepticism on the idea that the War Crime Division will truly prosecute everyone involved (Human Rights Watch 2011). Overall, Uganda’s Freedom House score is consistently high, demonstrating a flawed rule of law and a lack of civil rights for its citizens (Freedom House 2015). The United States Department of State (2016) continues to classify the crime rate, as well as domestic and international terrorist threats to Uganda as critical, suggesting the implementation of new legal standards and courts were not as effective as the ICC expected. Kim and Sikkink’s (2010) conclusions about the beneficial nature of human rights prosecutions through international and domestic courts, were somewhat challenged by the fact that despite the slight improvements at the start of the reform process by the ICC, its effects may be more difficult to translate into the long-term.

The ICC has also attempted to bring justice to victims of human rights violations and their families, by further strengthening social acceptance of human rights. Previous to the arrival of the ICC, the lack of trials or accountability left victims of human rights abuses and domestic crimes vulnerable to physical and economic intimidation by their attacker (Human Rights Watch 2005). Moreover, ACCORD International (2010) reported that many victims were often socially stigmatized from their communities after experiencing human rights violations or other crimes, particularly if the crime was sexual, which was common for women kidnapped or attacked by LRA members. They were often forced not to report their crimes as police officials extorted money if they did report it or were often bribed to not take action, ultimately contributing to the culture of silence and ignorance of human rights violations. In a study by the Human Rights Center at the University of Berkeley (2005) of 2,585 Ugandans from four Northern districts, 76% of respondents indicated a desire for some accountability for the actions of abusers and, of the small percentage who have heard of the ICC, 91% believed it would contribute peace and justice. Another study by the ACCORD International (2015) also found the majority of their 20 respondents also noted the beneficial social impacts of the ICC, such as raising awareness of existing law to protect against human rights violations and its ability to “touch the untouchables”. The desire for adherence to international human rights norms allowed the ICC to have a place in the Ugandan legal system, which could build the social foundation for a more just and sophisticated understanding of the law, which can further motivate legal reform. Furthermore, such awareness of human rights abuses and options to prosecute them could also prevent future abuses as the definitions of human rights abuse were clarified and action could be taken, which was consistent with Kim and Sikkink’s (2010) predictions of the use of human rights prosecutions in transitional justice.

Complicating this optimism, there is disagreement as to whether the ICC can exact justice consistent with Ugandan culture, tempering its efficacy. Rates of corruption and police abuse, as well as the social stigmatizing of human rights victims still were quite high (ACCORD International 2010). In ACCORD International’s (2015) study, 33% of respondents argued that the ICC was taking the focus away from restorative justice mechanisms that were highly present in the Aicholi culture and highlighting the West’s more retributive form of justice. Additionally, the study by the Human Rights Center (2005) showed the same spectrum of results as 66% of respondents favored more punishing consequences (trials, imprisonment and killing) and 22% favored more forgiving tactics of reconciliation and integration. Furthermore, ACCORD International (2015) also found that almost one-third of respondents considered the ICC an imposition of Western authority and had concerns of its Western bias. Therefore, the Ugandan experience paradigmatically falls in line with Snyder and Vinjamuri’s (2003) research of the possible ways in which human rights prosecutions could destabilize a region. Action should be taken within the context of a country’s nuanced political and social state at the time. The effect of the ICC was restrained due to opponents of its Western methods of justice. The ICC caused a further social divide and seemed like a Western, even neocolonial force imposing its own form of justice on the domestic legal structure. It ran the risk of damaging its credibility by ignoring local traditions and the people that support them. Furthermore, this also revealed another shortfall of the ICC in not informing the local people about its purpose and its methods. Few people knew about the ICC and mischaracterized it as an imposition of Western authority, rather than an impartial judge of human rights violators as Meernik (2003) suggested. Ultimately, the complex social impact of human rights violations and the politics of the justice made the ICC’s pursuit of justice for the victims much more complex.

There were still many strides made in the conflict and despite alternative explanations, the ICC could be directly attributed to the overall break down of the LRA, and consequently the small improvements in human rights in Uganda. One prominent explanation involved other international organizations such as the U.N. who sent their peacekeepers, that could account for the decreasing power of the LRA (Jowell 2014). However, the United Nations Peacekeeping Force, while acting as a deterrent against future violence, was limited to its military capabilities. It would not be able to resolve the need for justice and emotional closure within Uganda after such widespread human rights violations. The ICC could provide some sense of justice through its process. Additionally, the U.N. Peacekeepers would only be able to influence a small portion of the population due to its practical physical limitations. The spectacle of an ICC trial could be more effective in imparting human rights norms and demonstrating the strength of the international community in condemning human rights violators. Lastly, the U.N Peacekeepers were a military force, whereas the ICC served to bring about peace through solely peaceful means.

The effect of the ICC in improving adherence to international human rights norms and delivering justice in Uganda was much more tempered than the scholarly literature suggests. The ICC aided in reforming the Ugandan legal system, however its effect on crime and domestic and internal terrorism seem to be minimal. Additionally, the ICC may further complicate matters in the region as the debate between the ICC’s Western method of justice clashes with the traditional, restorative method of forgiveness. Its impact was far more nuanced than the academic literature suggested.

Bibliography

  1. Akhavan, Payam. “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism.” Human Rights Quarterly 31.3 (2009): 624-654.
  2. “Amnesty International Report 1994 – Uganda.” Refworld. Amnesty International, 1994. Web. 24 May 2017.
  3. “Forgotten Voices: A Population-based Survey on Attitudes about Peace and Justice in Northern Uganda.” ReliefWeb. Human Rights Center at the University of Berkley, 25 July 2005. Web. 24 May 2017.
  4. Jowell, Marco. “Peacekeeping Country Profile: Uganda.” Providing for Peacekeeping. Providing for Peacekeeping, 2014. Web. 24 May 2017.
  5. “Justice for Serious Crimes before National Courts.” Human Rights Watch. Human Rights Watch, 07 July 2015. Web. 24 May 2017.
  6. Kim, Hunjoon, and Kathryn Sikkink. “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries.” International Studies Quarterly 54.4 (2010): 939-963.
  7. “Making the Law Count: A Synthesis Audit of Legal Practice on Sexual Violence.” ACCORD International (n.d.): n. pag. ACCORD International. ACCORD International, Mar. 2010. Web.
  8. Meernik, James. “Victor’s Justice or the Law? Judging And Punishing At The International Criminal Tribunal For The Former Yugoslavia.” Journal of Conflict Resolution 47.2 (2003): 140-162.
  9. Snyder, Jack, and Leslie Vinjamuri. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” (2003).
  10. Silverman, Emma. “Washington State University.” Roots of the Lords Resistance Army. N.P., 29 Aug. 2014. Web. 24 May 2017.
  11. “The International Criminal Court and Conflict Transformation in Uganda.” ACCORD. ACCORD, 2015. Web. 24 May 2017.
  12. “Uganda 2016 Crime & Safety Report.” United States State Department. United States State Department, 2016. Web. 24 May 2017.
  13. “Uganda.” Freedom House. Freedom House, 2015. Web. 24 May 2017.
  14. “Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda: The Lack of Accountability.” Human Rights Watch. Human Rights Watch, Sept. 2005. Web. 24 May 2017.

About Rachel Zhao

Rachel Zhao is a '19 from New York City, majoring in Government and Psychology. Apart from the Dartmouth Law Journal, she is also involved in The Stonefence Review, the Dartmouth Asian Organization, and academic research in international relations. She is particularly interested in human rights and American foreign policy.

Leave a Reply

Your email address will not be published. Required fields are marked *