School of Politics and International Studies

Responsibility to Protect Student Journal

Posts tagged with: ICC

Disaggregating the “peace vs. justice” debate: breaking the silos and moving towards greater coherence

By Jacqueline J.Y. Cho

Jacqueline Cho is currently interning with the African Union Partnership Team at the United Nations, and was an intern at the Office of the United Nations High Commissioner for Human Rights at the time of writing. She is also working as a research assistant for Dr Gyda Sindre and helps coordinate the Politics After War Research Network. She recently graduated with a BA (Hons) degree in Politics and International Relations from Emmanuel College, University of Cambridge in 2018. Her areas of interest include conflict prevention and resolution, African politics and refugee studies. 

 

The question of how to deal with a difficult past is one that confronts every society emerging from a dark history. Since the mid-1980s, many such societies have chosen to address the legacies of pervasive human rights abuses, often with extensive international support. The pursuit of justice, with dominant forms being through trials and truth commissions, are said to be in tension with peace; much of the literature has framed this as a question of “peace versus justice” (see Baker, 2001). What is important to note, however, is that in practice, this dilemma is not as stark of a choice as presented and, more fundamentally, the notions of peace and justice that are in play in these settings are questionable. The current hegemonic understandings of both peace and justice are inadequate as guiding principles of policies concerning ex-combatants. In particular, the emphasis on ‘extraordinary’ forms of violence shapes perceptions of justice in a way that marginalises gender and structural injustice, which may undermine even the most minimal objective of these policies: the cessation, or at least the reduction, of direct violence. International actors should refrain from the tendency to design one-size-fits-all policies targeting ex-combatants with a preconceived end-goal of either peace or justice. Rather, the policies should be context-driven, which may take very different forms from case to case and involve addressing the structural injustice that preceded and contributed to the conflict.

Emergence of the dilemma

The question of whether investigating and prosecuting war crimes may trigger a return to violence traces its origin back to early 1990s as the United Nations began setting up the International Criminal Tribunal for the former Yugoslavia (ICTY) while the Bosnia-Herzegovina conflict was ongoing (Baker and Obradovic-Wochnik, 2016, p.283). Scholarly debate surrounding the issue subsequently framed this tension as a question of “peace versus justice”. What had been an ad hoc problem with the ICTY then became a permanent feature of the international judicial system after 2002, when the Rome Statute establishing the International Criminal Court entered into force. The potential clashes between creating accountability for international crimes through justice measures and laying the foundations for peace concerned not only the leaders who might be disincentivised from making peace if they were indicted for war crimes, but also resonated throughout civil society. One early example of this was the instrumentalisation of ICTY’s findings into politics of ethnized collective narratives, hardening inter-ethnic boundaries and generating tensions.    Continue reading

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The Responsibility to Protect and Sub-Regional Organisations: The Case of The Gambia

By John Bosco Nizeimana

John Bosco Nizeimana is currently a visiting researcher at Georgetown University-School of Foreign Services in the Department of African Studies (Washington DC, US). Bosco holds a Master of Science degree in International Relations from the University of Zimbabwe. He previously worked as full-time Associate Lecturer at the University of Zimbabwe, in the Deptartment of Political and Administrative Studies.  He is a PhD student in South Africa, at Rhodes University, researching the implementation of the Responsibility to Protect norm in Sudan and Libya.

 

The outcome of the December 2016 Gambian presidential elections took the world by surprise. After 22 years in power, Yahya Jammeh was voted out of office. In July 2017, Gambians celebrated Jammeh’s political announcement in which he accepted the election results, conceded defeat, and congratulated the new President, Adam Barrow, promising a smooth transition of power. Jammeh’s decision was applauded worldwide and was seen as the most important step towards democracy in Africa, and in The Gambia in particular, since the country has achieved no peaceful transition of power through national elections since its independence.

Two of the major electoral promises made by Barrow were to reverse The Gambia’s withdrawal from the International Criminal Court and to reinstate the country’s membership of the Commonwealth. Barrow’s promises angered Jammeh who soon after he accepted defeat went against his initial declaration and declared that, ultimately, he was not going to accept the election results. He vowed to fight against what he called “external interference in the politics of The Gambia” and threatened bloodshed if force was used to eject him from office. His declaration was followed by the announcement of a 90-day countrywide state of emergency.

Across The Gambia, there were fears of political unrest, civil war, and massive human rights violations. The UN Security Council, the African Union, and the Economic Community of West African States (ECOWAS) expressed their concern and called for Jammeh to step down. Despite this, Jammeh’s refused to step down, creating a situation that brought The Gambia at the centre stage of global attention.

The situation in The Gambia was of concern to the international community, particularly ECOWAS and the UN.  In his June 10th, 2016, statement, the Special Adviser to the UN Secretary-General on the Prevention of Genocide, Adama Dieng, noted that President Jammeh referred to the Mandinka, an African ethnic group with a strong presence in the Gambia, as “enemies, foreigners, and threatened to kill them one day and place them where even a fly cannot see them”. Dieng condemned Jammeh’s “public stigmatisation, dehumanisation and threats against the Mandinka” and warned about the danger of such statements that can contribute to dividing populations, feed suspicion and serve to instigate violence against communities based solely on their identity. Continue reading

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‘This delicate mosaic may be shattered at any time’: The ICC, technocracy and the liberal West’s moral imperialism

By Margot Tudor 

Margot is an ESRC-funded PhD candidate in Humanitarianism and Conflict Response with the HCRI at the University of Manchester. Her main research areas of interest are peacekeeping, global governance, colonial continuities and the history of humanitarianism.

 

This article argues that the colonial continuities present in the operations and ideologies within the structures of the international justice system have diplomatic implications. By investigating the International Criminal Court’s (ICC) attempts to prosecute the President of Sudan, Omar al-Bashir, it seeks to verify accusations of anti-African bias and neo-colonialism. Additionally, the historical roots of these imperial legacies and their contemporary double standards have provided political weight to those attempting to evade international law. This project presents a uniquely holistic and interdisciplinary approach to unite the fields of global justice, transitional justice and post-colonialism through utilising the frameworks and literature from international law, history, international relations and politics. It intends to build upon the burgeoning literature considering the connections between ‘new imperialism and histories of humanitarianism’ (Edmonds and Johnstone, 2016, p. 1). It will be argued that the transitional justice process excludes victims from the production process of justice through legalistic and technocratic approaches which present Western approaches to justice as superior. This, therefore, divorces victims from their access to the judicial process. In this way, this project hopes to build upon post-colonial frameworks and use them to view the power sources within global structures and institutions, particularly those within the morality industries (humanitarian, governance or judicial).

 

Introduction

To them it is our part to give wise laws, good government, and a well-ordered finance, which is the foundation of good things in human communities… where the light of morality and religion can penetrate into the darkest dwelling places. This is the real fulfilment of our duties; this, I say again, is the true strength and meaning of Imperialism. – (Lord Carnarvon, cited in Cain, 2012, p. 563)

The International Criminal Court’s (ICC, or the Court) case against Sudanese President Omar Hassan Ahmad al-Bashir sits at the crux of several geopolitical and legal dilemmas currently holding the attention of the international community. News of al-Bashir’s arrest warrants – the second warrant added the genocide charge in 2010 (ICC, 2010) – echoed around the globe and yet the Court still awaits his presence in The Hague and his victims await justice (ICC, 2009). Eight years after the first warrant was issued on several charges of crimes against humanity and war crimes, al-Bashir walks free, retains his Head of State status and has regularly travelled outside Sudan to attend international conferences and diplomatic engagements (Nuba Reports, 2016). By examining the political stances of the African Union (AU), Sudan and the Court, the article will show how the Court’s procedures and theoretical approach to justice retains problematic elements of the historical evolution of international justice, diplomatic paternalism and moral imperialism within the Westphalian system. By examining the aftermath of the failed arrest warrants, it will demonstrate how far victims have been ignored in preference of a morally imperialistic and technocratic approach to justice. Overall, it will be shown that the ICC’s less-than-subtle approach to international criminal justice has aided al-Bashir in his evasion of justice as it has fractured diplomatic relations between the AU and the international community.

Recent accusations of neo-colonialism and excessive Western influence on the Court have contributed to negative media and diplomatic thought regarding the independence of the ICC (Peskin, 2009, p. 307). The perceived impartiality of the Court, as an arbiter of objective justice, is crucial to its success as a popular organ within the United Nations (UN) system and thus these criticisms have shaken the core of the beliefs which uphold the ICC’s operations. Victor Peskin’s interviews have shown how these allegations have influenced those who work for the Courtp.  ‘“It is a very harmful debate for us…and it is harmful to perceptions,” of the Court, lamented a high-ranking official in a December 2008 interview’ (Peskin, 2009, p. 307). It is with concerns of exploitation within the international legal system in mind that this article seeks to determine how far accusations of colonial continuities within the Court can be verified. In this way, this article argues that transparency and removal of all double standards is the only method available for improving participation in the endeavour of international criminal justice and ensuring that victims’ rights are prioritised.

By looking at the African Union High-Level Panel on Darfur (AUPD) report in detail, this article will examine how the international intervention of the ICC in this case has not permitted ‘African solutions for African problems’ and how, instead, the Court has pursued a paternalistic attitude in its interactions with the AU (Maathai, 2010). It will show that the ICC’s preference for legalistic and technocratic approaches to justice have, in the tradition of Western international criminal justice cases, instrumentalised the victims within the court and oversimplified their experiences of the conflict for the ease of legal binaries. It will also explore how far the Court’s assumptions regarding liberal democracy can be seen as part of the broader peacebuilding strategy of the UN. Although peacebuilding intends to ensure stability for the future of a region, it also assumes that the Western vision of civilisation, as outlined in Fukuyama’s thesis, is the ‘end of history’ (Fukuyama, 1989, p. 3). Thus this attitude can lead to justice processes seeking morally imperialistic results (Marks, 1997, p. 474-475). As a UN representative of Sudan commented when the Security Council (UNSC) referred the case to the ICC:

The Council today did not settle the question of accountability in Darfur. Rather, it exposed the fact that this Criminal Court was originally intended for developing and weak states, and that is a tool for the exercise of the culture of superiority and to impose cultural superiority. It is a tool for those who believe that they have a monopoly on virtues in this world, rife with injustice and tyranny. (UN Doc S/PV.5158, 12)

Unpicking the assumptions that underlie the rhetoric, beliefs and therefore operations of the Court is crucial for understanding the implicit liberalistic attitudes towards non-Western approaches to justice. Filtering down through the global governance system are the preferences for legalistic, ‘expert’ and bureaucratised processes. Due to the ‘one-size-fits-all’/‘toolbox’ approach towards international criminal justice, the complexities of individual societies and the needs of minorities are ignored in preference of establishing a liberal democracy. These abbreviated approaches to justice, as part of the peacebuilding endeavour, remove all legitimacy from alternative judicial processes. As Rubli argues, ‘Social change is considered to be an outcome of legal-institutional reforms and hence, transitional justice is often externally imposed in a paternalistic and top-down way’ (Rubli, 2012p.  11).

Historical context

The development of international criminal justice

Establishing the historical context of the al-Bashir case is important for understanding the complex political circumstances of al-Bashir’s warrant. Before briefly describing the alleged crimes of al-Bashir’s government, it is important to analyse the ideologically fraught arena of international criminal justice, within which al-Bashir’s case will be deconstructed. The development of international criminal justice processes at the beginning of the Twentieth Century accelerated following the Second World War as transitional justice became a tool for the post-war Allies. Nuremberg served as an experiment into the foray of international criminal justice (Jackson, 1945), its first lesson being that the role of history, memory and victimhood are at the centre of its endeavour. Prosecuting a crime that holds such historical and political symbolism presents many unique obstacles that differ from domestic criminal proceedings. Appearances of objectivity are even harder when those at home might not fully understand the difficulties of working within legal frameworks where, ‘…emotions are “regulated” and subject to the requirements of the legal settings and procedures’ (Karstedt, 2016, p.  51).

Additionally, the role justice plays in keeping the peace within a post-conflict society is paramount. The catharsis of a justice system can serve to aid a community in rebuilding and regaining stability; ‘In the long run, the absence of a fair judicial and penal system results in a failure to provide a sense of justice for the victims of war crimes, human rights violations, and other criminal activities, and that sense of justice is essential to achieving sustainable security’ (Field and Perito, 2002-2003, p. 81). The securitisation of justice – i.e. discussions about how far justice processes are an important tool for preventing further conflict – has been an area of scholarship that has grown in tandem with the peacebuilding rhetoric that will later become crucial to this article’s discussions of neo-colonialism. In this way, Nuremberg was the first site where international lawyers discovered the complex and unique requirements that (successful) transitional justice processes demand.

However, the advent of the Cold War caused the international community to reprioritise their diplomatic efforts, and prosecutions of Axis powers were no longer deemed necessary unless they incriminated those who occupied the Eastern European border (Bazlyer, 2016, p. 111). During the decolonising period, this pause of prosecutions seemed to indicate that international justice was no longer a luxury that could be afforded. The juxtaposition of the growing human rights rhetoric in Western politics jarred with the realities of their imperial crimes abroad (Klose, 2013, p. 48). As Sartre argues, ‘You who are so liberal, so humane, who take the love of culture to the point of affection, you pretend to forget that you have colonies where massacres are committed in your name’ (foreword of Fanon, 1963, p. 12). Only once the Berlin Wall was brought down in 1989 was the West keen to reignite its role as legal arbiter of human rights through the means of international justice processes (Kaptenijns, 2013, p. 425). To this end, the UN Charter’s Chapter VII was increasingly interpreted more flexibly as the global push for humanitarian interventions fought against the post-colonial struggle to protect sovereign integrity (Ayoob, 2002, p. 83). As Mamdani argues, ‘[t]he transition from the old system of sovereignty to a new humanitarian order is confined to those states defined as ‘failed’ or ‘rogue’ states. The result [was] a bifurcated system whereby state sovereignty [is obtained] in large parts of the world but is suspended in more and more countries in Africa and the Middle East’ (Mamdani, 2010, p.  54).

The development of international criminal justice systems throughout the latter decades of the twentieth century has, therefore, taken place within the environment of a post-Cold War victory, a ‘New World Order’ narrative which has allowed the West to set the tone for what international justice entails and who it is for. The signing of the Rome Statute in 1998 and development of a permanent International Criminal Court in 2002 with the role of prosecuting individuals (as opposed to the mandate of the International Court of Justice which prosecutes member-states of the UN in a civil court) was quickly perceived as representative of much of the global community’s philosophical attitude towards international criminal justice:  the supremacy of globalised legalism over other forms of reconciliatory processes (Bongiovanni et al, 2014, p. 760). The ICC’s mandate was seen by many as ‘…the missing link in the international justice system’ (United Nations, 1998-1999). However, hopeful beginnings began to crumble as the ICC’s actions proved no more enlightened than the colonial biases and double standards inherent to the Permanent Members (P5) and veto structure of the UNSC. As Thakur argues, ‘…there is a growing perception that an initiative of international criminal justice, meant to protect vulnerable people from brutal national rulers, [that] has been subverted into an instrument of powerful against vulnerable countries’ (Thakur, 2016, p.  372).

Darfur and the alleged crimes of al-Bashir

The roots of the conflict in Darfur begin long before 2003 with the extreme political and economic marginalisation and oppression of the Western region of Sudan by government forces in the capital city, Khartoum. However, in February 2003 the Sudan Liberation Army attacked the government forces, which had been dominating their communities for years and utilising colonial economic and political structures. This initiated a disproportionate counter-response by the government who were keen to protect their social and political hierarchy within the region. The government utilised local ‘Arab’ militias, the Janjaweed, to attack those in the Darfur region. Al-Bashir’s government is accused of ordering the militias to terrorise the Darfur communities by burning villages, encouraging sexual violence and murdering thousands (Austin and Koppelman, 2004, p. 26). Mills has commented on the international response to the conflict, saying ‘The world was slow to respond. First came humanitarian assistance… A year or so later, newspaper editorial pages started referring to the conflict as genocide’ (Mills, 2012, p. 414).

 

Legalism ‘barbarises’ its own victims 

In 1998, the ICC was hailed as the ‘Victim’s Court’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1), intending to put survivors and their families’ experiences of the international criminal justice system at the forefront of its priorities. Therefore, ‘In addition to being called as witnesses, victims would have the right to be heard by ICC judges at all stages of the proceedings’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1). Moffett argues that ‘The broadening of international criminal justice to be more responsive to victims brings challenges of its own in reconciling the need to deliver justice to potential thousands of individuals, against the logistical and financial limits of a single international institution’ (Moffett, 2015, p. 283). Perhaps a national court could hope for this level of victim support, but an international court with only five field offices has virtually set itself up for failure.

Despite the recent ‘local turn’ (Mac Ginty and Richmond, 2013, p.  763) in peacebuilding in response to ‘frustrations at the technocratic and unresponsive aspects of orthodox peacebuilding policy’ (Firchow and Mac Ginty, 2013, p. 232), international justice practitioners have yet to respond to its critics with its own evolution. Human rights defenders on the ground have argued that ‘the Court remains too far removed from the field and from the concerns of the affected communities. Largely absent from the regions where the victims live, the ICC has not as yet succeeded in making itself known’ (Glasius, 2009, p. 510). In this way, the victims are removed from the consultation and procedural process and their experiences filtered through a Western legalistic process which has constructed tropes of African victims of conflict which are often found in ‘humanitarian’ marketing – often infantalised and in need of parental guidance (Kennedy, 2009). Apoliticising victims removes their identity which may have been the reason for their victimhood in the first place. Removing a victim’s political agency from their involvement in the Court process is not only offensive to their capacity for autonomous voice (Moffett, 2015, p. 286) but is also detrimental to the Court’s understanding of the conflict. As was seen in the Nuremberg Tribunals, many Jewish victims felt that the prejudice against their identity had been erased in preference of interpreting the Holocaust as ‘yet another manifestation of the atrocities performed by the Germans in the countries they occupied’ (Yablonka, 2012, p. 303).  

One of the reasons for the Court’s detached attitude in regards to victims and their families is its idea that they would complicate the judicial process as they do not fit neatly into legalistic language. Instead, their narrative is co-opted and manipulated to suit the Western framework of justice. Thus, they ‘were treated as objects of moral concern, rather than subjects with any rights to present their own interests’ (Moffett, 2015, p. 283). In addition to logistical issues such as language interpretation and physically encouraging a witness to attend the trial at The Hague, there are power imbalances which intentionally attempt to remove the ‘local’ from the Courtroom, which arguably derives directly from the colonial experience. As Doughty argues, ‘Ethnographic work on bilingual courtroom transitional in post-colonial or colonial contexts emphasises power-laden linguistic shifts that occur between ‘local’ language and ‘courtroom’ language, where ‘local’ means both ‘nonlegal’ and ‘nonwestern’’ (Doughty, 2017, p. 245). This sanitised approach favours Western assumptions of what victims want rather than including them within the consultation process. As Rubli has discovered, ‘The lack of context knowledge is mostly substituted with expert knowledge. It is often based on ‘received wisdom’ and assumed causal beliefs about transitional justice or ‘experts’ simply evoke international norms and standards without linking them to the context. Thereby external ‘expert’ knowledge is considered to be superior and trump popular and indigenous conceptions about how to deal with the past’ (Rubli, 2012, p. 11).

Attitudes towards transitional justice and international law – and decisions over who is allowed in the process and to what degree – are directly involved in constructing the political narrative of the community’s future (Tietel, 2002, p. 385). The recurrent exclusion of victims from the future narrative of their own communities’ possible reconciliation highlights the paternalism of this approach. Impartiality, within the ‘uneven moral economy of international justice’ (Doughty, 2017, p. 246), is illusory, as it sets out to silently bias the more powerful approach (i.e. the status quo of international justice – a Western approach) and ignores the structural imbalances which remove victims from their intended procedural role and agency within their own historical and legal narrative (Moffett, 2015, p. 287). Therefore, ‘The legalist lens that transitional justice takes limits the focus to specific sets of actors for specific sets of crimes committed within a rather artificial period of time, and thus determines the categories of when, to whom and for what transitional justice applies’ (Rubli, 2012, p. 10).

Legalism has also encouraged the structural preference of legal binaries:  innocent/guilty, victim/perpetrator, bystander/rescuer, etc. With her new studies of the realities on the ground, Lee Ann Fujii has shown that genocidaires should not be painted as wholly evil as this erases the reality of their behaviour. Appreciation of the reality of complex wrong/right-doing during conflict would help to bring the Court’s interpretation of the conflict into better alignment with the actions in the conflict. As Fujii has explored, ‘…even the most active killers – those who clearly fall under the category of “perpetrator” – were capable of acts of rescue when the circumstances allowed them to do so. Acts of rescue, to be sure, did not absolve or make up for their participation in mass murder. Yet, to overlook these acts of rescue would be to overlook the extent and form of rescue activities during … genocide’ (Fujii, 2014, p. 157-158). In this way, the legal binaries of Kohn’s described ‘epochal contest’ allow those in power to choose who it is politically advantageous to demonise through unrealistic assumptions about behaviour in conflicts.

Ignoring the complexities on the ground for the ease of fitting into the ‘one-size-fits-all’ legal framework will do little to aid the additional reconciliation efforts that are performed in addition to judicial routes (Rubli, 2012, p. 11). This bureaucratised method of peacebuilding through justice dehumanises those who are experiencing conflict by using metaphors like picking and choosing peacebuilding ‘tools’ with which to ‘[mix] paint’ (Goetschel and Hagmann, 2009, p. 62). These detached metaphors further patronise the locals’ failure to solve the complexities of the political situation. The political and emotional influence of the trial should not be neglected and more holistic approaches must be employed to better perform justice for victims on the ground – distant from the Court and yet directly influenced by its outcome. Thus, ‘[t]ransitional justice mechanisms have all too often been introduced without regard for the internal dynamics of the society for which they were intended, and thus are “abstract from lived realities”’ (Rubli, 2012, p. 11).

 

The Mbeki Report and the power of self-determination

The Mbeki Report (also known as the African Union High-Level Panel on Darfur or AUPD) was the result of the Peace and Security Council’s (PSC) decision to confront ‘issues of accountability and [combat] impunity…and reconciliation and healing…’ whilst simultaneously requesting a deferral from the UNSC (Mbeki, 2009, p.  205). Some have argued that the report was supposed to replace the need for the ICC’s intervention but this section will argue that the report clearly seeks justice and accountability from those guilty of crimes in Darfur; it simply requests that it be an African process so as to be part of a cathartic process of healing for Sudan.

As an influential politician, Thabo Mbeki’s comments have had a wide reach within the AU and those interested in the geopolitical shift towards ‘African Solutions for African problems’. The (physical) fight for self-determination in post-colonial years has been seen as an encouraged method of rebuilding oneself following the oppressive psychological damage of colonial rule (Fanon, 1963, p. 94). As such, the battle continues for autonomy within the humanitarian sphere:  the right to protect one’s neighbour. Mbeki writes that he believes ‘it is Africa’s crisis and, as such, Africa has a duty to help the people of Sudan to achieve a lasting solution’ (Mbeki, 2009, p. 206). In this way, the AU is establishing itself as a defender of human rights, determined not only to investigate the truth of the crimes committed, but also to ensure that those believed guilty will face a courtroom. As an ‘idiom in most African cultures [states,] you do not fold your hands and just look on when your neighbour’s house is on fire’ (Kiokio, 2003, p. 820). Mbeki’s report reads as a manifesto for the AU’s increased role in global governance, recognising the need for support from the international community whilst establishing itself as a respected party with a significant stake in the case. Therefore, understanding that ‘the task [of implementing their Recommendations] also requires commitment from, and action by, various actors and entities, especially the Government of Sudan and other Sudanese stakeholders, the neighbours of Sudan and the rest of the international community, including the United Nations’ (Mbeki, 2009, p. 206).

Ignoring the potential for self-determination, or encouraging it only through conditionality, can be damaging to the independent stability of a post-conflict state, which in turn ignites development debates surrounding dependence (Brett, 2016, p. 3). Paradoxically, by removing autonomy from the victims, the West both highlights its fears of a ‘un-modern’ post-conflict state whilst also picturing post-conflict states as political ‘blank slates…[implying] that post-conflict societies represent a social and political vacuum’, fertile for transformation into liberal democracies (Rubli, 2012, p. 16). In reality, the AUPD has stated that this belief, and the paternalistic steps that often follow the assumption of apolitical post-conflict states, is dangerous to the future of an independent Sudan. They argue that, ‘Both the Sudanese actors and players in the international community should understand that what Sudan needs is strong and cohesive leadership collectives which enjoy the necessary confidence of the constituencies they lead, to enable them to ensure that these constituencies participate seriously as agents of change in the process of giving birth to a new Sudan’ (Mbeki, 2009, p.  210).

In line with the principle of complementarity, Sudanese opposition politician Sadiq al-Mahdi has argued that a hybrid court (with both Sudanese and international judges) may provide the best solution for encouraging greater Darfurian consultation, and most importantly, may be the only logistical option that could physically put al-Bashir in the dock (The Economist, 2008).

 

The Court and its ‘Mission Civilisatrice’

The history of geopolitical movements in the twentieth century have directly influenced how we determine success in justice processes today. Rubli states that ‘The dominant normative lens (to facilitate transitions to democracy) determined which kind of justice measures were considered as appropriate and why certain measures were recognised as the legitimate justice initiatives during a time of political change’ (Rubli, 2012, p.  5). The rhetoric of liberalism and what we determine as a ‘successful’ state is at the core of international justice discourse since the Court’s involvement is part of a larger political endeavour to ‘transition’ a ‘failing’ state into a liberal democracy (Sooka, 2006, p. 313). As Fletcher et al.’s empirical study argues, ‘if states are closer on the continuum of liberal democracies, the necessity for an intervention seems to be less immediate… This raises the question of whether universal principles can be enforced and whether that is even a desired goal’ (Fletcher et al, 2009, p. 217). This is despite the fact that, ‘[marketisation and democratisation are] often more destabilising and may even provoke a return to conflict [when believed to be, in of themselves, sources of peace]’ (Sriram, 2007, p. 579).

In this way, the Western desire for cultural, political and moral supremacy over other states – through the judicial expansion of liberal market ‘human rights’ rhetoric – seeks in reality to limit the autonomy of more fragile states in a paternalistic fashion (Paris, 2002, p. 638). Therefore, in a palliative sense, the West manipulated its ‘White Man’s Burden’ of fighting for universal rights into a method of utilising justice systems to ‘resign’ from the ‘systematic economic abuses and the legacies of inequality and poverty,’ which lie at their door (Rubli, 2012, p. 15).

The roots of many conflicts within ex-colonial countries, including Sudan, are permeated with the injustices experienced due to colonial territorial or economic divisions (Mbeki, 2009, p. 207-208). One could argue that the hypocrisy of these impunities, which remain largely unknown and through which the disastrous consequences of self-interested censorship missions like Operation Legacy (Sato, 2017, p. 5) have been made visible, has contributed to outrage over the lack of non-African prosecution within the ICC (Thakur, 2016, p. 372). Although the ICC has restricted itself to crimes from 2002 onwards, it is not the first criminal justice strategy that has been manipulated by the international community so as to protect Big Interest states and ensure their cooperation with the globalisation vision. The legal strategies constructed by the international community to hide violence in the colonies exemplify the double standards that are implicit in the definitions of what a ‘war crime’ has come to mean in contemporary international criminal justice. It seems that the power of colonial nations, and their authority over the construction of the Geneva Conventions, the UN and global humanitarian norms, has allowed Britain and France to forge the laws of war to their benefit and to the detriment of their combatants. Utilising their position as leaders of the new humanitarian movement of the post-World War II international community, they have been able to manipulate the legal definitions that we still use today. Indeed, by:

[d]escribing the situation with euphemisms like “civil unrest” and “events,” the governments in London and Paris attempted not only to cover up the true nature of the conflicts but also to criminalize their opponents and deny them any legitimation… Because the insurgents lacked the status of combatant, they could not assert a claim to the protection accorded by international humanitarian law. (Klose, 2011)

Violence was a common tool for imperialists in their approach to expansion, oppression and the civilising mission, and they manipulated legal boundaries to ensure their right to use force. During the decolonising period, their definitions were used to carefully curtail details of reprisals to demonise the ‘savage’ indigenous people who were painted as the truly violent ones; mass murder, genocide and eugenics programmes were redefined as benevolent policies of education or policing (Monbiot, 2005). Indeed:

[s]everal passages of the Geneva Convention drafts, such as the prohibition of “collective punishment,” gave the British Colonial Office especially big headaches since this and other prohibited measures were common and efficient instruments used by the colonial governments to squelch unrest. The burning down of entire villages in Malaya and the punitive bombardments in the Protectorate of Aden illustrated, in the eyes of the Colonial Office, the value of collective punishment measures, and the authorities fought resolutely to prevent such effective means from being taken away from the local security forces (Klose, 2011).

Equally, as Mamdani has argued, this moral supremacy of the West’s ‘civilised’ violence versus the ‘immoral’ reprisals of those in more unstable countries speaks volumes towards the political power of legal rhetoric and the implicit biases in the chosen definitions. Only through transparency and increased democratisation of global governance structures can sovereign equality be achieved in a system built to allow international justice to become a tool of manipulation for imperialists to avoid accountability. Additionally, ‘[o]ne should not forget that the ex-colonial powers – especially France – continued to play strong economic and military roles in their former colonies, making the introduction of accountability measures very difficult’ (Arthur, 2009, p.  342). Definitions for international crimes – and the legal parameters protecting Western strategies of war that remain indiscriminate against civilians on the ground – remain the purview of the states who see their use of violence as somehow more necessary and acceptable than that of less powerful states (Anghie, 2006, p. 744). In this way, ‘[t]he point of the distinction is to reserve universal condemnation for only one form of mass violence… but at the same time to treat both counter-insurgency and war between states as normal developments’ (Mamdani, 2010, p. 57).

Contemporarily, these definitions continue to allow the West to avoid accountability for their methods of violence (i.e. drone attacks, counter-insurgency and unauthorised interventions) which are legally determined as normal standards of the use of force in warfare, rather than considering these violent strategies as similar to other war crimes due to their indiscriminate nature (Maurer, 2013). In this context, the ICC’s influence has been to reinforce the definitions which provide immunity to the most historically powerful nations. As Thakur argues, ‘Self-evidently, only non-Western governments can be norm-violators; Western governments—Abu Ghraib, Guantánamo Bay etc. notwithstanding—can only be norm-setters and norm-enforcers’ (Thakur, 2016, p.  372).

These legal frameworks also encourage the international community to view violence in more unstable regions as ‘backwards’ or ‘tribal’, as seen with the Rwandan genocide (Des Forges et al, 1999), versus the ‘modern’ and more technologically advanced weapons of the West which are supposedly seen as more morally robust. In the eyes of the Western powers, ‘[s]uch technological prowess holds the seductive promise of ‘war lite’ and ‘morality lite’ with respect to blood, treasure and conscience’ (Thakur, 2016p.  374). Yet this is a legal and rhetorical difference rather than a material one, and it is a double standard that is attracting the condemnation of many African nations who hope that ‘[soon] the discrepancy between the West’s universalistic rhetoric of principles and particularistic pursuit of interests is going to be increasingly unsustainable’ (Thakur, 2016, p. 371).

 

Conclusion

When the law is applied selectively, the result is not a rule of law, but a subordination of law to the dictates of power so flagrant that the outcome is more reminiscent of feudal privilege than of a bourgeois rule of law. – (Mamdani, 2010, p.  62)

In conclusion, the bureaucratic and technocratic preferences of the West in their peacebuilding strategies implicitly encourage a top-down and distant approach to justice which is at odds with the requirements of the justice processp.  prioritising the victims’ solace (Moffett, 2015p. 281). In this way, the most logistical, diplomatic, and least damaging option would be for the establishment of a hybrid court under the control of the AU. If the ICC continues its stalemate with the pro-sovereigntist contingency of the AU, al-Bashir will never face justice, which is to very few people’s benefit. As Stephen Lamony argues, ‘Omar al-Bashir’s fugitive status is more than just a political or legal issue, it is an affront to all the victims that have suffered, continue to suffer, and will suffer from his brutal reign over Sudan’ (Lamony, 2015).  In this way, the AU has not ignored the horrific crimes al-Bashir has been accused of in Darfur but rather has been at the forefront of the crisis despite being ignored by the UNSC. This is not to say the AU has presented the ultimate solution to the Darfurian crisis, but to ignore its involvement and the power it holds over its member states, is to be diplomatically ignorant of the considerable tensions involved when indicting a sitting President. As Mamdani has argued, ‘The decision as to who to target, and who not to, is inevitably a political decision’ (Mamdani, 2010p. 62). This point is especially prudent considering that al-Bashir’s case involves the indictment of a sitting head of state, rather than an already incarcerated leader.  Peace is sought by the AU and ‘While the AU has requested that the arrest warrant be suspended, it has not suggested that Bashir not face justice. Indeed, it even debated whether the AU could try him. This is not the sign of an Africa that is turning its back on justice. Rather, it indicates an Africa that is arguing with itself and the international community over how best to proceed (Mills, 2012p. 445).

If the West provided genuine support for ensuring that the ICC enact justice without resistance from African nations, it could compel the UN to bring an end to some of the more glaring double standards that are currently protected by their legal and institutional structures. Currently, the ICC is subject to many of the ideological vulnerabilities and colonial continuities which have filtered down from the colonial history of the UN, therefore causing diplomatic tensions and preventing the effective operations of the Court. More importantly, al-Bashir’s victims are caught in the middle as international law is restricted by differing interpretations. As examined in this article, the colonial selectivity of international law procedures has a long history of protecting powerful nations (Anghie, 2006p.  741), and it is unlikely that the P5 nations will be willing to loosen their grip on these benefits. However, with the current trends in geopolitics indicating that the West is no longer in the honeymoon period of the post-Cold War victory years, it is thought that ‘[a]s relative power shifts away from the West, the ability of the latter to exempt themselves from the reach of global norms will lessen. They will have to accommodate to the new normal either by bringing their conduct within the operation of international normative instruments, or by accepting a softening of the latter’ (Thakur, 2016p. 376).

As this article has explored, there is a political momentum within African nations which is seeking to deconstruct the liberal and neo-colonial biases and structures at the core of the international criminal justice system. As Anghie argues, ‘Rather than adopting the traditional view of sovereignty as an exclusively European product extended into a non-European world that was somehow, naturally, non-sovereign, we might see sovereignty doctrine as consisting in part of mechanisms of exclusion which expel the non-European society from the realm of sovereignty and power’ (Anghie, 2006, 741). It seems that non-Western states will no longer accept the double standards which inherently prejudice their experience with international law and political norms.

The current impasse between the AU and the ICC is not a topic to be wholly demonised by the international community as many of the AU’s criticisms have been verified. In this way, double standards are further protected and P5 members are able to strategically protect or target those which best suit their interests through the power of the UNSC veto. The colonial structures of these procedures are concerningly visible in their influence despite efforts during the decolonisation period to exclude imperial influence. Greater international acknowledgement of the violence and war crimes caused by colonial powers during the decolonising period would also help to balance the scales of global justice, and perhaps open discussions regarding the structural harms of colonialism (Blanton et al, 2001, p. 475). The assumptions at the heart of the ICC, and the transitional justice industry more broadly, encourage paternalistic and neo-colonial policies which directly prevent victims from experiencing justice for their own sake, the transitional justice process only playing a small part of the broader peacebuilding effort. Although it is accepted that the judicial process is intentionally built alongside other reconciliatory approaches, it would be wise for the transitional justice industry to learn from the mistakes of the peacebuilding field in its apolitical-and-yet-political endeavour to spread liberal democracy via ‘impartial’ humanitarian vehicles.

This article has sought to provide an initial study into the diplomatic implications and pervasive legacies of colonialism within the spheres of global justice and governance. Overall, it is clear that the processes of international justice are political, and that the legalistic preference of Western judicial procedures is largely unsuited for the holistic and contextual needs of post-conflict international justice (Rubli, 2012p.  11). In this way, the Court’s bureaucratised approach to the al-Bashir case has only aided its critics in highlighting its liberal and technocratic assumptions when it comes to international criminal justice: victims excluded, peace negotiations stymied, and the AU ignored. In its simplest form: whilst most agree that al-Bashir should face justice for his crimes in Darfur, the crux of the debate centres on what the judicial process should look like. ICC, AU Court, AU-Sudanese hybrid, or even an AU-ICC hybridp.  none of these present a universally accepted model. However, as a final recommendation, it could be suggested that a greater investigation into the diplomatic collaboration of the AU-UN’s hybrid peacekeeping mission (UNAMID) may indicate that perhaps an AU-ICC court could be the most logistically and theoretically successful option for al-Bashir’s prosecution.

 

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Torn between political interests and upholding legal responsibilities? A critical examination of African states’ frustrations with the International Criminal Court

By Zeinab Drabu

Zeinab Drabu is a recent graduate from the University of Leeds, where she achieved a First Class Honours in her BA degree in German and International Relations. Her academic and research interests include international politics, international law and international ethics.

 

The International Criminal Court is currently facing its most serious reputational crisis concerning its role and impact in relation to international criminal justice within the international arena. Nowhere is this crisis more profound than amongst African States that are both party to the International Criminal Court as well as the Constitutive Act of the African Union. Criticisms articulated by African states, including the labelling of the International Criminal Court as an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Al Jazeera, 2016) by the Gambian Information Minister Sheriff Bojang, are above all symbolic of the mounting frustrations that African states exhibit towards the Court. This essay will assess whether and to what extent such frustrations are justified in terms of their credibility and legitimacy. For this, the analysis will seek to determine whether these frustrations have been elicited due to the Court’s inability to fulfil its aims and objectives as outlined in the Rome Statute. Firstly, frustrations surrounding the Court’s alleged bias in terms of its selection of predominantly African cases will be reviewed. This essay will then critique frustrations regarding the International Criminal Court’s relationship to the United Nations Security Council, particularly through an examination of the case of the indictment of Sudanese President Omar Al-Bashir. As the ‘Court operates at a crossroads between law and politics’ as noted by scholars such as Arbour (2014, p.201), this essay will contend that existing frustrations articulated by African states towards the International Criminal Court are on the whole juridically unjustified, as they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. Furthermore, this essay will demonstrate that existing frustrations are principally politically motivated, with the purpose of delegitimising the Court to serve the political interests and objectives of African states inherent in the Court’s handled cases.

 

Is the International Criminal Court exclusively targeting Africa?

In view of the submission of withdrawal notices from the International Criminal Court by the African states of Burundi, Gambia and South Africa in October 2016, despite eventual revocations in the cases of the latter two, scholars such as Werle and Vormbaum (2014, p.181) contend that the ‘Afro-centric focus of the International Criminal Court has created a distorted perception within the African continent about the intentions underlying the establishment of the Court’. The Court was initially founded to prosecute the most serious crimes facing the international community, including ‘the crime of genocide, war crimes and crimes against humanity’ (ICC, 2011, p.3), following the entry into force of the Rome Statute on the 1st July 2002. Objectively it is evident that all cases pursued to date have been directed towards African nationals. Specifically, submissions have included ‘those by individual governments in the cases of Uganda, the Democratic Republic of the Congo [DRC] and the Central African Republic [CAR], self-initiated interventions by the ICC chief prosecutor, Louis Moreno Ocampo in Kenya and Côte d’Ivoire and two UN Security Council referrals in Sudan and Libya’ (Murithi, 2012, p.4). Taking such observations into account, frustrations concerning the Court’s disproportionate focus on Africa are empirically justifiable. However, the first three situations outlined were self-referrals and therefore investigated at the request of the respective states themselves. In addition, crimes committed in all cases fell under the jurisdiction of the International Criminal Court.

Currently there are 124 State Parties to the Rome Statute of the International Criminal Court, of which 34 are African. Hence, quantitatively, Africa constitutes the most heavily represented region in the International Criminal Court, which not only recognises its permanency and legitimacy, but also accepts and emulates its jurisdiction. In addition, the International Criminal Court benefits extensively from the expertise of African professionals, with numerous Africans occupying high-level positions in all its organs. This includes Ms. Fatou Bensouda of the Gambia, who was instated as the Chief Prosecutor of the Court in 2012. In light of these structural and demographic contributions, African recognition of the legitimacy and authority of the International Criminal Court as an institution is significant.

The contributions of African states during the establishment of the International Criminal Court are also imperative to consider when assessing the extent to which their frustrations with the Court’s allegedly selective approach are justified. Indeed, whilst numerous African states were present for the drafting of the Rome Statute, the founding treaty of the International Criminal Court at the Rome Conference in July 1998, the clear majority voted in favour of adopting the Rome Statute and establishing the International Criminal Court. Such extensive support suggests that the objectives and purpose of the Court at the time of its establishment aligned with the interests of the majority of African states. In addition, on the 2nd February 1999, Senegal ratified the Rome Statute of the International Criminal Court, becoming the first State Party to ratify the Statute (United Nations, 2014), encapsulating and reaffirming African support for the Court. Furthermore, it is important to note that current efforts by the International Criminal Court to expand its international outreach are actively being pursued in terms of its prosecution of mass atrocity crimes. As well as the recent initiation of a proprio motu investigation into crimes against humanity and war crimes committed in Georgia in 2008, a Report on Preliminary Examination Activities (2016, p.6) issued by the Chief Prosecutor outlines ‘preliminary examinations currently underway in a number of states across different continents including Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Ukraine’.

Nevertheless, dismissals to date by the International Criminal Court of cases outside Africa have triggered frustrations from African states that the ‘International Criminal Court is practicing a form of “selective justice” which purposely avoids the prosecution of diplomatically, economically, financially and politically strong countries’ (Mbaku, 2014, p.10). A key example highlighted by Dugard (2013, p.563) which illustrates this is the Prosecutor’s failure to investigate alleged war crimes committed by Israel and Hamas during Operation Cast Lead in 2008. Whilst Dugard (2013, pp.567-569) emphasises the Prosecutor’s weakness in confronting Israel and its allies such as the United States as a key causal factor in the case’s dismissal, what is most interesting to note is the Prosecutor’s decision to investigate crimes committed in Mali instead, where the evidence is less clear. Whilst this example bolsters the credibility of frustrations regarding the International Criminal Court’s active preference in prosecuting African cases, scholars such as Saltzman (2013, p.164) counter this contention. Saltzman contends that at the time of the offensive, although the Palestinian National Authority had recognised the International Criminal Court’s jurisdiction, it was not a party to the Rome Statute and therefore not under the Court’s jurisdiction. Thus, although the structural limitations of the Rome Statute can be universally applied to different cases in assessing whether African state frustrations are justified, this example highlights the necessity to equally explore case-specific political dynamics in conjunction with the subject matter of the case. It further illustrates an instance where structural limitations of the International Criminal Court have delegitimised rhetoric regarding the selective targeting of African states by the International Criminal Court.

 

The Paradox of state co-operation: an analysis of the case of Omar Al-Bashir

On the 4th March 2009, the International Criminal Court issued a warrant of arrest for President Omar Al-Bashir of Sudan on charges including genocide, crimes against humanity, and war crimes. As these are all crimes that fall within the jurisdiction of the Court in accordance with the Rome Statute, the case possesses legitimate prerequisites for investigation. As well as being the first case in which a sitting head of State has been issued with an arrest warrant, scholars such as Mills (2012, p.407) acknowledge that it is also the first in which a ‘case before the ICC has forced states to confront their multiple interests and responsibilities in light of global power dynamics’. This is due to the fact that African states are required to overcome the conflict between their legal obligations under the Rome Statute and their political commitments as member states of the African Union in determining their involvement and approach respective to the case of the indictment of Al-Bashir.

Frustrations concerning the alleged ‘political abuse of universal jurisdiction against African officials by Western states’ (Van der Wilt, 2011, p.1044) appear to oppose the African Union’s policy asserting that ‘heads of state enjoy diplomatic immunity’ when confronted with arrest warrants (Akande and Shah, 2010, p.815).  The case of the South African government’s failure to arrest Al-Bashir during his visit to an African Union summit in Johannesburg in 2015 highlights the discrepancies between Article 27 and Article 98 (1) of the Rome Statute in relation to diplomatic immunity. It further demonstrates South Africa’s voluntary violations of its legal responsibilities as outlined by the Rome Statute in favour of complying with the African Union’s policy of non-cooperation, which provides support for the contention that African State frustrations towards the International Criminal Court’s jurisdiction are not justified.

As illustrated by Article 27 of the Rome Statute, there is an ‘absolute prohibition on immunities for crimes falling within the jurisdiction of the ICC at the international level’ (Bekou and Shah, 2006, p.513). South Africa is also a State Party to the Rome Statute and therefore falls under the jurisdiction of the International Criminal Court. Hence some scholars argue that the removal of diplomatic immunity for perpetrators of mass atrocities is also mandatory at the national level. From this, it is evident that there is a comprehensive legal basis obligating the South African government to arrest Al-Bashir. Yet upon examination of Article 98 (1) of the Rome Statute, it can be argued that the removal of diplomatic immunity from a head of State such as Al-Bashir violates other key principles of international law, including territorial sovereignty and non-interference, producing a ‘scenario of forced regime change by one country on another’ in the words of South Africa’s Masutha (Feldman, 2016). Article 98 (1) states that

‘the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity’ (International Criminal Court, 2011, p.69).  

That said, according to scholars such as Van der Vyver (2015, p.574), ‘the obligation of non-party states to execute the arrest warrant of President Al Bashir should rest with Security Council, acting under its Chapter VII powers, which has instructed all states and non-party-states included’. From this perspective, it can be contended that the ultimate authority and legitimacy of State Parties legal obligations take precedence, delegitimising African state frustrations’ regarding the diplomatic immunity of Heads of State such as Al-Bashir.  

The obligations of non-state party co-operation within the Rome Statute further highlight weaknesses regarding African state frustrations concerning the jurisdiction of the International Criminal Court in its relationship with the United Nations Security Council. On one hand, contentions regarding the obligations of non-state parties, specifically in situations where they have been referred to by the United Nations Security Council to co-operate with the Court, have often been manipulated by African states, as in the case of Al-Bashir, to justify and legitimise such frustrations. Firstly, Bekou and Shah (2006, p.541) assert that as ‘Sudan is not a State Party to the Rome Statute, there is no obligation for the state to fulfil requests for cooperation from the Court’. However, due to the referral mechanism used in the case to the Prosecutor of the International Criminal Court through U.N. Security Council Resolution 1593 under Chapter VII of the U.N. Charter, scholars such as Schabas (2011, p.418) draw attention to Article 12 of the Rome Statute which ‘opens up the possibility for the Court to exercise jurisdiction if a matter is referred to it by the Security Council’. This obligates Sudan as a non-state party to cooperate with the Court by placing it under the same jurisdictional obligations as existing State Parties of the International Criminal Court. However, it can be contended that a closer examination of the duties entailed in the resolution reveal a degree of ambiguity. As stated in Paragraph 2 of the resolution, ‘Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ (United Nations Security Council, 2005). Additionally, the resolution ‘urges all States and concerned regional and other international organizations to cooperate fully’ (United Nations Security Council, 2005).

Taking this into account, it can be argued that the wording of the resolution merely encourages states to cooperate with the Court but does not necessarily compel them to do so. This exhibits weakness in the Court’s power of enforcement of state co-operation for the successful resolution of cases. However, when considering the votes in favour of the resolution by African states that were members of the Security Council at the time, it can be argued that the majority were supportive of the resolution. Both Benin and the United Republic of Tanzania voted in favour of the resolution, with Algeria abstaining. Although Algeria’s abstention stands contrary to African states’ support for the resolution, it appears principally politically driven, favouring alternative prosecution options to be determined by the African Union. In contrast, Benin refers to the ‘Ezulwini Consensus of 8 March 2005 in which the AU recognizes the right of the UNSC to protect a population when its government cannot or will not do so’ (Mutton, 2015) in its defence of the International Criminal Court’s decision following the U.N. Security Council resolution vote. Benin’s stance not only highlights the legal obligation of African states’ to act in accordance with the U.N. Security Council in this case but also affirms African states’ collective recognition of the International Criminal Court’s jurisdiction over Sudan.

At the time that the arrest warrant against Al-Bashir was issued in Sudan, African states requested for the arrest warrant against Al-Bashir to be deferred. According to scholars such as Oette (2010, p.348) this was due to concerns regarding the arrest warrant’s impact on the peace process being mediated by the African Union and on Sudan’s political stability in accordance with Article 16 of the Rome Statute. Yet the rejection of the deferral request by the United Nations Security Council triggered notable frustrations from African states, who turned to label the International Court as a ‘neo-colonial Court’ (Wegner, 2015, p.297) used as a tool to impose Western imperialism, as well as an institution that practices double standards regarding its relationship with the United Nations Security Council.  

Although examples such as the adoption of Security Council Resolution 1422 following Article 16 of the Rome Statute to grant immunity for U.S. soldiers in Bosnia and Herzegovina (Heyder, 2006, p.657) legitimate such frustrations, when examining the conflict between the pursuit of retributive justice in the attainment of peace in the Court’s prosecution of Al-Bashir juxtaposed with the structural limitations of the Court, such frustrations are not entirely justified. As Bensouda has pointed out, the ‘ICC is a judicial institution and cannot take into consideration the interests of peace’ (Buchanan, 2015). Thus, the United Nations Security Council’s decision to avoid accommodating political considerations in its decision to reject the deferral request is arguably valid in order to avoid the politicisation of justice, thereby safeguarding the legitimacy of the Court. However, as the case remains deadlocked at the Pre-Trial stage, although African State frustrations’ in general may have been unjustified, their implications on State cooperation appear to have had a profound, delegitimising effect on achieving progress within the case.

To conclude, over the course of this essay, the justification of various African states’ frustrations regarding the functionality and objectives of the International Criminal Court, in addition to frustrations that have arisen as a result of the Court’s interaction with international political organisations including the United Nations Security Council and the African Union, have been analysed. Whilst the first section does, to an extent, concur with frustrations concerning the International Criminal Court’s exclusive selection of cases within Africa, it also highlights the progress of the Court, which has begun to expand preliminary examinations and investigations into other continents. The second section of the essay focuses on the case of Omar Al-Bashir. Despite State Parties’ entailed obligations within the Rome Statute, this section illustrates that frustrations regarding sovereign immunity and universal jurisdiction are prevalent. This is due to African states’ conflicted and often politicised interpretations of these concepts, despite on the whole being juridically unjustified, which has provided impetus to a lack of State Party cooperation.

 

Bibliography

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Al Jazeera. 2016. Gambia withdraws from International Criminal Court. [Online]. [Accessed 20th May 2017]. Available from: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.

Arbour, L. 2014.The Relationship Between the ICC and the UN Security Council. Global Governance: A Review of Multilateralism and International Organizations. 20(2), pp.195-201.

Bekou, O. and Shah, S. 2006. Realising the Potential of the International Criminal Court: The African Experience. Human Rights Law Review, 6(3), pp.499-544.

Buchanan, R. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/.

Dugard, J. 2013. “Palestine and the International Criminal Court: Institutional Failure or Bias?” Journal of International Criminal Justice. 11(3), pp. 563-570.

Feldman, N. 2016. International Criminal Court is too focused on Africa. [Online]. [Accessed 20th May 2017]. Available from: https://www.bloomberg.com/view/articles/2016-10-25/international-criminal-court-is-too-focused-on-africa.  

Heyder, C. 2006. The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status. Berkeley Journal of International Law, 24 (2), pp. 650-671.

Human Security Centre. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/.

International Criminal Court. 2011. Rome Statute of the International Criminal Court. [Online]. The Hague: International Criminal Court. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.

International Criminal Court. 2016. Report on Preliminary Examination Activities 2016. [Online]. The Hague: International Criminal Court. [Accessed 14th May 2017].  Available from: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf.

Mbaku, J. 2014. International Justice: The International Criminal Court and Africa. [Online]. [No Place]: The Brookings Institute. [Accessed 16th May 2016]. Available from: https://www.brookings.edu/wp-content/uploads/2016/07/03-foresight-international-criminal-court-africa-mbaku-1.pdf.

Mills, K. 2012. “Bashir is Dividing Us”: Africa and the International Criminal Court. Human Rights Quarterly, 34(2), pp.404-447.

Murithi, T. 2012. Africa’s Relations with the ICC: A Need for Reorientation? In: Luckscheiter, J and Mass-Albert, K. eds. A Fractious Relationship: Africa and the International Criminal Court. [Online]. [No place]: Heinrich Böll Foundation Southern Africa 2012. , pp. 4-9. [Accessed 16th May 2016].  Available from: https://www.boell.de/sites/default/files/2012-08-Perspectives_Africa_1_12.pdf.

Mutton, J. 2015. Africa and the ICC: Countering half-truths. [Online]. [Accessed 30th March 2018]. Available from: https://www.dailymaverick.co.za/opinionista/2015-07-13-africa-and-the-icc-countering-half-truths/#.Wr3_4ExuK8B

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Saltzman, Z. 2013. Much Ado About Nothing: Non-Member State Status, Palestine and the International Criminal Court. Journal of International and Comparative Law, 3(2), pp.163-209.

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African states’ frustrations with the ICC: justifiable or misdirected and overstated?

By Oliver Cotton

Oliver Cotton is a law conversion course student. He graduated with a BA degree in International Relations from the University of Leeds in 2017, with a particular interest in terrorism, R2P and humanitarian law. 

 

Despite the significant role that African states have had in both the creation of the ICC and its ongoing support, African nations and as a collective, the African Union (AU) have become increasingly frustrated with the International Criminal Court (ICC). This essay, primarily focusing on the ICC’s Sudan investigation, posits that African states have two core complaints and that neither is justified. The first complaint is that the ICC undermines African peace and violates the immunity of heads of state, particularly those not party to the ICC’s founding treaty, the Rome Statute, through continuing to investigate African conflicts when the African Union requests deferral. For instance, several African states’ have argued that the ICC hampers peace processes by compromising leaders’ immunity through indictment. It will be asserted, however, that this frustration is unjustified in two ways. Firstly, the structural inequalities of the United Nations Security Council (UNSC) would be a more appropriate target for criticism, because African states were primarily concerned with deferral in the case of Darfur, which was a UNSC failing. Secondly, the AU’s request for deferrals of ICC investigations on the grounds of stability are unjustified because their premises are ill-defined and erroneous. The second core complaint from African states is that the Court unfairly targets and discriminates against Africans. However, despite the disproportionate number of investigations within Africa, the fact that many African states trust the ICC’s judgement brings this claim into question.  

 

The AU’s frustration with the UNSC’s role and deferral process

A principal frustration that some African states and the AU have directed towards the ICC, is their vexation towards the Security Council’s and, concomitantly, the ICC’s dismissal of their demands for a deferral of African investigations for a year long period, in line with Article 16 of the Rome Statute (1998). The effect of which has been the perceived marginalisation and lack of authority that African states consider themselves to have over the justice proceedings of their own affairs and crimes, despite their influence in the formation of the Court (Mills, 2012). This frustration should be directed towards the role of the Security Council and the structural inequalities and power imbalances that it represents, underscored by all five of the permanent UNSC members emanating from outside of Africa. Beyond their misplaced frustration with the role of the ICC instead of that of the UNSC, this essay asserts that the necessity of deferrals, notably in Sudan, was not adequately established. At its 2009 Summit in Sirte, the AU expressed and posited two principal reasons for its non-cooperation stance towards the ICC in reaction to the Security Council’s decision not to defer the Sudan investigation that it referred to the Court in 2005 (Jalloh et al, 2011; Ssenyonjo, 2013). They are: the belief that incumbent heads of state not party to the Rome Statute are immune from the Court’s jurisdiction under Article 98(1) (Rome Statute, 1998); and the perspective that prosecutions during ongoing conflicts hinder the achievement of peace. In terms of the former, the AU argued that the ICC’s jurisdiction should not extend to states that have not ratified the Rome Statute, in line with the sovereign principle of non-intervention (Akande and Shah, 2011). This argument is premised on the logic that in international law, ‘generally only parties to a treaty are bound by its provision’ (Sirleaf, 2016, p.751). There is significant contestation regarding the complexity of whether senior members of governments should be immune from ICC prosecution if they have not consented to the Court’s jurisdiction. However, given that the Security Council referred the case to the ICC under Resolution 1593 (UNSC, 2005) and that Sudan is a member of the UN and thus subject to the UN Charter, it is posited that Sudan’s immunity has been waived in a similar way to those of state parties, pursuant to Article 27 (Rome Statute, 1998), thereby legitimising the indictment (Du Plessis, 2010; Ciampi, 2008).  

It is also important to stress that African states are not just frustrated with the UNSC’s and the Court’s role in by-passing the lack of jurisdiction that the ICC has over non-state parties, but also the more general indictment of incumbent heads of state. African leaders, party to the Rome Statute, for instance Malawi’s president, Bingu wa Mutharika expressed that, ‘to subject a sovereign head of state to a warrant of arrest is undermining African solidarity’ (Mills, 2012, p.436). African states’ criticism of the indictment of incumbent leaders, whether party or not to the ICC, is premised on the crippling effects that arresting a head of state has upon the credibility of the states themselves. However, implicit in the opposition of African countries to the ending of the impunity that leaders enjoy is also the fear amongst heads of state who have committed mass atrocities that ‘their number might be next’ (Mills, 2012, p.430). This is exemplified by the AU’s formation of the Malabo regional court in 2014 and its incorporation of an immunities provision, which states that ‘no charges shall be commenced or continued before the Court against any serving African Union Head of State or Government’ (Amnesty International, 2016). This veiled effort to further embed the impunity of African leaders is unjustifiable and starkly inconsistent with the ICC’s principal aim to eradicate the immunity of all individuals under its jurisdiction, set out in the Rome Statute (Sirleaf, 2016).

The principal reasoning expounded by the AU for the deferral of African cases is that the arrest of officials or even leaders of African governments during conflict situations is detrimental to the brokering of peace, which African governments argue should be the primary concern of the international community. The AU expressed that its objection to the prosecution of Sudanese leader, Omar al-Bashir and other officials lay in the timing of Bashir’s indictment as opposed to the case itself. Indeed, in line with the AU’s opposition to external interference and desire for greater autonomy, the regional institution discussed whether, instead of the ICC, it could alternatively prosecute Bashir, implying that African states are willing to prosecute war criminals themselves (Mills, 2012). The organisation nonetheless called for the arrest of Bashir to be deferred in the interest of establishing peace in Sudan. It cited that the investigation could ‘seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur and the promotion of long-lasting peace and reconciliation’ (AU, 2008, p.2). Support for a deferral in order to benefit the Sudanese peace efforts extended beyond African states. Russia, for instance stressed its opposition to the ICC’s interference in Sudan, instead emphasising the importance of Sudan investigating its own crimes and the ICC acting as a court of last resort, in line with the principle of complementarity (UNSC, 2008).

The elevation of peace above judicial action in order to end immunity, and the perception of irreconcilability between them are popular views among academics. It is contended that the ICC’s involvement acts as an obstacle to establishing peace (Rothe and Collins, 2013; Kastner, 2007) on the basis that its indictments have incentivised violence in: Sudan, Colombia and Uganda (Sirleaf, 2016; Riveros, 2009; Belloni, 2006). For instance, in Uganda, the ICC’s indictment of Joseph Kony was conceptualised as leading to the cessation of the Juba peace negotiations (Rothe and Collins, 2013). Likewise, in Sudan, it is noted that the arrest warrant for Bashir plausibly reinforced the rebels’ cause, in turn, resulting in the Justice and Equality Movement eliminating the possibility of negotiations (Simons et al, 2008). Despite the relative credibility of this argument in theory, in practice, there was little tangible evidence to validate the necessity of a deferral (Oette, 2010). It is important to stress that the legitimacy of a deferral following a UNSC referral of a situation to the ICC is dependent upon a change in the circumstances of a case. That is, from one that has already been considered to warrant ‘effective prosecution by the ICC into one in which the Court’s exercise of jurisdiction threatens the peace and security of the world’ (Ciampi, 2008, p.891). The Sudan situation did not merit a deferral as the AU failed to highlight any tangible change in circumstances that could plausibly justify the postponement of the ICC’s investigation in Darfur. Equally, there was no clear evidence that the ICC’s involvement obstructed peace processes or that peace would be more likely to prosper in the case of a deferral, undermining the AU’s frustration. Indeed, the Darfur conflict has persisted since 2003, highlighting the opportunity that Sudan’s government has had to foster peace and to prevent the direct involvement of the ICC through the prosecution of its own offenders, under the principle of complementarity (Jalloh et al, 2011; Fritz, 2012). Yet, it has failed to do so, illustrated by the failure of the 2006 Darfur Peace Agreement (Oette, 2010) and the unstable, violent conditions prior to the ICC indictment, underscored by the eruption of conflict in Omdurman and Abyei in 2008 (HRW, 2008). The failure of Sudan’s domestic proceedings, or more fittingly, its lack of willingness to indict its own officials, justifies the need for the ICC’s external involvement (Jalloh et al, 2011).

The ICC’s credibility has been weakened by the lack of support from the Security Council and African states in arresting Bashir. Nonetheless, as has been argued, in the absence of a justifiable explanation for a deferral of the Sudan case, the ICC’s continued investigation was warranted and prevented the Court from setting a precedent of subordinating impunity in favour of political expediency (Oette, 2010). Furthermore, in contrast to the argument that peace should be prioritised above the prosecutorial duties of the ICC, this essay elucidates that alternatively, peace and justice are inseparable goals. As opposed to facilitating the establishment of peace, deferring cases against heads of state in the absence of exceptional circumstances would have the perverse effect of encouraging leaders to sustain conflict in order to delay their prosecution indefinitely (Oette, 2010).

 

The perception of the ICC as a Western tool of African oppression

African leaders and academics alike have cited the ICC as a tool of Western oppression that selectively and unfairly discriminates against African nations, particularly in the wake of Bashir’s 2008 indictment. Indeed, the African scholar Eberechi (2011) stressed that the ‘ICC is rapidly turning into a Western court to try African crimes against humanity’ (p.55). Rwandan president, Paul Kagame even stressed that the ICC’s unfair targeting of Africans has colonialist and racist overtones (Steinberg, 2016; Sudan Tribune, 2009). The extent of this frustration is encapsulated by the African Union passing a resolution in 2008 to appeal to the European community to halt the indictment of Africans (Mills, 2012). The pinnacle of this frustration and subsequent opposition to the ICC’s operational functioning by African states came with South Africa’s, the Gambia’s and Burundi’s announcement of their plans to withdraw from the Court (Keppler, 2017). Although the AU has consistently found issue with the Court’s work, its endorsement of the withdrawal of African states collectively from the ICC at the 2017 AU summit signaled the culmination of the continent’s frustrations with universal jurisdiction and the role of the ICC (Jalloh et al, 2011; Maasho, 2017). This has even prompted commentators to question whether such action signals the end of the ICC (Allen, 2016; Cronin-Furman and Schwartz, 2016). This is grounded in the logic that international institutions, such as the League of Nations have historically become redundant and perished once members have flouted their jurisdictions and withdrawn their membership (Murithi, 2012).

Both Gambia’s and South Africa’s decision to withdraw from the Court have since been revoked, however, it is clear that the frustration amongst African governments regarding its perceived biased targeting has damaged the ICC’s credibility. This is particularly apparent, given that African membership and support for both the ICC’s founding and ongoing execution have been integral to its relative success as an institution to date. Nevertheless, upon analysis, the perspective that such frustration could beckon the ICC’s demise is thoroughly futile and simplistic. It obscures the disparity and disagreement amongst African states regarding their support for the ICC. For instance, the majority of African states either opposed the decision by Gambia, South Africa and Burundi to declare their withdrawal from the ICC or reaffirmed their support for the Court (Momoh, 2017; AU Summit, 2017). Thus, the AU’s declaration of non-cooperation and withdrawal from the ICC did not represent the majority view.

The ICC’s selectivity and Western bias is supported by nine out of ten of the situations under investigation by the Court residing on the African continent (ICC, 2017a). Nonetheless, the African frustration regarding the perceived oppression of the ICC grossly misrepresents the reality. Although Western, powerful states are more capable of averting the Court’s jurisdiction and justice, the ICC is far from a Western institution, represented by the Gambian nationality of its incumbent prosecutor, Fatou Bensouda (Smith, 2012). Furthermore, it is clear that this perceived Western oppression of Africans masks the accountability, autonomy and transparency inherent in the ICC (Du Plessis, 2010). The frustration is additionally flawed, given that far from unfairly targeting the continent, African states have, in fact, requested the ICC’s investigation into their own affairs, confirming that the ICC purely acts in the interests of African victims. This is signified by self-referrals marking five out of the nine African situations under investigation (ICC, 2017a). The fact that the Security Council has only referred two out of these nine cases to the ICC brings into question Mamdani’s (2009) narrative of the ICC as a tool of the West. The imbalance in the Court’s prosecutions and investigations into African situations is predominantly explained by factors outside of its control and its limited jurisdiction, marked by neither America, China, nor Russia being party to the ICC Statute (ICC, 2017b). Notably, in the absence of a Security Council referral, the ICC can solely prosecute individuals from its state parties via self-referrals or the proprio motu capabilities of the ICC Prosecutor. The Court is thereby heavily dependent upon state support and power politics. Nonetheless, the frustration of African states is further undermined by the ICC’s evident willingness and intent to prosecute the most heinous war crimes wherever they occur when the Court has both the jurisdiction and the authority to do so (Jalloh, 2010). This is evidenced by five of the ten situations under preliminary investigation coming from outside of Africa, notably, Bensouda’s reopening of the case against British nationals in Iraq, previously closed by her predecessor, Ocampo in 2006 (ICC, 2017c). The higher prevalence of conflict and, concurrently, war crimes, coupled with Africa representing the region with the most signatory states to the Rome Statute, further justifies the disproportionate number of African cases investigated by the ICC (Jalloh et al, 2011; Brock-Utne, 2001).

 

Conclusion

In examining the justifiability of African states’ frustrations with the ICC, this essay has evaluated two overarching dissatisfactions which have impaired the relationship between the ICC and the African Union. It has concluded that neither frustration, nor the broader discontent that African governments have directed towards the ICC are justifiable. The AU’s frustration regarding the overlooking of its appeal for the deferral of African cases under ICC investigation should be re-directed towards the role of the Security Council and its embodiment of structural inequalities. African governments’ vexation towards the ICC for pursuing cases despite AU opposition is additionally unwarranted, premised on two shortcomings. They are: The African Union’s failure to expound the necessity of deferrals in the interest of peace; and some African states’ incompatible and flawed belief that incumbent heads of state should enjoy impunity, given that the ICC was definitively set up to end the immunity of all individuals under its jurisdiction and remit. African states’ criticism of the Court as a Western tool that is biased against and seeks to oppress Africans is an equally misplaced frustration. For, the ICC’s sizeable jurisdiction within Africa, coupled with the greater willingness of African states to self-refer cases justifies the disproportionate number of prosecutions and investigations on the continent. Nevertheless, going forward, it is important that the ICC builds upon and translates some of its five preliminary examinations from situations outside of Africa into fully fledged investigations. Pursuing cases beyond Africa more diligently and purposefully would advance the ICC’s inherent goals of ending the immunity of war criminals and protecting victims globally, whilst simultaneously acting to thwart African states’ increasing opposition towards the Court. In a similar vein, African governments can alleviate their frustrations by increasingly adhering to the ICC’s role as a court of last resort and its principle of complementarity by emboldening their domestic judicial systems and, concurrently, progressively prosecuting their own crimes.

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Sexual Violence and the Law of Armed Conflict

By Maria Chiara Parisi

Chiara is a third year student at U.C. Berkeley, School of Law. After graduating in the spring, she hopes to work in public interest or public service law. 

 

“Rape in war is as old as war itself”(Baker, 2016). For centuries, rape and other forms of sexual violence have run rampant during times of armed conflict (see Askin, 1999; Chinkin, 1994; Mitchell, 2005). The consequences of these acts are immense, with effects that last beyond the pain, humiliation, and fear felt at the time of the attack. Sexual violence spreads incurable diseases such as HIV and the trauma severely impacts the mental health of the victims for years following the attack. Loss of virginity and infertility caused by mutilation make victims unmarriageable in certain communities. Unwanted children are often left behind, serving as a constant reminder of the brutal destruction that disrupted the mother’s life. Mass rape has even been used as a form of ethnic cleansing, with the objective of changing the ethnic makeup of a population by killing all of the males in a community and forcing women to bear children of “the enemy”. Further, once the attacks end, the needs of survivors post-conflict, including medical care, psychological support, and economic assistance, are seldom met (UN, 2014).

Although there are no precise statistics on wartime sexual violence due to inaccurate reporting and the unwillingness of victims to come forward, there is no doubt that sexual violence rates during times of war are shockingly high (Gottschall, 2004, p.130). Just in the 20th century, countries with reports of mass rapes include Belgium, Russia, Japan, Italy, Korea, China, the Philippines, Germany, Afghanistan, Algeria, Argentina, Bangladesh, Brazil, Burma, Bosnia, Cambodia, Congo, Croatia, Cyprus, East Timor, El Salvador, Guatemala, Haiti, India, Indonesia, Kuwait, Kosovo, Liberia, Mozambique, Nicaragua, Peru, Pakistan, Rwanda, Serbia, Sierra Leone, Somalia, Turkey, Uganda, Vietnam, Zaire, and Zimbabwe (Gottschall, 2004, p.130). Continue reading

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The Responsibility to Protect and the Responsibility to Prosecute

Georgiana Epure, University of Cambridge, UK

Georgiana is an editor of the R2P Student Journal. She holds a BA in International Relations from the University of Leeds. As an Undergraduate Research and Leadership Scholar, she worked with the Intervention and International Society Research Cluster at Leeds. In 2015, she founded the R2P Student Coalition at Leeds. Her article was written in her finaly year at the University of Leeds.

There are few occurrences that bind states and make them aware of their common values. The protection of populations from mass atrocities that shock the conscience of humankind is one of them. This article looks at states’ and the international community’s responsibilities to protect (R2P) and prosecute. The article argues that these two responsibilities have a complementary relationship, as they share the same goal of protecting people from gross human rights violations. However, this relationship, a mixture of political and judicial measures, can work against that goal when R2P and the responsibility to prosecute are used simultaneously as conflict management tools in on-going crises.

The article has a twofold structure. First, using English School theory, it examines how these responsibilities emerged and what they entail. This will be followed by an analysis of their complementary relationship and an assessment of how both these normative projects, which have universal moral underpinnings, blur the lines between two different types of world orders: the society of states and the world society. The second part analyses how the closeness between R2P and the responsibility to prosecute can be problematic as it may result in legitimacy and civilian protection costs. The article concludes nonetheless that the intimate link between R2P and the responsibility to prosecute strengthens the global protection discourse and increases the guilt for inaction. That is because the potential problems of legitimacy and civilian protection costs can be mitigated if the coercive tools of the R2P and responsibility to prosecute – Pillar III on the one hand, and proprio motu and United Nations Security Council (UNSC) referrals on the other – are sequenced so that criminal accountability acts retrospectively. If this does not happen, the responsibility to prosecute can undermine R2P’s human security agenda.

Two Responsibilities, One Goal

The international community has been developing a global normative project to protect people from gross human rights violations. This project comprises different ‘sets of norms and practices’ that entail different types of actions (Mills, 2015a, p.1). The responsibility to prosecute (punishing those most responsible of mass atrocities) and R2P (preventing mass atrocities, assisting states to protect or using peaceful or coercive means to stop mass atrocities) are two of these norms and practices. The responsibility to prosecute has a longer history than R2P, dating back to 1474, when the first international trial was held (Schabas, 2011, p.1). R2P has its roots in the failure of the responses to the humanitarian crises in 1990s, which were either lacking, as in the case of Rwanda, or were ‘illegal but legitimate’ as in the case of Kosovo (The Independent International Commission on Kosovo, 2000, p.4). R2P as a concept emerged from the International Commission on Intervention and State Sovereignty Report (ICISS) in 2001, as a response to then-Secretary General Kofi Annan’s (1999) call for reconciling state sovereignty and humanitarian intervention in order to allow for international responses to protect populations from mass atrocities.  In 2005, world governments unanimously agreed that they have a responsibility to protect their populations from four crimes: genocide, war crimes, crimes against humanity and ethnic cleansing (UNGA, 2005, WSOD, para. 138, 139). Four years later, UN Secretary General (UNSG) Ban Ki-moon published his first R2P report, ‘Implementing the Responsibility to Protect’, which outlines the three pillars of the R2P. Pillar I consists of each state’s responsibility to protect its population from the four crimes. Pillar II is the international community’s responsibility to assist states that are unable to uphold their R2P. Pillar III is triggered when a state ‘manifestly fails’ to protect its population, in which case the international community has a responsibility to respond collectively in a timely and decisive manner to protect the population at risk.

The responsibility to prosecute as a (legal) norm has developed through a series of international conventions that created an international legal obligation to prosecute genocide, war crimes and torture. For example, granting amnesties, asylum or exile to perpetrators of such crimes would constitute a breach of treaty obligations (such as The Convention on the Prevention and Punishment of the Crime of Genocide 1948, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, the ‘grave breaches’ of the Geneva Conventions 1949) – as they mean that no prosecution would be forthcoming (Scharf, 2006, p.350-1). The responsibility to prosecute began to be institutionalised after the end of World War II (Schabas, 2011, pp.5-16) through the establishment of the International Military Tribunals at Nuremberg and Tokyo, the creation of the ad-hoc international tribunals in Rwanda and Former Yugoslavia in the 1990s, and culminated in the establishment of the permanent and independent International Criminal Court (ICC) in 2002.

R2P, on the other hand, lacks an institutional embodiment. Nevertheless, as Ralph (2016, p.2) highlights, R2P and the responsibility to prosecute (through the ICC) share a recent history that commits them to ‘the long-term goal of ending mass atrocities’. These two responsibilities have developed alongside each other, despite the fact that they are not formally linked (Ainley, 2015, p.37). First, they have a close relationship because they overlap in their focus on the protection against the same crimes. Because R2P focuses solely on four crimes (genocide, war crimes, crimes against humanity and ethnic cleansing), this section analyses whether there is a responsibility to prosecute these particular crimes.

First, states that ratified the 1948 Genocide Convention have a legal duty to prosecute those responsible for genocide, the über crime, which is considered a jus cogens crime, that is, states are prohibited from committing it under all circumstances (Scharf, 2006, p.364). Jus cogens norms reflect a general consensus (Ralph, 2007, p.9); they are peremptory norms accepted by the whole international community for which states’ consent is not needed as they have foundations in natural law from which no derogation is permitted (Scharf, 2006, p.364-5). Second, under the 1949 Geneva Conventions and Additional Protocols, there is a duty to prosecute war crimes. However, it is worth noting that the ‘grave breaches’ of the Geneva Conventions, which impose a duty to prosecute, punish or extradite war crimes perpetrators, only apply to international armed conflict that involve at least two states (Scharf, 2006, p.351). R2P responses to war crimes, however, generally occur in internal armed conflicts. This is because civil wars are now much more common than international armed conflicts. . Nevertheless, whilst states and international tribunals can prosecute war crimes in internal conflicts (see the ICTY-Prosecutor v. Tadic, Case No. IT-94-1, 1995, paras.97-137), there is no absolute legal duty to do so (Scharf, 2006, p.352). Third, with regard to crimes against humanity there is no absolute requirement to prosecute. As Scharf (2006, p.360) stresses, crimes against humanity are a ‘creature of customary international law’, generated out of the jurisdiction of the Nuremberg Tribunal, the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court in Sierra Leone, and most recently codified in the Rome Statue of the ICC. Although there is no legal duty to prosecute crimes against humanity, under customary international law, which is defined as ‘a general and consistent practice of states followed by a sense of legal obligation’, amnesty and asylum are prohibited for such crimes (Scharf, 2006, p.360). The fourth crime, ethnic cleansing, does not have a definitive legal definition under international criminal law (Bellamy and Reike, 2010). However, it is covered by crimes against humanity under the jurisdiction of the ICC. In short, the twin responsibilities to protect and prosecute represent two ‘inter-related twin tasks [to] protect victims and punish the perpetrators’ of the same mass atrocities (Thakur and Popovski, 2007, p.41).

As discussed, the responsibility to prosecute is entrenched in international criminal law. R2P, on the other hand, is ‘a political commitment’ (Bellamy and Reike, 2010, p.267), arose from legal commitments as well (see, for example, 1948 Genocide Convention); that is, R2P did not create new obligations, but reinforced customs already entrenched in international law. To be clear, R2P is not legally void, but has more of a moral and political nature, particularly in what concerns its reactive pillars, whether supportive (Pillar II) or coercive (Pillar III) (p.269). R2P’s normative status is also more problematic because of its complex nature. As Stahn (2015, p.19) puts it, R2P is a set of norms, an ‘umbrella concept’ (Stahn, 2015, p.19), which makes its internalization difficult (Welsh, 2013, p.386). Despite the disequilibrium in their normative strengths, the responsibility to prosecute and the R2P contribute to achieving the same goal: protection from mass atrocities – whether through ‘interventions to stop atrocities’ or ‘holding individuals criminally responsible for atrocities’ (Mills, 2015a, p.1). To tweak Sikkink’s words (see ‘The Justice Cascade’, 2011), these two responsibilities create a ‘protection cascade’ that strengthens the protection discourse both at the domestic and the international level, in domestic and international law, norms and institutions.

Additionally, both norms draw on similar foundations of a ‘humanity-based defense of international authority’ (Stahn, 2015, p.13) and they both call for ‘humanitarian concerns to be of international concern’ (Birdsall, 2015, p.54). The development of the responsibility to protect and prosecute norms mirrors the evolution of a changing world order, which Dunne and Wheeler (1999) identify as a ‘critical international society’ where states create and advance cosmopolitan values and universal moral principles and norms that transcend the society of states. The responsibilities to protect and prosecute are measures developed to defend such values, which advance the creation of an international community (world society). As the English School solidarist scholars note, the international society ‘eventually spills over the boundary into world society’ (Buzan, 2001, p.479), because states have a responsibility to a greater concept of ‘the common good, which may include a conception of humanity that is founded in natural or customary international law’ (Ralph, 2007, p.9). As Buzan (2001, p.478) puts it, shared moral norms are the foundation of ‘a more expansive, and almost inevitably more interventionist, understanding of international order’ – this includes both an international responsibility to act to protect populations from gross human rights violations and a responsibility to prosecute those responsible of orchestrating them. Due to this sense of moral obligation, states act as agents of humanity to protect populations and ‘save strangers’ (Wheeler, 2000).

International criminal justice (especially with crimes under universal jurisdiction and the UNSC referrals to the ICC) and R2P blur the lines between the society of states, in which state sovereignty is still the constitutive rule, and the world society, which rests on a ‘common perception of humanity’ (Ralph, 2007, p.17), where ‘the state complements the work of other supranational institutions’ (p.18). Nevertheless, both norms require ‘substantial derogation of sovereignty’, R2P with respect to the norm of territorial non-intervention and the responsibility to prosecute with respect to the norm of sovereign impunity (Thakur and Popovski, 2007, p.41). R2P is a universal agreement that binds states and the international community to prevent and stop mass atrocities, and that asserts that state sovereignty is not absolute. International criminal justice further strengthens a society ‘based on humanity rather than sovereignty’ (Durkheim, 1933, p.63). This is reflected in the Rome Statute, which gives the Prosecutor discretionary power to act without the consent of the UNSC, which makes the ICC independent from the society of states (Art. 15) – however, the UNSC can still have the last word under Art. 16 which gives the Council power to suspend an investigation. Both norms contribute to the erosion of the negative, absolute sovereignty, and strengthen positive sovereignty (see Thakur and Popovski, 2007, p.48). The development of the responsibility to protect and prosecute has shown that the focus has shifted from the negative function of sovereignty (acting as a shell from outside interference in the internal affairs of a state, in order to maintain state pluralism in international relations) to its positive function, which focuses on the population of a state and its protection. This makes sovereigns accountable both internally and externally: to their populations and to the international community (Piiparinen, 2012, p.406).

At the same time, both international responsibilities come secondary to domestic mechanisms, having a complementary function (Contarino et al, 2012, p.272). R2P’s coercive tools are activated on a case-by-case basis when the state ‘manifestly fails’ to protect its population (WSOD, para.139), and the ICC jurisdiction is triggered only when the state is unable and/or unwilling to prosecute (Preamble of the Rome Statute, para.10). Moreover, they both seek to have a supportive role (work in partnership with the state) to achieve their goal rather than use coercive interventions – R2P through Pillar II international assistance and capacity-building, and the responsibility to prosecute through its positive complementarity function that seeks to strengthen states’ capacity for justice. Luban (2013, p.511) describes the latter as ‘norms [getting] spliced into the DNA of domestic law … norm projection at work’, which achieves more than the few trials in The Hague.

To sum up, whilst the two responsibilities are ‘two sides of the same coin’ (Thakur and Popovski, 2007, p.40), they have ‘divided the labour’ of preventing and protecting populations from mass atrocities through a political approach on one hand, and judicial approach on the other.

The Dangers of a Too Tight, Synchronised Relation

How and when these responsibilities apply is crucial to strengthening or undermining their relationship. R2P interventions (supportive or coercive) are prospective, aiming to prevent or stop crises. The responsibility to prosecute is mainly retrospective, holding people accountable after atrocities occurred (Mills, 2015, p.14). However, the ICC, the most recent institutionalistion of the responsibility to prosecute, also holds a preventative function laid down in the Preamble of the Rome Statute (para. 5), which stresses the Court’s role in ending impunity and its contribution to prevention. Holvoet and Mema (2014, p.23) emphasize the ICC’s positive and negative general preventative role by respecting the ‘international criminal law and the core societal values protected therein’ and deterring future crimes. As Mills (2015, p.30) stresses, besides its prevention and deterrence functions, the ICC, by intervening in on–going conflicts, also has a conflict–management role. This can be problematic because these two responsibilities, when employed simultaneously, can undermine each other’s prospects for success (Ralph, 2015, p.5). This risk originates mainly from their asymmetrical relation (Karsten, 2011), rooted in the R2P’s political nature and the legal and apolitical character of the international criminal justice (Ainley, 2015, p.45).

Whilst R2P might benefit normatively from its closeness to the responsibility to prosecute, in practice, their association damages the responsibility to prosecute as it may become politicised. Contarino et al (2012, p.298) argue that the ICC could accelerate R2P’s norm cascade and consolidation (Contarino et al, 2012, p.298). As the former ICC prosecutor stated that the ICC could ‘add legitimacy to Security Council’s decision to apply the R2P concept’ (Moreno–Ocampo, 2006), by establishing a juridical process, rather than a political one, to determine when R2P violations occur (Contarino and Lucent, 2009, p.563). However, when employed in on-going conflicts, first, the ICC risks becoming a politicized tool, which undermines its impartiality and legitimacy (Birdsall, 2015, p.51). The ICC has global reach only when its jurisdiction is unlocked by the UNSC, which can refer non-party states to the ICC. To reach and hold to account people such as Omar al–Bashir and Gaddafi (in non–party states), the ICC is drawn into the political and power dynamics of the UNSC. As Ainley (2015, p.44) argues, the ICC would ‘impinge upon P5 interests if it were to rely increasingly on UNSC referrals to build up its effectiveness’. However, this increase in effectiveness would come at a cost, namely the ICC’s legitimacy as an impartial international institution. By serving the UNSC, the ICC would trade authority (based on its legal character) for power (Ainley, 2015, p.46). This is problematic because impartiality is a key attribute of the ICC.

Second, the responsibility to prosecute in on–going conflicts might also interfere with national efforts for peace, which might include granting amnesties for peace and reconciliation (Mills, 2015a, p.49). However, as has been discussed in the first section of the article, international criminal law prohibits the granting of amnesties for genocide, and customary international law favours punitive, criminal accountability for crimes against humanity and war crimes. Thus, the uncompromising pursuit of international criminal justice makes conflict management difficult (Mills, 2015b, p.73). Sometimes trading peace for justice can have a bigger protection impact. A person’s indictment can interfere with protection and peace agreements because it increases their incentives to continue fighting as the alternative is The Hague (Mills, 2015b, p.82). Given the risks that this tight relationship poses, as Ainley (2015, p.47) concludes, R2P and the ICC can best achieve their goal by focusing on prevention rather than intervention or prosecution. In other words, R2P and the responsibility to prosecute together can achieve more if they focus on their complementarity functions under Pillar II, to strengthen state capacity to prevent, protect and prosecute. As Stahn argues (2015, p.13), it is better to respect the autonomy of these two individual responsibilities and their mutual virtues.

Conclusion

R2P and the responsibility to prosecute are closely related. They are ‘intimately linked’ (Kersten, 2011) and their relationship goes beyond their common recent history, focus on genocide, war crimes and crimes against humanity and their goal of protecting populations from these crimes. These two responsibilities are part of the same global normative project that advances the creation of a world society based on a common sense of shared universal humanity. It is this common humanity that needs to be protected from mass atrocities and to which those who bear the greatest responsibility for planning and organising mass crimes must be held  accountable. Despite the unequal weight in their normative strengths, these two responsibilities consolidate the global discourse for protection against gross human rights violations and increase the guilt for inaction. At the same time, because of the different nature that makes the political and judicial responsibilities complement each other, too tight a relationship can undermine their prospects for success and their protection goal. They both have supportive and coercive functions to pursue their goals. However, when employed at the same time and when they become conflict–management tools in on–going conflicts, international criminal justice can undermine peace efforts and can be used as a political tool, which affects the impartiality and legitimacy of this institution. As a result, their relationship can deliver more when international criminal justice acts retrospectively, and when R2P and the responsibility to prosecute focus on their complementary roles – building states’ capacities to fulfill their domestic protection and prosecution responsibilities, which consolidates prevention.

 

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Wheeler, N.J. 2000. Saving Strangers: Humanitarian Intervention in International Society, Oxford: Oxford University Press

 

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The International Criminal Court: A Shackled Elephant in the Court Room?

Enyeribe Oguh, University of York, United Kingdom

Enyeribe is a postgraduate law student at the York Law School. He graduated magna cum laude in law (LLB) from the University of Leeds in 2015. He is interested in international criminal justice and he is currently working on secession and the use of force.

It is not in the interests of international justice that the ICC should have jurisdiction over nationals of small and weak nations but not those of the large and powerful. (Goldstone, 2012)

The Rome Statute (the Statute) entered into force on 1st July 2002, but has since been subject to much controversy. Yet, recently the Court was described as ‘the jewel in the crown’ of international criminal justice (Stephen, 2012, p.73). This ‘jewel’ is the outcome of several weeks of heated debate and compromise that culminated in the creation of the Statute on 17th July 1998 (Lee, 1999; Conso, 1999). While marking that historic event, Kofi Annan (1999) as UN Secretary General, declared the Statute to be ‘a gift of hope to future generations’ and ‘a giant step forward in the march towards universal human rights and the rule of law’. The Statute, according to Luis Moreno-Ocampo (2008), also signified a major shift ‘from an era of ad hoc international tribunals to … an independent and potentially worldwide system of international criminal justice … aiming to protect each citizen in the world’.

Barely two decades after its creation however, the Court is heavily pilloried in some circles (Robinson, 2015). Critics call it a tool to e exploited by Western powers to humiliate maverick leaders and citizens of weaker states (Goldstone, 2012). This perception swelled in the wake of the UN Security Council (UNSC) referral of the Darfur situation to the Court. The legality of that referral was questioned by former African Union (AU) commissioner, Ramtane Lamamra, in light of the fact that three of the UNSC Permanent Five (P-5) members have not yet ratified the Statute and as such do not belong to the Court’s jurisdiction (BBC News, 2013). Consequently, some leaders, such as Rwanda’s President Paul Kagame, have dismissed the Court as flawed and ‘fraudulent’ (Kezio-Musoke, 2013) while others, including Prime Minister Desalegn of Ethiopia, believe that it is engaged in ‘race hunting’ (BBC News, 2013). The Court has also been accused of lacking universality in its application and choice of legal systems (Badar, 2011).

Against this backdrop, this paper carefully evaluates the merits of some of the above criticisms in relation to the Court’s credibility. To begin with, it examines, in section II, the extent of the Court’s jurisdiction as established in its founding Statute and underscores some of the inherent limits therein. In section III, the thesis of a toothless Court with a political bias against weak states, particularly within the African region, will be critique. In the final section IV, the paper will analyse the ways in which some of the Court’s weaknesses can be judiciously addressed.

The Extent and the Limits of the Court’s Jurisdiction

The creation of the Court in 2002 marked a radically innovative contribution to the international criminal justice system (United Nations, 1998). In furtherance of the purposes and principles of the UN Charter (Rome Statute, 1998, Preamble), the Statute introduced for the first time in history an independent and permanent court (1998, art.1) that has competent jurisdiction to prosecute and punish perpetrators of ‘the most serious crimes of concern to the international community’ (1998, Preamble). Its stated primary objective is to end ‘impunity for the perpetrators’ of the relevant crimes and ‘to contribute to the prevention of such crimes’ (1998, Preamble) through the twin principles of complementarity with national criminal jurisdictions and cooperation with states. It is pertinent, thus, to consider the breadth and the bounds of the Court’s authority as specified in its Statute.

About two millennia ago, the great Roman Senator Marcus Tullius Cicero declared that ‘in the midst of arms, law stands mute’ (United Nations, 1998). But today, in the era of the Rome Statute that Ciceronian maxim may no longer hold water. Not being subject to any statute of limitations (Statute 1998, art.29), the Court is authorised to act ‘in the midst of arms’ or in time of peace, to uphold a non-negotiable red line between hostile parties, and to hold accountable those who bear the most responsibility for trespassing the red line (art.27-28). This is one of the unique innovations of the Court relative to the previous ad hoc tribunals all of which lacked permanent jurisdiction and were usually constituted only at the end of hostilities.

Before it can act, however, the Court must first satisfy itself that it has jurisdiction and that the situation is not inadmissible (Statute, 1998, art.17). Its primary jurisdiction ratione materiae (subject-matter jurisdiction) pertains to the following crimes, to wit: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression (1998, art.5). Except for the latter whose definition was only articulated at the 2010 ICC Review Conference in Kampala, the constitutive elements of the rest of the crimes here are outlined in Articles 6, 7, and 8 of the Statute. Effectively, however, the Court’s jurisdiction over the crime of aggression is suspended until 2017 when its Kampala definition will enter into force provided at least thirty state parties ratify the said amendments (Traschler, 2013). Even where these crimes are alleged to have been committed, however, the Office of the Prosecutor (OTP) would have to establish that ‘a reasonable basis’ (1998, art.15(3)) exists to initiate an intervention. If established, then the Pre-Trial Chamber considers, among other things, the following: (i) that the case is of the sufficient threshold of gravity (1998, art.17(d)); (ii) that it is not under investigation or prosecution by a state with the relevant jurisdiction (1998, art.17(a)); and (iii) that the interest of justice will be served by an intervention (Moreno-Ocampo, 2010).

The Court’s jurisdiction, however, is limited in a number of ways. Principally, it lacks universal jurisdiction and therefore cannot intervene in every state. This is an unfortunate drawback that has driven most of the key controversies surrounding the Court. Under Article 12(2) of the Statute, the Court can only exercise jurisdiction if the relevant crime has been committed on the territory or by a national of a state party (or a state that has accepted the Court’s jurisdiction through a declaration). This provision, which was a negotiated compromise to cement the support of some key opponents of universal jurisdiction like India and the United States (US) during the Rome negotiations, is perhaps the greatest blow to the vision of a genuinely global Court (Robertson, 2002, p.347). In effect, Article 12 of the Statute restricts the Court’s jurisdiction to only the territories and nationals of state parties, save under special circumstances. So, as most states in the Middle East are yet to ratify the Statute, it implies that situations like Iraq, Yemen or Syria (Hilmy, 2013) are beyond the Court’s reach without a UNSC referral (Statute, 1998, art.13(b)).

Similarly, the Court also lacks authority even to consider the crimes within its subject matter jurisdiction that were committed before the entry into force of the Statute on 1st July 2002. This temporal limitation, ‘jurisdiction ratione temporis’ under Article 11 of the Statute, implies that in principle the Court has no retrospective jurisdiction and thus can do nothing about for example a crime of genocide committed on 1st June 2002 within the territory of a state party. Article 24(1) of the Statute clearly specifies that, ‘no person shall be criminally responsible under this Statute for conduct prior to the entry into force of this Statute.’ Whereas this is consistent with Joseph Raz’s (1994, pp.373-4), idea of the prospective principle of the rule of law, it is inconsistent with the tradition of ad hoc tribunals such as the International Military Tribunal at Nuremberg (IMT), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) or the Extraordinary Chamber for the Court of Cambodia (ECCC) that usually looked backwards and prosecuted crimes that had been committed long before the tribunals were established. By choosing 1st July 2002 as its cut-off date, the reach of the Court was scythed down to the 21st century perpetrators.

Furthermore, the Court’s jurisdiction in states that ratify the Statute after 1st July 2002 is restricted to the period only after the entry into force of the Statute for the specific states unless a state indicates otherwise by means of a declaration (1998, arts.11(2), 12(3)). Arguably, such a ‘generous’ provision may explain why as many as 70 states are yet to ratify the Statute (Trachsler, 2013, p.3). It can also incentivise rogue leaders who had perpetrated heinous crimes or who intend to hang onto power by vicious means to be in no hurry to ratify the Statute. Article 11(2) of the latter is again another unfortunate concession from the Rome Conference. Quite unlike the IMT that prosecuted corporations for criminal liability in the Nazi war crimes, the Court has no jurisdiction over jural persons but only over ‘natural persons’ (Statute, 1998, art.25) who are at least 18 years old at the time of the alleged conduct or omission (1998, art.26). Thus, arms and munitions companies that supplied the weapons that were used to slaughter victims, media companies that spread hate-propaganda that led to genocide, and hardened child soldiers (Prosecutor v. Lubanga [2012])[1] who raped or killed victims with impunity cannot be brought before the Court for trials or be made to pay reparations to the victims of their crimes.

At any rate, the Statute grants the UNSC, in keeping with Chapter VII of the UN Charter, the right to refer situations anywhere in the world to the Court as one of the three conditions that can trigger the Court’s exercise of jurisdiction. This Article 13(b) provision gives the Court the semblance of a quasi-universal jurisdiction since the UNSC has the primary duty under Article 24(1) of the UN Charter to maintain global peace and security just as all UN member states are obliged under Article 25 of the Charter to respect the UNSC decisions. Owing to the political nature of the UNSC, however, it can be expected that the use of this referral power will be rare due to its political ramifications. As the case of Syria shows, some of the UNSC P-5 members with a vested interest in ongoing conflict situations may likely veto any referral to the Court and the UNSC has also to be wary of negative public perceptions of its role towards the Court. To date, the UNSC has invoked its referral power only twice with respect to the situations in Darfur and in Libya. Under Article 16 of the Statute, the UNSC is also empowered to instruct the Court to defer an investigation for up to a year (order that is renewable for another year). Both provisions, expectedly, have been much criticised as opening a sort of a back door to the political control of the Court by the UNSC (Robertson, 2002, p.353).

The two other conditions that trigger the Court’s jurisdiction include referrals from state parties and the proprio motu investigations initiated by the OTP. With respect to the latter, perhaps as a way to curtail abuses or ‘politically motivated prosecutions’ (Corell, 2000), the OTP is obliged to obtain the endorsement of the Pre-Trial Chamber on the admissibility of the alleged charges before commencing a formal investigation. Her power, which is also restricted to the territories and nationals of state parties, has so far been exercised only once in the collapsed Kenyan situation. In contrast, about four state parties, including DRC, Uganda, CAR and Mali, have so far made self-referrals to the Court.

Crucially, however, the Court’s jurisdiction is only secondary and complementary (not an alternative) to the national criminal jurisdictions of state parties. Thus, it cannot intervene where a municipal court is already investigating, prosecuting, or has convicted or acquitted an accused (see the Statue, arts.17-18, on issues regarding admissibility). Under this ‘principle of complementarity’ and consistent with the rule against double jeopardy, the Court is also not entitled to exercise jurisdiction over someone who has already been tried ‘by another court’ for conduct that forms the subject of its complaint (Sands, 2003, p.74). Likewise, it cannot retry a case that has already been investigated and dismissed for genuine reasons by a state with the relevant jurisdiction (p.74). Only where the Court determines that the domestic mechanisms are ‘unwilling’ or ‘unable’ to act is it mandated to assert its jurisdiction. Such a determination for instance may consider whether a municipal system is inactive or too dysfunctional to act.

Similarly, where a trial is in process or has already taken place, the Court is authorised to intervene if the local processes are adjudged to be biased or ineffective to bring about justice. In either event, as was first witnessed in the case of Thomas Lubanga (Prosecutor v. Thomas Lubanga [2012]), the Court may invite the municipal authorities concerned to transfer the case to the Court with the aim to assist and to complement domestic efforts ‘to investigate and prosecute’ (Gupta, 2000, p.1). By giving primacy to municipal courts in lieu of the Court, the Statute expresses respect for national procedures. This also has certain practical advantages in terms of cost-effectiveness (Nsereko, 2013), familiarity of the municipal jurisdictions with the local contexts and the sheer impossibility of the Court to have capacity to prosecute all indicted or indictable key perpetrators in The Hague. The setback, however, is that the Court’s intervention in a conflict without the relevant state’s consent (or even with its consent) has drawn criticisms for feeding negative judgments of the state’s international image and the quality of its local systems. To this we now turn.

The Elephant in the Room: A Court with a Political Agenda?

In a critical essay on judges and the rule of law, Ronald Dworkin (2009) opined that court decisions have political consequences. Asked, however, if politics influenced his decisions at the Court, the former Prosecutor Moreno-Ocampo replied, ‘On the contrary, I am putting a legal limit to the politicians. That’s my job. I police the borderline and say, if you cross this you’re no longer on the political side, you are on the criminal side’ (Smith, 2009). Notwithstanding the former Prosecutor’s frankness, the Court has appeared to many as a judicial body operating with a covert political agenda within a highly political terrain. In a sense, the Court has seemed to some like an elephant in the room: big, strong and visible, yet unable to command the respect of some key states.

Much of the criticism, however, has focused on the Court’s operations in Africa. Many have argued that the Court has been unfairly selective of African situations in a manner that appears to suggest that Africa has the disproportionate cases of violent conflicts in the world (Imoedemhe, 2015). Thus, the Court has been denounced for scapegoating Africa and for exploiting the continent as a laboratory for trialling novel international criminal laws (Imoedemhe, 2015). This perception is acutely strong among the African elite with some like Kenya’s President Uhuru Kenyatta describing the Rome Statute as a ‘dysfunctional instrument’ (Ayaga, 2016). The fact that the AU recently adopted a proposal for a mass withdrawal of African state parties from the Court epitomises the longstanding frustration and disappointments of many African leaders with the Court’s alleged bias against Africa (Ayaga, 2016). For some time, a number of African state parties like Kenya and Uganda have been threatening to withdraw from the Statute (‘A Joint Report’, 2014), and last year South Africa also declared its intent to terminate its state membership (Mudukuti, 2016).

Ex facie, the above threats and repudiations towards the Court by some African leaders have grounds. Although one third (34) of the Court’s member states (124) are in Africa, all but one (Georgia) of the ten situations under investigation are African (ICC, 2016). It would, ergo, appear as claimed that the Court is unfairly targeting Africa (Agence France-Presse, 2016) or that the continent has the lion’s share of genocidal villains in the world. Nevertheless, a careful scrutiny of the situations under consideration reveals that of the nine cases from Africa, five (DRC, CAR, Uganda, Mali, and CAR II) had been self-referrals by the state parties themselves, two (Sudan and Libya) were Security Council referrals, one – the Ivorian case – was a declaration made by the state while only the now-abandoned Kenyan case had been initiated by the OTP. The large number of self-referrals from African states then weakens the strength of the argument that the Court is engaged in a neo-colonial ‘race-hunting’ of Africans. Although the Court is presently conducting preliminary examinations in three other regions outside Africa, including Eastern Europe, the Middle East and South America, Moreno-Ocampo (2008) aptly avers that the Court’s legitimacy and success cannot be dependent on the regional or global balance of cases that it handles.

The preponderance of self-referrals from Africa may be revealing of the trust of those African states in the Court’s legitimacy and capacity to enforce justice against the perpetrators as well as to bring closure for the victims. It is perhaps also indicative of the precarious difficulties involved in prosecuting influential perpetrators locally. For instance, before referring the situation to the Court, the DRC had attempted but failed to prosecute Thomas Lubanga and his co-accused in the municipal criminal courts. It is similarly not hard to imagine the high risk and near impossibility of prosecuting ‘big fish’ like the late General Augusto Pinochet[2] or former President Lauren Gbagbo (Prosecutor v. Gbagbo and Goudé [2015]) in their national courts without significant external influence. Thus, it is in such situations where the domestic jurisdictions are incapable of handling powerful perpetrators that the Court’s complementary jurisdiction is properly activated.

Notwithstanding the foregoing prospects, the Court’s complementary interface with state judicial institutions has likewise been deplored as a mechanism for imposing ‘victor’s justice’ (Roach, 2012) and show trials aimed at ‘the destruction, or at least the disgrace and disrepute, of a political opponent’ (Peterson, 2007, p.260; Shklar 1964, p.149). Critics have noted that all the self-referrals from the African states have been made against defeated political rivals while the governments’ and/or their supporters’ responsibilities are shielded from the Court (Roach, 2012, pp.67-69; Holligan, 2016). In Uganda, for example, Joseph Kony and some of his Lord’s Resistance Army (LRA) fighters have been indicted at the Court while the atrocities committed by the Ugandan forces are not even investigated (Roach, 2012, p.67). Even the two UNSC referrals are also being read as a ‘power play’ by some Western powers to humiliate and to punish perceived enemies in President Al Bashir and the late Colonel Gadhafi. It was on that score that President Kagame recently hinted that Rwanda cannot be a state party to the Court since, for him, the latter perpetuates Western imperialistic agendas (Kezio-Musoke, 2012).

At the same time, however, what President Kagame and his ilk seem content to exclude from the discourse is the question of their self-interests. For instance, between 2010 when he was indicted at the Court until 2013 when he was elected Kenya’s President, Kenyatta together with his co-indicted Deputy, William Ruto, had cooperated well with the Court. But, once assuming the reigns of power, their attitude and rhetoric became somewhat hostile and they began to insist upon their ‘sovereign’ immunities as head of government and state officials respectively. It is, therefore, no surprise that their cases have now been allegedly abandoned for lack of evidence caused by witness intimidations (The Prosecutor v. Ruto and Sang [2016]). The Statute categorically specifies under Article 27(1)[3] that unlike in customary international law the immunity of state officials (both ratione personae[4] and ratione materiae[5]) is irrelevant and cannot exonerate an individual from ‘substantial criminal responsibility’ (Akande, 2003, p.640), regarding the specified crimes.

Lastly, while it is mostly true that law and politics are interrelated, both can also be isolated one from the other. The Judges at the Court as well as the Chief Prosecutor are essentially elected by the Assembly of the state parties on account of their professional and international experience and are required to uphold justice and fairness without pandering to selfish interests and political considerations (Moreno-Ocampo, 2010). Yet, the fight against impunity has always been a fight against politics (Nouwen and Werner, 2010) and selfish interests. Thus, decisions and acts of such a momentous court as the ICC, to paraphrase Dworkin (2009), will surely have monumental consequences. To be able to exercise universal credibility, therefore, it is imperative that the Court is not only above board, but also be seen to be above board. The next section will proffer some means by which the Court can attain this objective.

Unshackling the Elephant Court: Looking Ahead

Having briefly examined the scope and limits of the Court, it is important to consider certain mechanisms that can serve to remedy some of the lacunae identified above. Arguably, the Court is still cutting its teeth, albeit slowly and contentiously, yet it has the potential to have an enormous impact on the global criminal justice system. ‘By holding individuals personally accountable,’ says Human Rights Watch (1998), ‘the Court could be an extremely powerful deterrent to the commission of genocide, crimes against humanity and serious war crimes that have plagued humanity’ for so long. But realising this goal has so far been a staggering task. Looking ahead, therefore, the first critical challenge the Court needs to address is its lack of universal jurisdiction.

It was the intention of the drafters of its Statute that the Court should have the competent authority and the capacity to prevent, deter, punish and end the culture of ‘domestic impunity’ (Gupta, 2000, p.3) anywhere in the world. But political interests and concessions shaved the Court of universal jurisdiction. This gap, unless it is plugged, will continue to undermine the Court’s credibility. Universal jurisdiction would vest the Court with the power to institute legal action against any alleged perpetrator of the relevant crimes ‘without regard to where the crime was committed, nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction’ (Macedo, 2006, p.21). This capacity is already extant in international law as reflected in the principle of aut dedere aut judicare (‘either extradite or prosecute’) that is embedded in many treaties. Thus, universal jurisdiction gives national courts the power to prosecute perpetrators of crimes deemed to be of such exceptional magnitude as to demand international condemnation (Macedo, 2006, p.35).

If the municipal courts of individual states can unilaterally exercise such a ‘privileged’ jurisdictional power, then it stands to reason that a supra-national court established through a multi-lateral treaty between sovereign states deserves to have such a power if it must lay any authentic claim to real complementarity, universality, credibility and respect. Considering that the principle of sovereign immunity of state officials often impedes states from arresting accused state officials, it is only a supra-national court not bound by such political immunities that holds the best chance of bringing such indicted persons to justice. Hence the Court can gain universal jurisdiction in two ways: (i) by actively encouraging and inducing non-state parties to sign and ratify the Statute until all states have joined it or, (ii) through a binding UN resolution mandating all states to ratify the Statute within a specified time. Either alternative, while possible, would be hard to attain.

In addition, the UNSC right to defer investigations under Article 16 of the Statute poses problems to the Court owing to the political ramifications of any such deferral. Already, as I have shown in the foregoing, the Court has taken enormous criticisms for the UNSC referrals and one can only imagine the opprobrium that could result from any future deferrals, particularly after deferral requests made to the UNSC by the AU with regards to the Al Bashir’s case had been denied. Since political calculations often drive the proceedings at the UNSC, in order to preserve the judicial independence of the Court, Article 26 of the Statute should be repealed or at least amended so as to debar the UNSC from interfering with the Court. Apart from Resolution 1422[6] in which the UNSC, at the insistence of the US, requested the Court not to investigate or prosecute any indicted UN peacekeepers within a specified period, the UNSC is yet to invoke this power to defer an ongoing action at the Court. Yet, it is conceivable that in the future a decision to defer a situation in state A or state B could be vetoed by a P-5 state for political interests. Besides, in situations where states or regions (as was done by Kenya and the AU) request the UNSC to instruct the Court to defer an investigation but the requests go unheeded it could be interpreted as a sign of blatant disrespect to the integrity of the state and/or region. This could fuel threats of withdrawals from the Statute and accusations of self-serving agendas. As Brownlie (2003: 575) rightly notes, so long as the UNSC retains this deferral power in the Statute, ‘political considerations, power and patronage will continue to determine who is tried for international crimes and who is not.’

Relatedly, the Court was established to be an independent Court and must therefore be vested with true judicial independence. The doctrine of separation of powers is a key principle cherished in all liberal democratic states. In municipal jurisdictions, it would be arbitrary for state executives to be issuing orders to courts to terminate or to suspend ongoing proceedings. Thus, the visible separation of the Court’s structure and personnel from the UN structures should also be reflected in the practice and operations of the Court. The power to defer prosecutions, where necessary, should be discretionary to the Court where there are compelling reasons to do so, or a determination made by an absolute majority of the judges of the Court not by the UNSC. The latter should, however, like state parties, retain the power to refer situations to the Court. But the onus must be the Court’s to decide if a referred situation is admissible or not to justify intervention. To ensure the principle of checks and balances, only the Assembly of State parties (or the UN General Assembly when the Court has universal jurisdiction) may be vested with the statutory right to request a stay of proceedings at the Court. The latter should also be free not to grant the request. When these structures have been put in place, it would then be safe to assume as the International Court of Justice noted in an ‘Advisory Opinion’ [1962] regarding the General Assembly that the UNSC would not ‘seek to fetter or hamper the Court in the discharge of its judicial functions.’

Additionally, Article 98 of the Statute[7], which requires the Court to obtain a third states’ cooperation before it can go proceed to seek the surrender of its national from a member state, is a major clog in the operational capacity of the Court. What this provision effectively does is to allow states on whose territory is found a person wanted by the Court to obstruct the Court’s request by appealing to their obligations under international law to a third state (Akande, 2003, p.642). Repealing Article 98 is especially crucial in light of some recent US schemes, mostly instituted by the former President G W Bush Administration, to undermine the Court. After ‘un-signing’ (Rhea, 2012, p.190)[8] the Statute in 2002, the Bush regime actively entered into bilateral immunity agreements with several states to ensure that no US citizen is ever ceded to the Court (Eye and Goldberg, 2012). It also enacted the infamous American Service-Members’ Protection Act (ASPA), otherwise known as the ‘Hague Invasion Act’, which disallows the US agencies as well as countries receiving US military assistance from cooperating with the Court in any form (Rhea, 2012, p.193). The Act also restricts US military participation from some UN peacekeeping operations and authorises the US President to use ‘all necessary measures’ to repatriate any US service personnel and certain other citizens detained or imprisoned at The Hague (Eye and Goldberg, 2012).

If the Court is vested with universal jurisdiction, however, the Article 98 of the Statute will automatically become extraneous since the question of third state consent will fall way. A state party that prioritises an obligation to another state member to defy a request from the Court to surrender an indicted person would then be in breach of its obligations to the Court. The real challenge would be how the Court could enlist state cooperation with the Court at all times and to ensure that states prioritise obligations to the Court over competing obligations to state parties. Similarly, as the Article 27 provision shows the Court is no respecter of distinctions or immunity based on official capacity, a state can no longer appeal to its obligation under international to another state with respect to the immunity of a person or property, so as to defeat an arrest warrant request by the Court. The stark inconsistency of Article 98 with Article 27 would, therefore, come into sharper focus under the light of a universal jurisdiction ensuring that the offending Article 98 of the Statute is either repealed or substantively amended.

Lastly, it must be emphasised that the Court can achieve little without maximum cooperation from states, including even non-state parties. Part 9 of the Statute sets out the various forms and levels of this cooperation. It has been a major test for the Court so far to obtain the cooperation of states under Articles 91 and 92 of the Statute to arrest persons it has issued arrest warrants for. To date, such wanted persons like Joseph Kony (Prosecutor v. Kony and Otti [2005]), President Al Bashir (Prosecutor v. Bashir [2009]) and Al Islam Gaddafi (Prosecutor v. Gaddafi [2011]) are still at large. In some cases, these persons are living normal lives, performing official functions and even visiting state parties, yet no arrests are being made. The damage this blatant disregard does to the image of such a fledgling Court is huge. It suggests to sceptics and to other wanted perpetrators that the Court is little more than a howling Rottweiler or at best just a vexing elephant in the room. There appears to be no surer way to institute a culture of impunity than for state officials to refuse to comply with the orders of the Court.

To this end, the Court could consider issuing ‘contempt of court’ notices against states that openly violating its order and reporting such states to the Assembly of State parties for further action. If the Court had universal jurisdiction, such breaches of the Court’s orders could be reported to the UN General Assembly to authorise the UNSC for appropriate action or sanctions. The Court’s boldness in this regard would be bolstered by the support of civil society and of the wider international community. As many state leaders would not willingly delegate powers to the Court that could ultimately jeopardise their own interests, the Court needs to perform its work especially within these early to the highest standards of credibility and impartiality. A wide public approval and civil society lobbying could be significant in winning the Court the required political capital to effect the reforms identified in this paper in the years ahead.

Conclusion

Notwithstanding the many criticisms and weaknesses of the Court, the one thing that remains undisputable is that it has put ‘the world on notice’ that impunity for certain crimes will no longer go unnoticed and unpunished. Essentially, as Kofi Annan aptly says, ‘it gives concrete expression to Francis Bacon’s famous dictum that not even a sovereign can make “dispunishable” those crimes which are malum in se – evil in themselves, “as being against the Law of Nature”’ (Radio Radical.it, 1999). As is common with many new institutions, the Court is still passing through a developmental strain, but it is learning fast from its mistakes and becoming more self-aware of its strengths and constraints. It can thus be expected that after this initial phase and taking into account many of the issues and flaws herewith considered, the impact of the Court could reverberate from The Hague to all corners of the world. But this ‘jewel’ in the crown of international criminal justice will have failed if the hope of ‘never again’ that greeted its inauguration in 2002 is allowed to be smothered by the cold ‘reality of again and again’ (Goldstone, 1997, p.316).

[1] The first case that was ever tried at the Court concerned the recruitment of child soldiers by Thomas Lubanga in the DRC. He was convicted in March 2012 and sentenced to a total of 14 years in prison.

[2] General Pinochet’s regime ended in 1990 and so he would have escaped the Court’s jurisdiction. Although criminal suits were filed against him in England, Spain and Chile during the late 1990s for various crimes against humanity committed during his ‘reign of terror’ in Chile from 1973 to 1990, he was declared medically unfit to stand trial and died in 2006.

[3] Article 27(1) of the Statute reads: ‘This Statute shall apply equally to all persons without any distinction based on official capacity,’ including ‘a Head of State or Government’. Article 27(2) states: ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such a person.’

[4] The immunity attached to officials like presidents, heads of governments and diplomats, which insulates them from the criminal jurisdiction of both domestic and foreign courts while in office.

[5] This relates to the immunity accorded to state officials in relation to the exercise of their official duties.

[6] UNSC Res. 1422 (2002) UN Doc. S/RES/1422, para.1. It states that the UNSC ‘Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decide otherwise.’ This request was renewed on 12 June 2003, but never again thereafter.

[7] Article 98(1) of the Statute states: ‘The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’

[8] Harry Rhea has argued that the word ‘un-sign’ misconstrues the intent of the letter signed on behalf of President Bush by the former US Undersecretary for Arms Control and National Security, John R. Bolton and delivered to the erstwhile UN Secretary General, Kofi Annan, on 27 April 2002. For Rhea the letter simply indicated the United States resolve not to accede to the Statute rather than the intent to cancel or withdraw its original signature. But Rhea’s argument is not persuasive considering the fact that the US together with other non-state parties was not obliged to make a formal deposition on non-ratification of the Statute to the Secretary General. Events at the time, particularly the ‘war on terror’ in Afghanistan and the looming Iraqi war may have induced the Bush Administration to retract the original signature to avert any vicarious liability.

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