The article begins with a great anecdote. Her research is on the absence of international attention to children born of war-time rape. After presenting early results, a senior faculty member told her: “You’d better stop talking to international organizations about this issue until you publish…Otherwise, before you know it, you will no longer have a puzzle to explain, because these children will be on the agenda” (363).

Carpenter was startled by the suggestion that her academic work might in fact be norm entrepreneurship. She was even more surprised at the value judgment implied by the comment—that publishing an interesting paper on the phenomenon was a higher priority than bringing attention and assistance to a profoundly disempowered group. Carpenter’s article therefore explores the impact of engagement with human rights advocacy on her academic role, and the opportunities (and limitations) for an academic to engage in human rights advocacy.

Among her interesting observations:

• She notes that while “calls for calls for greater reflexivity in the discipline are now commonplace, they are rarely implemented in mainstream IR research. Even rarer are empirical studies of the IR discipline as a site in which global politics gets constructed” (364). Tellingly, when she tried to include a chapter on this topic in her book Forgetting Children Born of War, Columbia University Press insisted it be cut.

• Other pressures she faced in the IR discipline: to avoid “should” questions and focus on “why” questions (a bias she admits to imposing on her own students), to avoid publishing with a commercial press (even if it means the work will get a much larger audience, including policymakers and the human rights community), and to avoid asking questions that require methodological approaches not favoured in IR.

• Carpenter felt that the ethics review board process failed to provide guidance in interviewing vulnerable populations (by contrast I found UBC’s BREB quite helpful). But while she lacked assistance through formal channels, she seems to have worked things out over time—which I suspect is a common path.

• Very interesting was her attempt to ‘give something back’ to the community she was studying (organizations who assist children born of war). She is inventive in doing so: ranging from giving out copies of her publications, to sharing contacts, to reviewing grant applications, to consulting for UNICEF. “It seemed unethical to me to study a human rights non- issue without contributing to well-intentioned efforts to turn it into an issue” (369).

• Rather than a simple theory-practitioner divide she “encountered practitioners willing to listen to me as an academic, and academics hungry for me to articulate a clear policy stance” (371).

• Communicating with audiences outside of academia required new skills – such as putting together glossy policy documents (and the funds to publish them), hitting one’s talking points on radio interviews, and blogging (Carpenter is a key contributor to the Ducks of Minerva). In addition to these different skills are the different form of impact she sought.

• Most interesting was her observation that by actively engaging as a part of the advocacy community, she struggled to maintain forms of objectivity, but at the same time gained great insight into the obstacles that advocates faced. Had she wanted, Carpenter could have drawn on writers from John Dewey to Pierre Bourdieu to Iris Marion Young to explain theoretically why this experience of position-taking is relevant and epistemologically robust. But she would likely come to the same take-away lesson: “that interfacing with the policy community in order to disseminate research findings itself constitutes a form of participant observation that can supplement and enrich earlier research findings derived from multiple other methods” (376).

Carpenter’s attempt to advance a cause and an academic career is estimable, but also daunting. I was struck by how much extra work it required, beyond the usual demands of academia. It doesn’t appear that this additional labour receives institutional recognition–she didn’t mention how policy documents contributed to getting tenure, or how public advocacy got her time away from teaching. Maybe that’s as it should be. But the “dual role” she played reminded me of the one the one now ‘enjoyed’ by women who seek to have vibrant careers and be devoted mothers—you can have both, so long as you have great support and little need for sleep.

And she finds time to be a Star Trek and Battlestar Galactica nerd!

In the next two weeks, the Assembly of States Parties will undoubtedly address one of the most innovative and troubled aspects of the International Criminal Court: victim participation. Such discussions must take heed of recent decisions by Trial Chamber V on the upcoming trials in the Kenya situation, which introduced a dramatically different scheme for victim participation compared to previous Court practice. Will that decision lead to a shrinking role for victims at the ICC, or make it more efficient and inclusive? Much will depend on how the new scheme is operationalized, including the resources and direction the ASP offers.

The ICC’s approach to victim participation is without precedent. The only role for victims at previous courts was limited to witnesses, a role that was criticized by civil society actors and some states during the drafting of the Rome Statute. The Rome Statute ultimately included Article 68(3), which stated that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court…

Judges and court staff spent considerable energy in the Court’s early years interpreting and re-interpreting how victims would participate. Fundamental questions have been grappled with: Who is a victim eligible to participate? What modalities of participation are possible, and at what stages of proceedings? ? How can common legal representatives (CLR) for large numbers of victims be selected?

While rules for victim participation have become more concrete, they continue to leave many unsatisfied. This summer, several legal advisers for State Parties told me that it was a top issue for reform, primarily for budgetary reasons. While some civil society groups were pushing for more resources for victims’ legal teams, key State Parties continue to push for tightening legal aid and Registry budgets. These areas of the budget will continue to be squeezed so long as the Court takes on more situations (some referred to it by the UNSC) while State Parties hold to zero-growth in funding.

A Kenyan boy wears a t-shirt bearing the name of former ICC Prosecutor Luis Moreno-Ocampo

Kenya I and II: A New Direction for Victim Participation? 

Judge Christine van den Wyngaert weighed into the debate with a published paper that called for a dramatic rethinking in approach. Wyngaert argued that victim participation has been resource-intensive and has slowed down proceedings, while providing little real benefits to victims. She notes that the expected costs for victim participation in 2012 (including ICC staff, external lawyers, and in-country field staff) is estimated at over € 7 million. She also notes that Chambers spend considerable time assessing each individual victim’s application to participate. In her paper, Judge van den Wyngaert sees little role for victims other than to provide evidence, and assumes that their main interest is proving the guilt of the accused and receiving reparations. She pointedly questions whether “the participation system set in place is ‘meaningful’ enough to justify the amount of resources and time invested in it or whether it would be better to spend those resources and time directly on reparations” (p. 495). In contrast, Judge Adrian Fulford, presiding judge in the trial of Thomas Lubanga Dyilo, claimed that victim participation did not significantly extend the trial and that victims’ representatives made succinct and relevant contributions.

The new scheme proposed in the Kenya I and II decisions bears traces of Judge van den Wyngaert’s reasoning. It creates two categories of victims. First, those who want to appear directly before the court (in person or video-link). They must prove their status as victims through a submission to be reviewed by Chambers, which is similar to the current process. Second, those who may communicate with the CLR and inform his or her general thinking, but who do not need to submit an application to Chambers. The CLR will be based in Kenya and will only appear in court in The Hague for key moments such as opening and closing statements. Otherwise, the ICC’s Office of Public Counsel for Victims (OPCV) will handle legal proceedings.

This two-tier approach is apparently designed to enable participation that is both deep and broad. A few victims can participate directly in judicial processes. A much larger group will be ‘represented’ by the CLR in a diffuse way and make little demand on Chambers’ resources. This scheme clearly responds to the fact that several thousand Kenyans have expressed an interest in participation—often, as a number of Kenyan civil society members told me, out of the mistaken belief that participants are more likely to receive reparations. While the legal framework is in place, the Kenya I and II decisions leave much to be worked out. How will the CLRs consult with and inform large numbers of participants? How will they choose a small number of active participants? How will the CLRs and the OPCV jointly determine a legal strategy?

Victims and survivors of Kenya’s post-election violence airing their views on the ongoing ICC case. (Photo: Nandemu Barasa / West Fm)

What’s the Point of Victim Participation?

Whether this new approach will improve or harm victim participation depends on what participation should achieve—and there is little clear thought, and even less consensus, on that question. I would propose that there are three general concepts of victim participation:

Victims as legal clients: As much as possible, victim representation should mirror the relationship between lawyers and clients in domestic judicial proceedings. This approach – a favourite among lawyers who work with victims – emphasizes the determination of individual interests of victims, the need for ongoing consultation between lawyer and client, and a substantial role in trial proceedings. It opposes the idea that victims should be treated as an undifferentiated mass whose main interest aligns with the prosecutor.

Victims as secondary to the criminal trial: Prompt and fair verdicts are the ICC’s main contribution to victims. This approach emphasizes the threats that victim participation plays to the rights of the accused, and the possibility that it drains resources away from more effectively hearing and deciding criminal cases. Judge Van den Wyngaert can be situated in this camp, along with many common law lawyers.

Transitional justice approach: Rather than emphasize the impact of victims on legal proceedings, a victim-centred approach shifts attention from the courtroom to the lives of victims. It asks whether participation contributes material or normative resources to help victims pursue justice, and it is attentive to ways that victim participation could cause disappointment or even conflict between those allowed to participate and those who are not.

There is perhaps a zero-sum game between the first two perspectives, and the decision in the Kenyan situation is a significant shift toward the latter. But that shift doesn’t necessarily lead to a decrease in the ICC’s impact on victims’ lives. I would argue that this new approach doesn’t necessarily affect whether the Court can pursue the following four activities on the part of victims:

1. Ensure victims’ general interests, as distinct from the prosecution’s interest, are advanced during the trial.Ensure that individuals who most want to participate might get a chance.
2. Not only should such individuals make a meaningful contribution, it is important that other victims see this chosen few as somehow representing them.
3. Enable CLRs and their legal teams to interact with victims in a way that recognizes and acknowledges their grievances, either through individual meetings or more diffuse and symbolic actions.
4. Enable CLRs to lend their support to other processes that might assist victims, provided that it does not compromise their legal role. For example, during his tenure as CLR during the confirmation of charges in Kenya Case II, Morris Anyah met with diplomats and other possible donors to explain and advocate for the kinds of assistance his clients needed, from medical care to security.

The fork in the road: support for common legal representatives

The recent decisions in the Kenya situation create complications for victim representation, in particular the ability of CLRs to advance victims’ views and concerns without participating in most trial proceedings. On the other hand, the CLRs may be able to hear the stories and assess the interests of many victims without delays caused by waiting for their forms to be reviewed and accepted by Chambers. Doing so will require extremely competent, well-funded CLRs and field staff. They must be seen as unbiased and therefore able to represent all victims (a difficult task in divided societies). They must be able to communicate effectively to large numbers of victims, working with civil society and through the media. They must be able to collect concrete and current information about victims in general, identifying shared and perhaps conflicting interests. They must be able to quickly identify a smaller number of victims who are committed to more direct participation, and be able to have confidential and secure relationships with them. At the same time, they must be able to advance victims’ views and concerns through trial processes, both via the OPCV and in person. All these activities require both talented CLRs and committed support from the Court, for everything from communication and research budgets to effective OPCV partnerships.

Alternately, the recent decision in the Kenya situation might point in a different direction. It may point toward an increasingly small role for victim participation, in which a small in-country team relays general information to OPCV lawyers, who contribute in minor ways to judicial proceedings, while victims in their communities follow news accounts of the ICC like other members of the public. Perhaps local and international civil society could pick up some of the slack and help victims feel engaged with ICC processes. Or perhaps not.

The discussions held in The Hague over the next two weeks, in particular talks about budgetary priorities, will go a long way toward determining which vision of victim participation is pursued.

——————————————————————-

Further reading:

Academics and civil society have weighed in on the various directions taken by Chambers and the Registry. See, for instance, publications by Hakan Friman, Christodoulos Kaoutzanis, Mariana Pena, and the War Crimes Research Office. REDRESS, perhaps the most active NGO engaging both the Court and victims, has issued the most up-to-date analysis of victim participation generally and a brief Q&A on the Kenya I and II decisions.

For critical takes on those decisions, see ICTJ’s James Gondi and legal scholar Tatiana Batchvarova.

Toward the end of my Africa Initiative field research in Kenya, I visited a woman (I’ll call her Eunice) at her home in Kibera, a large informal community in Nairobi. I had met her a week earlier when she was a participant in a focus group that brought together victims of post-election violence to discuss their views on justice, assistance and the work of the International Criminal Court.

During the focus group, I was struck by Eunice’s straightforward answers and openness in discussing the day post-election rioters burned down her home. I couldn’t help but notice the mottled pink and white scar tissue on her hands and face, the only parts of her body not covered by clothes or a headscarf. Many Kenyans continue to suffer from post-election violence, but few have it written as plainly on their bodies.

My subsequent encounters with Eunice following the focus group highlight some of the ethical questions that confront those who research social justice issues. While ethics boards at academic institutions address some of these concerns — in particular the promotion of informed consent, and the avoidance of harm and conflicts of interest — these bodies do not determine all of the principles that orient researchers’ relationships with the people, organizations, or communities they study.

Ethical principles can inform many stages of research, from choice of topic to study design. But there is another set of issues: are ethical obligations limited to what you do as a researcher? Or, if you encounter people with problems that need to be addressed, and if you have the knowledge or authority or resources to help, should you do so? This question confronts anyone who witnesses suffering or injustice but whose job does not entail the direct delivery of assistance, from journalists to development experts to social science researchers. In my experience, people doing these jobs in countries with poor social safety nets often give aid to individuals they have encountered, from paying for someone’s medical treatment to funding a child’s school fees

Questions about ethical obligations beyond one’s research are more likely to come up when one encounters people suffering from illness, deprivation, or injustice. For that reason, it is not just what one studies, but also how that research is conducted. Methodology affects how a researcher understands and empathizes with the subjects of their study. It can also make one more aware of the need or opportunity for intercession.

For my Africa Initiative project I have used small focus groups to study perspectives on conflict in Kenya and Uganda, convening men and women with different experiences of violence. These discussions didn’t focus on individual accounts of suffering. Instead, we spoke about general concerns, the work of national and international institutions, and possible assistance programs for victims in the future.

This methodological choice came with costs, however. First, although we always tried to be open and respectful, there were some topics that participants avoided in mixed group settings —the social exclusion and re-integration challenges faced by former Lord’s Resistance Army abductees, for instance, when in the presence of others in the community who had not been abducted.

Secondly, this group approach made it more difficult to get a sense of what everyday life is like for individuals who have been victimized, and the obstacles they face as a result. In the focus groups I didn’t get a clear sense of the ‘scenes of justice’ that individual participants may hold — in past research I found people often have imagined moments they feel will help address their sense of injustice, such as a confrontation with a perpetrator who asks for forgiveness or a proper burial for a loved one after retrieving their remains.

Exploring these imagined scenes can illuminate personal understanding of justice and repair, but doing so requires intimate questions that are not appropriate for group discussions.

***

I visited Eunice, in part, to address these gaps. But there was a second reason. Comments she made in the group discussion suggested that she was living in a particularly dire predicament. I wanted to see what her life was like and I was prepared to shift our interaction away from that of researcher and respondent. I wanted to give Eunice the opportunity to ask questions and make requests of me.

In Kibera, Eunice brought my research assistant and me to where she lived, a one-room dwelling that was slightly larger than the single bed it contained. All of Eunice’s possessions were laid out on wooden shelves above the head and foot of the bed, including a small stove and paraffin lamp, two containers of eating utensils, and pairs of second-hand shoes she hoped to sell for a small profit.

Eunice took down a photo collage and used the pictures to explain her life before the fire. She and her husband had come from the Kenyan countryside to Nairobi, where they found casual labour in the city and cheap rent in Kibera. In one picture she leaned against the white wall of their home, wearing a colourful flower-patterned dress, her arms bare, smiling. Other photos showed two young boys, with the second born just after Kenyans went to the polls in December 2007.

As many are aware, the contentious election results suggested that incumbent Mwai Kibaki would be defeated by Raila Odinga (whose riding included Kibera), yet the electoral commission eventually declared Kibaki the winner. Criminal gangs and enraged youth in some parts of the country turned on members of Kibaki’s ethnic group, the Kikuyu.

Eunice and her husband were not Kikuyu, but their landlord was. Eunice was inside her home with her sons when it was set on fire, and was badly burned before she was rescued. Her infant died in the fire and her two-year-old died several weeks later from injuries. By the time Eunice emerged from hospital weeks later, her husband had left her and she was unable to work; ever since she has been forced to do irregular tasks in Kibera to pay for food. She often goes days without eating. These days, she told me, her only pleasure is listening to prayer services on the radio.

In our focus group, Eunice discussed issues of accountability and reparations. But most of all, for herself, she wanted to earn a regular livelihood. That would restore some comfort and dignity to her life. As such I have decided to play a small role in helping Eunice improve her economic situation. I have bracketed this relationship off from my work as a researcher and don’t plan to use our ongoing communication for any of my studies.

***

I realize that there are debates among researchers about charitable actions. There are fears it could compromise objectivity, or create an expectation that research participation leads to financial assistance — though I believe these concerns can be mitigated.

I could also be accused of making an arbitrary decision: why help this one person and not others, or why not support a sustainable program that will help all people who face predicaments similar to Eunice? Those are fair criticisms. In a decade of work as a journalist and researcher with survivors of violence and poverty, however, I’ve developed a particular strategy. I have contributed to non-profit organizations that target issues at a general level, but where appropriate I try to reasonably assist individuals I have met.

It would be an interesting to hear from other researchers: what rules or ethical positioning do others take in relationships with people they meet during research? What role, if any, should researchers play in scenes of justice?

Back in 1999 I traveled to Burma for my first real experience of foreign correspondence and investigative journalism. I went there to explore a possible uprising against the military government, a set of country-wide demonstrations that might begin on Sept 9, 1999 (9-9-99) to mirror the massive anti-government uprising on August 8, 1988 (8-8-88). During my time in the country I spoke to people who were afraid to say Aung San Suu Kyi’s name in a restaurant or on the street, out of concern that a military intelligence officer might overhear and throw them in jail. I met with former political prisoners, who amazed me not only by the hardships they faced but their acceptance of the fact that they would likely end up in jail again in the future. These pro-democracy activists, writers, and monks would not abandon their support for human dignity, and that put them on a collision course with the government. Sooner or later they would choose principle over silence and be jailed for it.

No one I met in Burma made more of an impression on me than Ludu Daw Amar, one of the country’s best-known writers. We met in the building that doubled as both her home and publishing house, in the city of Mandalay. She sat behind a big wooden desk in a small room, cramped by piles of literary magazines. She, her youngest son, and her husband had all spent time in jail for their words and beliefs. She told me about writing under the regime of censorship that had existed for years. I remember one of her comments very distinctly:

When I write, I begin with a circle. But I know the censor won’t let it be published. So I turn it into a square. When the censor gets it he will still make changes, and he turns it into a triangle. The trick is to write in such a way that the reader will see that triangle and know the circle that I originally intended.

Interestingly, Daw Amar thought that the Burmese were therefore extraordinarily sensitive readers, alert to the allusions and indirect references that writers used to talk about issues that the government deemed controversial.

Another memory from that night. The window in her office had bars across it, and a wisp of curtain. At one point she gestured to the street corner outside. Several men loitered there. Those are government agents, she told me. They keep watch, and follow whatever we do.

The day after my meeting with Daw Amar I returned to my hotel in the afternoon and found that some of my notes, which I had hidden behind a pipe outside the window, were gone. Nothing else from the room  had been stolen. While it was never confirmed, I assume that I had been trailed from her publishing house, and that intelligence searched my room the following morning while I was away. I can’t imagine the fortitude it would take to live in such a regime, continually at risk, knowing that any day you could be jailed at the whim of  thugs or censors, and continue to write and publish for decade after decade.

Daw Amar was 84 when I met her. She lived to 93. I wish she had lived just a few years more, to learn that the censor bureau had closed, and that she could stop with squares and write circles again.

LUKODI, UGANDA — An important visitor is coming to Lukodi, a village in the north of Uganda. To prepare, a man with a limp and a withered hand sweeps the fallen leaves and red dust off the ground under several mango trees. He arranges five white plastic chairs and two wooden benches. Shortly after noon an elderly gentleman arrives pushing a bicycle with no pedals. He and I chat while other community members begin to arrive. I ask the man what he wants to hear from the coming visitor, an outreach officer for the International Criminal Court (ICC).

“I want him to say that he will arrest Kony and bring him to book,” says the man, speaking in Luo to my translator and me. “And he should tell us how to address the problems that victims continue to face.”

The visit from the ICC representative allows me to observe how the Court portrays itself to a conflict-affected community. The following day I will ask my focus groups what they think of the presentation.

I suspect that the ICC representative has chosen Lukodi for the same reason I have — it is a community known for the massacre it suffered in May 2004. The elderly man tells me of the day Lukodi was attacked by a detachment of Joseph Kony’s Lords Resistance Army (LRA). He ran into the bush and escaped as the rebels abducted, burned and killed fellow residents. That night his wife searched for their daughter-in-law, who had a newborn child. The daughter-in-law was abducted by rebels, while the baby was left behind and trampled, and later died.

According to an investigation by the Justice and Reconciliation Project, the Ugandan organization I am partnered with, about 60 people were killed in that attack. Lukodi’s residents fled the area and most were displaced from their homes for more than three years, often living in squalid and unsafe camps. The mass killing and displacement capped two decades of civil war in the area, and often-brutal treatment by both rebels and government troops.

As we talk, more people arrive. The gathering today is festive. There will be dancing for the visitor: two drums are laid on the ground beside a set of calabashes, dried gourds that will be played with metal brushes. Women dancers walk about shaking the hands of friends, accompanied by the chiming of metal bangles on their ankles.

A young man tells me that many people have walked a long way to attend the meeting.  “We make some sacrifice to come today because during the conflict we couldn’t come together as a community,” he says. “We would keep silent about what happened. Now we can come together and speak to others, and they can note it down. Perhaps some people will help us.”

Jimmy Otim, ICC outreach officer, speaking to Lukodi residents

Eventually the ICC outreach officer arrives. Jimmy Otim stands under a mango tree with a bullhorn and delivers a half-hour speech, informing his audience that the Court became operational in 2002, began its work in Uganda in 2003 and has issued arrest warrants for five LRA commanders, one of whom has died and another who is believed dead. He also provides updates on recent Court’s activities: a new Chief Prosecutor was elected (Fatou Bensouda), Thomas Lubanga Dyilo of the DRC was convicted, and a 10-year anniversary celebration will soon be held in The Hague.

Otim is from this part of Uganda and he has visited Lukodi several times before. He nevertheless faces daunting challenges in satisfying his audience. This becomes clear during the question and answer period, after he has admitted that no LRA commanders have been arrested and that the ICC is scaling down its operations in Uganda. He is asked variations of complaints that have come up frequently in my own focus group discussions.

— Why has the Court only issued arrest warrants for LRA commanders, when the Ugandan military committed terrible violence to civilians during the years of conflict?

— Why haven’t the victims of conflict in Lukodi received compensation and reparations from the ICC?

— How can the ICC arrest Kony, if it doesn’t have its own police force or army, and if indicted people like Sudanese President Omar Al Bashir can move about freely?

Otim offers legal and operational answers to each of these questions, but I suspect that few members of the audience are truly satisfied. One asks, with some exasperation, whether the ICC is having a 10-year celebration simply for existing rather than for achieving anything. But the audience listens politely to Otim, and both a women’s group and a youth group perform dances before he departs.

The next day I will hold focus groups with men and women who attended the outreach session, to probe their evaluations of the Court’s work. Along with disappointment about the ICC’s failures in Uganda, there are interesting claims about the impact it has had on the behaviour of the Ugandan government and on the LRA. Moreover, I am beginning to get a sense of what people wish the Court would do, or the normative principles that should guide it. I’m curious to compare the responses in Uganda to what I will hear next in Kenya.

Lukodi village memorial

THE HAGUE, THE NETHERLANDS

I am now in The Hague, a well-ordered and pleasant city near the coast of the North Sea. For over a century, the Dutch seat of government has also been a laboratory where diplomats and lawyers and activists have worked on the rules and institutions of international justice. A bike ride around the city takes you from the neo-gothic stone Peace Palace that hosts the International Court of Justice and the Permanent Court of Arbitration, to the drab insurance company office that became the International Criminal Tribunal for the former Yugoslavia, to the Special Tribunal for Lebanon, and to the gleaming white towers of the International Criminal Court. I first came to The Hague seven years ago as a freelance journalist, to report on the trial of alleged perpetrators of genocidal acts in Srebrenica. My research on international criminal justice has taken me back several times since then, from reporting and research in Cambodia, Sierra Leone, Bosnia, Uganda, and elsewhere. On each visit I am struck by the incredible gulf between this calm, orderly city, and the testimonies of chaos and terror and grief that fill the courtrooms of its international tribunals.

On the one hand, the remoteness of the International Criminal Court (the focus of my current research) from the violence it investigates is a virtue. The ICC was created to provide some justice for exceptional crimes – genocide, war crimes, and crimes against humanity – when state governments are unable or unwilling to do so. A basic premise of the Court is that in certain circumstances, some forms of justice must come from outside a state. To make this ‘foreign’ justice legitimate, the ICC must operate according to impartial rules or accepted legal principles, and must follow the commitments made by those 121 states that have ratified the treaty that created the Court.

However, The Hague and its justice can also be too remote from victims and affected communities. To address that fear, the ICC was created with several victim-focused programs that didn’t exist for previous international tribunals, such as the post-WW2 Nuremberg tribunal or the ad hoc tribunals for Rwanda and the former Yugoslavia. The ICC seeks to bring information about the Court to affected communities through outreach programs, it seeks to bring victims’ concerns and voices into the Court as legal participants, and it aims to bring some direct aid to victims through assistance and reparations. My project with Africa Initiative seeks to evaluate these programs, drawing on voices within the Court and voices from violence-affected communities in Uganda and Kenya.

My research is therefore an act of translation as well as one of evaluation. Without doubt the language of justice in The Hague – spoken in English and French, rooted in legal traditions familiar to me, conducted in office buildings and embassies and Dutch cafés – is an easier one for me to understand. The real challenge for me in the next two months will be to hear perspectives on violence, justice, and peacebuilding that come from extremely different experiences and social contexts. And it’s helpful to remember that the justice that the ICC attempts to bring to distant communities is not just ‘international’ but also very ‘local’ – headquartered in a particular city on the Dutch seaside.

In the last couple weeks I’ve also read two interesting and very different takes on the relationship between democracy and international criminal tribunals–an issue that is central to my doctoral dissertation. Last year, Lara Nettelfield published Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (Cambridge UP). Lara, who I met while she was at Simon Fraser University’s School for International Studies, puts forward a nuanced case that the International Criminal Tribunal for the former Yugoslavia advanced democratic developments in Bosnia. She bases this claim on an impressive battery of research methods, from opinion surveys among soldiers in the Bosnian army to extended participant observation with civil society groups–including a bus trip with the Mothers of the Enclaves of Srebrenica and Zepa to demonstrate in The Hague.

Early evaluations of the ICTY impact on Bosnia were pessimistic, based as they were on the period when the court was its weakest and most dysfunctional, and when the context in Bosnia was at its most hostile to democratic processes. By looking at the ICTY over a longer period of time, Lara finds that its reputation and legitimacy improved as publics became better informed of its work and less convinced of its partiality. She also shows how citizen associations and survivors drew on ICTY norms, resources, and judgments, to pursue accountability domestically and internationally. The families of victims of the Srebrenica massacre sought accountability and reparations from  the UN and The Netherlands, for instance. The ICTY was particularly important in the early years after war, Lara points out, when it created a  space to discuss accountability  in the face of silence and inaction from domestic authorities. The Tribunal therefore catalysed democratic engagement, particularly through legal mobilization, even when this wasn’t an intended consequence. In fact, she argues, some of the most important legal mobilization by civil society groups came about because of the perceived shortcomings of the ICTY.

One of the big debates about international criminal tribunals is whether they should try and narrow their function — seeking criminal trials of a few senior leaders — or try to achieve a wide range of transitional justice goods, from telling authoritative histories to promoting reparations for victims to deterring future crimes. Interesting, Lara argues that international criminal tribunals should focus on the narrow job of seeking criminal accountability, but that in doing so they can have a modest but positive impact on wide range of democratizing processes.

Have you had the experience when you read the title of a book or paper and your heart seizes, because it appears that the author has just published your own research and rendered it a superfluous? That happened when I saw Marlies Glasius very recent paper, Do International Criminal Courts Require Democratic Legitimacy? in the European Journal of International Law. Of course, as is often the case, Glasius’ paper turned out to be a helpful interlocutor rather than a duplicate.

Glasius, who teaches at the University of Amsterdam and who wrote an interesting book on global civil society and the International Criminal Court, claims that there have been three main lines of criticism of international criminal justice:

1. whether individual criminal justice is an appropriate response to mass violence in all societies (the ‘it’s just liberal, Western, and/or retributive justice’ debate);
2. whether the pursuit of such justice in ongoing conflicts might not threaten peace processes and exacerbate violence (the ‘peace vs. justice’ debate);
3. whether international criminal processes can be considered legitimate given their lack of consultation and engagement with those populations affected by the crimes being prosecuted.

Glasius calls this third critique the problem of democratic legitimacy. She not only shows that scholars and activists have raised the problem, but she shows how different tribunals have responded to it–by better spreading information about the tribunals and their work to affected populations, by creating opportunities for court staff to ‘hear’ the voices of victims of mass crimes, and (at the ICC) by including victims’ representatives in trial processes.

In short, Glasius does a good job of showing that international criminal tribunals (ICTs) suffer from  a perceived legitimacy deficit. But in what ways is it a problem of ‘democratic’ legitimacy? Surprisingly, she doesn’t ask that question. It appears that she takes a lay person’s understanding of democracy – that a law or process is democratic if people give assent to it directly or through their elected state officials. On this account, clearly, ICTs will fail. In many cases, an ICT is needed because there is no democratically-legitimate state government to make rules. But there are other ways that rules and institutions can gain democratic legitimacy — in particular, through stakeholder consultation, through open and transparent debate, through mini-publics and polling, and so on. Moreover, unlike Lara Nettelfield, Glasius doesn’t look at what contribution an ICT could or should make to democracy. (Granted, she wrote a paper and not a book, so one can’t expet her to cover everything.)

In fact, rather than look at democratic legitimacy, Glasius spends the majority of her paper looking at understandings of legal legitimacy. She provides a very thoughtful gloss on different legal theoretical approaches to criminal law, and identifies principles that could be applied to ICTs to make them more responsive and legitimate with the people they affect.  It’s not really about democratic legitimacy at all, but it’s an interesting read.

Like Nettelfield, Glasius takes seriously some criticisms of the relationship between tribunals and victims and other affected populations. Both see the value in the shift toward greater communicative engagement by tribunals in situation countries, which began in the late 1990s when the ICTY recognized the importance of public outreach. Both recognize that ICTs can help open public debates on justice in countries which might otherwise have left those debates closed. While Nettelfield calls for ICTs to do their narrow functions well, and for scholars to attend to the modest improvements that ICTs can make in the larger political and legal ecosystem of democratization, Glasius proposes that ICTs do a better job of listening and responding to affected populations and victims.  Indeed, she argues that input could be formalized in some respects, such as by creating penal boards of victim and civil society representatives, to give advice on sentencing options. Thus, while Glasius concludes that ‘there is no viable argument that would support requiring a direct democratic basis for international criminal courts,’ she proposes courts that are more politically- and socially-engaged in societies. I suspect that Nettelfield would say: ICTs must be careful not to take on a role that is too political, or their legal legitimacy — and therefore their use as a resource for legal and political mobilization — might be undercut.

Food for thought for my upcoming fieldwork in Uganda and Kenya.

Much of the criticism is about the substance of claims about what has happened in Uganda and what needs to be done. Invisible Children (IC) downplayed the agency of Africans, up-sold American military intervention, ignored the role of the Ugandan government in violence and instability, and so on.

Reflecting on the issue, I think many would recognize that the Kony 2012 phenomenon raises warning bells for our democratic intuitions. This happens to be central to my dissertation, so I’m going to take a few minutes to think this through.

Let’s say that democracy means that people should govern themselves, by acting together as equals or — more common in our bureaucratized world — by contributing to debate in various public spheres (polling, stakeholder consultations, contributing to mass media, etc.) and by holding officials to account through elections and court challenges.

For these processes to work, we need decision-makers to be responsive and accountable to those people who are affected by their decisions. We therefore need to see appropriate relations of representation between affected persons, those demanding action, and those who take action.

Now let’s look at Kony 2012. What do we see?

As many have commented, the directly affected group — people in Northern Uganda and in other areas terrorized by the Lords Resistance Army — are in short supply in the video. We get very short phrases from two Ugandan politicians, and we get the story and a few quotes Jason Rusesll’s friend Jacob. Jacob’s story is heartbreaking — his brother was killed, and he was himself left impoverished and hopeless by LRA attacks. But we don’t have any sense what Jacob thinks about the situation is now, or what he thinks the solution should be. He is used to leverage credibility and emotion — which are important — but not to contribute to the discussion.

So, we have a situation where people are speaking for Northern Ugandans. Who are these representatives? Hundreds of cheering North Americans — few of whom I suspect know much about conflict in Uganda, the LRA, or peace building in Acholi culture. Senator Inhofe, possibly the most contemptible living American politician (he continues to argue that climate change is a hoax, because Genesis states otherwise). Gavin Kelly, the filmmakers’ toddler. And Jason Russell himself.

Obviously, Russell is doing the real work as the ‘representative’ here. He runs the organization that works in Northern Uganda. He has a long-term involvement in the region. And he is directly presenting what he takes to be the interests and perspectives of Northern Ugandans to decision-makers. However, the video gives us as many reasons to distrust as to trust Russell’s representative claim (which happens to be the title of a great book on this stuff by democratic theorist Michael Saward). He doesn’t give an accurate account of the status of the LRA today, nor does he mention the contribution of the Ugandan military to long-standing violence. He doesn’t mention any of the important local and national processes toward reconciliation and justice. And the style of his representative claim is incredibly self-centred, seemingly designed for hero worship.

Oh, one more important representative in the Kony 2012 advertisement is the chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo. The prosecutor will get in front of almost any camera to do PR work for the ICC and the Office of the Prosecutor. I don’t blame him for doing so, as the Court’s legitimacy and effectiveness depends on buy-in. And the Court actually has more robust processes of consultation with Northern Ugandans than some might suspect. That said, Moreno-Ocampo’s claim for what is best for the Northern Ugandans should have been balanced by other positions. That a prosecutor tells us that prosecutions are the solution may bring to mind an interview with a hammer telling us that the world is made of nails.

We therefore have reason to be skeptical of the representatives of Northern Ugandans in Kony 2012. As a result, and as I said in a discussion with a friend this week, we cannot say that Northern Ugandans are being given a voice in the video. The profile of (one of) their predicaments is being raised by people speaking about them.

But there’s another key democratic problem to the Kony 2012 phenomenon — who are the decision-makers? Not only are Russell and Moreno-Ocampo portrayed as the principle representatives of Northern Ugandans, they are asking the United States government to make the final decisions on the matter. Where is the call for appropriate action from the Ugandan government? More importantly, where is the request for assistance to the community leaders in Northern Uganda who have done incredible work in the past, and who need support and resources to continue to do so?

In sum, here is the situation from a democratic lens: a self-appointed representative of Northern Ugandans, whose credibility as a representative is undermined by the substance and style of his presentations, is asking fellow Americans to amplify his call for the  United States government to take action. Local voices, local leaders, and local processes are ignored or excluded.

Now, this might not be a big problem if Kony 2012 was one representation among many in the global public sphere. The problem is that it receives orders of magnitude more attention than other claims.

But that is also the main virtue of the Kony 2012 phenomenon. It has created the space for other representatives and other claims to be made. Again, I would highly recommend reading Erin Baines article for an example of how affected persons voices are actually being consulted, heard, and responded to. That is the payoff.

Today, my brain hurts from the mash of hopeful and dystopic visions of the future described. Not the future, exactly, because it’s happening now in various trials. As William Gibson famously put it, ‘The future is already here, it’s just not very evenly distributed.’

Compared to most academic conferences, the workshop was refreshingly action-oriented: How do we better link real-time digital maps of disasters with responder organizations? How do we amplify low-intensity signals of future crises – like disease epidemics or food shortages – so they pop out above background noise and enable earlier detection and action? How do we figure out how accurately voices in cyber-space represent people in “meat-space” (formerly known as ‘real life’), especially during dynamic and unstable situations like protests and conflicts? How do we get longstanding institutions to adopt new applications of big data and open communication, given the culture and skill sets of their employees. In short: How do we get stuff done?

While there was much talk of the uses and abuses of big data, there was little discussion of the normative implications.** As someone who studies democratic theory and global governance, it’s clear that the technologies and practices we discussed will have huge consequences for the future of democratic citizenship. I’m going to sketch out a couple ideas along those lines now, which I might further develop at a later date. I’ll organize these thoughts by referencing three issues or tensions for democratic citizenship: citizenship as institutional vs. agentive, citizenship as national vs. transnational, and citizens’ data as private vs. public.

Being citizens or practicing citizenship: democracy beyond institutions?

Crisis Map of Haiti

Patrick Meier of Ushahidi told us the powerful story of the crisis mapping response to the Haiti earthquake. With a hastily-assembled volunteer team in Boston, assisted by colleagues around the world, Patrick had a real-time, granular map of disaster-hit areas in Haiti up and running within hours. The map pinpointed with where people were and what assistance they needed, based on information coming from cell phone SMS, radio, email, the web, Facebook, and other feeds. Because much of the information was in creole, the project drew on members of the Haitian diaspora to help with translation. That map helped to save hundreds of lives. The director of FEMA in the US called the Crisis Map of Haiti the most comprehensive and up-to-date map available to the humanitarian community, better than those produced by agencies like the ICRC or the UN’s Office for the Coordination of Humanitarian Affairs.

Meier’s story spoke to dynamic technological and social solution to a problem, which allowed a flexible network of skilled individuals to do what large and highly-resources bureaucracies couldn’t. But it was also a story about civic action, or democracy in practice. Individuals acted out of solidarity rather than profit, pleasure, or institutional obligation. They didn’t vote or protest or litigate, asking others to make decisions on their own behalf. They worked together to get stuff done for the good of others. And the experience, from what I have heard, was incredibly positive. For those who have read Rebecca Solnit’s A Paradise Built in Hell, subject of a previous post, all of this will sound very familiar. She describes how disasters provoke individuals to work together in ways that are not only effective and life-saving but also profoundly positive—it is the kind of engaged, meaningful citizenship that many crave but rarely experience.

James Tully has called this civic citizenship, which he contrasts to the institutional- or status-based kinds of citizenship that have come to dominate our understanding of democracy. Civic citizenship is born from the practices we use to engage other people in the pursuit of civic goods. It is not limited to the rights of individuals to be free from government interference in our speech, property, consciences, etc., or the ability to elect our governors. Civic citizenship can be seen at work in co-ops, consumer boycotts, non-violent movements, and so on.

But there is a tension between the kinds of things we can do as active citizens helping others in a voluntary fashion, and the kinds of things that huge bureaucracies and complex legal systems can achieve. For that reason, we frequently want to bring the ethos of active citizenship into big institutions, along with new ideas and practices. Many of the participants in our workshop talked about the frustration of doing so, whether at the United Nations or the Canadian government or big media organizations. We did, however, hear examples of big institutions supporting and paying attention to civic action taken by crisis mappers and others. That’s good news.

For those interested in joining this online civic action, take a look at the Standby Volunteer Task Force – a distributed network of people waiting to lend others a hand in crisis mapping when disaster strikes.

Global Citizenship or Re-territorializing Cyber-space?         

Crisis mappers in Boston helping people in Haiti also illustrates the possible transnationality of online networks. In addition to democratic civic action across borders, big data users and online networks can also promote basic liberal rights. For instance, Amnesty International and other human rights organizations have been monitoring and documenting violations in Syria, Somalia, Libya and elsewhere. Media outlets like Global Voices, Al-Jazeera, Associated Press, and others seek to create a global public sphere in which individual voices are valued and broadcast for the validity of their perspectives, not only for their status as citizens of particular countries. Global Voices in particular shows this divorce from the conventional ‘foreign correspondent model’ in which stories from outside a state’s borders are brought to citizens ‘back home’ for their use and amusement.

Ron Deibert told a different story of the gap between territory and cyber-space. During the brief conflict between Russia and Georgia in 2008, Georgian government and military sites came under distributed denial-of-service attacks. To avoid being incapacitated, the Georgian government mirrored some of their sites on servers inside the United States, including a company in Atlanta. These American servers became the target of attacks. It was eventually discovered that many of the botnet attacks came from compromised computers in the US. In other words, one flank of the Russia-Georgia conflict involved American computers attacking other American computers!  Bye bye, Westphalian order.

But Deibert and several workshop participants suggest that future cyber-space may be very much more territorialized—or, more accurately, that states with significant resources will clamp down on internet liberty. The know-how to do so is quickly developing. Deibert and others spoke of the massive migration of talent and technology from military and intelligence services to other government departments and private industry. The pressure to do so comes from corporations, from non-liberal governments that want to restrict information and association (including China and Iran), but also from liberal states seeking to securitize the Internet. Indeed, the move to securitize the internet is consistent with a classic aim of liberal states—to guarantee the security of the private lives and private property of their citizens. In North American we’ve seen two recent pieces of legislation that show this pairing. Both Bill-C30 in Canada and SOPA in the US are intended by simultaneously protect us from criminals (including child pornographers and foreign thieves) and protect the intellectual property of corporations. Both bills were hammered by defenders of freedom in cyber-space. This is clearly a debate that will occupy democratic citizens for years to come.

Data and citizenship

Various workshop contributors referred to private and public data, but we didn’t get into the complex area of data ‘ownership’. Our personal control over the data we produce is continually decreasing, both because we produce more and more and because so many powerful entities are bribing and tricking us into surrendering it (including Facebook, Google, police and intelligence, telecoms, hackers, criminals, etc.).

This debate goes far beyond the issue of privacy or personal control of data. In addition to rewards of faster searches and more targeted ads, there are other reasons why we might want our data to be public or available to institutions. We might want a thick description of our socio-economic conditions in the hands of government to design better policies (this was one argument against the Conservative government’s termination of the “long form census”, which decreased the reliability and extensiveness of data produced by Statistics Canada). More to the point of our workshop, people in humanitarian crises might very much want their data made ‘public.’ Getting their location and health status to a humanitarian organization quickly might mean the difference between life and death, as it did for many after the Haiti earthquake. And people under attack by state or rebel forces, or oppressed by government security apparatus, may indeed want such data made public—particularly if it contributes to decisions taken by international actors.

In addition to the question who can access our data, we might also think about which people or institutions have the capability to interpret and mobilize it. During the workshop we heard repeated stories of the incredible resources that military and intelligence services have devoted to the acquisition and analysis of public data (in addition to their ability to access our ‘private’ data). Similarly, private companies like Facebook and Verizon not only “own” data, but have tremendous resources to make it work for them. The workshop participants gave inspiring examples of how more public institutions can use big data, from NPR journalists foregrounding and fact-checking claims on social media during the Arab Spring to crisis mappers helping locate those in need of aid. But most citizens or even citizen associations don’t have the skills and resources to do so.

Here, I would suggest, universities have a huge role to play in democratizing big data. At their best, universities bring together resources of talent and funding at a long-lasting institution, together with (one hopes) a public ethos. The University of Toronto’s Citizen Lab seems a great example of this.

Those are my quick thoughts for now. Thanks again to Mike Ananny and Taylor Owen for organizing this stimulating event and inviting me to participate.

** Footnote:  Normative considerations they weren’t totally absent from Saturday’s workshop. First, there was a background nod to ‘humanitarianism,’ with its ethos of impartiality and the need to just ‘save lives.’ Second, there was talk of Castell’s power and counter-power framework. That helps us understand relations in networks, but it is more social theory than normative evaluation. After all, Occupy, al Qaeda, and the maker movement are all counter-powers. Third, distinctions were often made between elite and non-elite voices in mainstream and social media. These terms have long been used to describe news sourcing (the tendency of journalists to collect information from political, economic, and cultural elites); it too is associated with Marxian or Gramscian ideas of status quo and revolutionary classes. But again, this is more social theory than normative evaluation. If some of the workshop participants elaborated on normative issues in their papers, my apologies for not including their input–I received the papers Saturday and haven’t given them a good read.

The ICC was clearly just one arrow in a quiver that the UNSC aimed at the Gaddafi regime. Resolution 1970 also contained an arms embargo, an asset freeze, a travel ban, and many strong words. It received a unanimous 15 votes, notably including non-enthusiasts of the ICC (the US, Russia, China, and others) and Libya’s own representative (who had defected from the Gaddafi government). Of course, these actions didn’t produce much immediate effect on the Gaddafi regime, and two weeks later the UNSC’s Resolution 1973 authorized states to take military action to protect civilians and assist humanitarian aid.

Supporters of the ICC rejoiced in Security Council backing, but there was soon skepticism. Writing in early April, after NATO forces had begun bombing Libyan government forces, Globe and Mail columnist Doug Saunders wrote:

By applying the pressure of justice to a savage leader, the ICC may have perpetuated, rather than ended, his crimes: Col. Gadhafi and his sons and generals do not dare end their campaign of violence if it means spending years in a Dutch cell.

The situation of Saif al Islam Gaddafi is more complicated. Despite various rumours in the fall that Saif was trying to turn himself over to the ICC, he was captured by the new Libyan regime in November. The question then became: who gets to try him, and where?

The basic principle at work here is ‘complementarity.’ The ICC is supposed to be a court of last resort. If a state performs an acceptable and timely investigation (and, if necessary, trial) of incidents that come under the ICC’s jurisdiction, then the Court must to defer to that state’s legal processes. Of course, how complementarity is to be worked out in the Libya case is a difficult legal matter. (See Dapo Akende’s very helpful piece on the legal ins and outs.) But, to date, the Libyan government claims that it will try the young Gaddafi, and will not relinquish him to the ICC.

If the Libyan government does retain control of Saif Gaddafi’s trial, the ICC might still have an impact? The outgoing Prosecutor has long-argued that the Court should also pursue ‘positive complementarity,’ in which it offers resources or assistance to help states fulfill their obligation to mount acceptable trials of international crimes. It remains to be seen whether and how such assistance might be offered… or accepted. 

Peace not Justice, says Saunders

In brief — this is already a scandalously long blog post, a habit I hope to break — how does the ICC case refer to the longstanding “peace vs. justice” debate. This blog will engage that debate on many future occasions. For now I will simply look at the two arguments that Doug Saunders has made in the Globe and Mail. Though separated by almost a year, these columns both claim that the ICC referral backed Gaddafi into a corner, leaving him only two options: fight and win, or face trial. In doing so, it prolonged conflict.

Saunders is one of the few Canadian columnists I consistently read and appreciate, and he lays a lot of arguments on the table. That said, I think his case remains thin.

What are Saunders’ arguments? In his 2 April 2011 column Saunders claimed that there is a pattern of dictators or rebel groups staying on the offensive out of fear of prosecution. The examples he gives are Zimbabwe and Uganda. The Zimbabwe case is interesting, but I’ve never seen any evidence for it aside from a Stephanie Nolen article in which an anonymous insider told her that Mugabe’s generals were afraid of prosecutions, and convinced him that he had to hold onto power. 

Saunders’ second example is Uganda, which has perhaps been the epicentre of the peace vs. justice debate. Any fair observer of the Uganda situation would have to admit that the evidence on that one is mixed. Yes, the Lords Resistance Army made noises about fearing a peace deal due to the threat of ICC prosecutions. But there is also evidence that ICC attention helped: a) contribute to the decision to exclude the LRA from south Sudan, which weakened the rebel group, b) convinced some lower-ranked LRA to leave the militia, c) contributed to improvements in Uganda’s domestic capacity and will to prosecute serious human rights violations, and d) brought some international focus to crimes committed by the Ugandan government forces (though some argue just the opposite, that the ICC focus on the LRA has given the Ugandan government a pass). I have yet to see the silver bullet evidence that shows that Kony, the LRA leader, would have signed and stuck to a peace deal with the Ugandan government were it not for the ICC.

Saunders’ recent column again brings up the claim that ICC justice can block peace, citing the Zimbabwe case once more. But mostly he attacks the outgoing ICC Prosecutor. “Mr. Ocampo’s image as a white-suited outsider, tied to the superpowers, has poisoned the idea of international justice and made it seem like a crusade,” Saunders writes.

Moreno-Ocampo’s critics are legion, and as his term ends I look forward to serious and thoughtful considerations of his actions and his legacy. I don’t expect that from a general columnist like Saunders. But it would have been nice to see a little nuance, rather than unsupported generalizations — that international justice has no deterrent effect, or that the Prosecutor politicized an otherwise apolitical court — and repeated indictments of  Moreno-Ocampo’s white suit. “He screwed up all of international criminal justice and he dresses funny” is not Saunders’ best work.

The Saunders argument, taken to an extreme, is that we should always be prepared to overlook atrocities provided that peace can be achieved more quickly. But without consistent, enforceable responses to severe human rights violations, societies may simply pursue tit-for-tat cycles of revenge.

That may be what we are seeing in Libya today, with what appears to be widespread violations by militias associated with the new government. I need to stop writing and turn to my own research. But I vow to return to the trajectory of transitional justice in Libya in a future post.