/ 3 July 2012

Deep Read: Justice? That’s rich, coming from the ICC

The Dosso family
The Dosso family

No US leader for example will ever appear before the ICC for crimes including extrajudicial killings by drones and indiscriminate killing of civilians, cruelly dubbed 'collateral damage' because the US refused to sign up to the court and ratify the Rome statute that brought the ICC into existence.

This situation would not be so crucial if the US and its allies did not hesitate to use the very ICC to push their own cause. No wonder the ANC has resolved to challenge the ICC's preoccupation with African leaders. The ICC only has itself to blame for creating this perception of bias.

This young court has allowed itself to be recklessly used by those wishing to drag it into political conflicts such as those in Libya. On its tenth anniversary, the ICC has very little to be proud of, but a lot to ponder. The cases that have an over political agenda have not only undermined the ICC's credibility, but they threaten its long term viability.  

President of the International Progress Organisation Dr Hans Köchler cut through all the verbiage in a lecture he delivered in 2009 when he said: "There should be no illusion about it: The idea of universal justice simply makes no sense if the most powerful countries are determined to stay away from such a court." The independence and impartiality of the ICC is a crucial test that it needs to pass without any shadow of a doubt.

As it stands right now, the ICC is forced to ignore certain crimes and pursue others with a vigour that only highlights the ones it ignores.

The US is not the only world power that has not signed. Other countries include Russia, China, India, Israel, Turkey. It can only punish the weak and has to spare the powerful – a fact that will completely undermine the court's credibility in the eyes of the international public.

Whatever anyone may have thought of Libya's Muammar Gaddafi, the unity of purpose between Nato, the UN and the ICC suggested a blur between the political and the judicial that undermines the ICC's independence.

Since his death, the ICC has yet to target anyone for the widely reported pogroms that targeted Libya's black population as well as those once aligned to Gaddafi. In the case of Libya, the court showed its willingness to engage in politically motivated indictments.

Sadly, the silence of both the ICC and its big brother the UN reinforce the suspicion that its work in Libya was part of a political process to effect regime change.

Since then the ICC has not shown any resolve regarding its jurisdiction over Saif Gaddafi. Even when its workers were abducted by the Nato-installed regime in Tripoli, the ICC's response was tepid and lacked the fire of its pre-Nato raids pronouncements.  

Köchler points out that the alignment of the ICC with the politics of the UN further compromises its independence. His extensive work points out that article 13(b) of the Rome Statute ties the supposedly independent ICC to the UN by authorising the Security Council to create jurisdiction where it otherwise would not exist on the basis of the Rome Statute.

Instead of ducking the judicial power of the ICC, the US would do well to help strengthen those aspects of the ICC that it continues to criticise and then sign and ratify the treaty.

Köchler sums up this untenable position in this way: "This is not only in violation of the general principle of international law according to which only states party to a treaty are bound by that treaty's provisions [a point repeatedly emphasised by the US in its arguments against the ICC] – it effectively subjects the court's exercise of jurisdiction to the vagaries of international power politics."

In its current form, the ICC is deeply, perhaps fatally compromised and those that dismiss concerns with its limited jurisdiction underestimate the importance of perception.

As it stands, the ICC might as well be renamed the African Criminal Court. The court is quick to declare crimes by Africans, "crimes against humanity". You have to wonder why Syria and Bahrain have not yet been added to the ICC's radar even as the crimes by embattled regimes reach astonishing levels.

If these were African countries, the ICC would have issued a warrant for Assad's arrest long before the Homs massacre.

This is in stark contrast to its reluctance to do so when similar crimes are perpetrated by rulers from elsewhere is remarkable. Various attacks, invasions and bombings of civilian populations in places like Bahrain, Iraq, and occupied Palestine have yet to grab the attention of the ICC.

It is remarkable that in its first decade, the ICC has not even once considered referring Israel's captains given the reported deaths and killings in Palestine.

But it is nevertheless evidence of the power that is wielded by the world's most powerful nations. They will not take the bitter pill they so readily force down everyone else's throat.

A case in point is how they found their way around the Rome Statute. Once they had found a way to rope in the UN Security Council, the line that should divide the judicial from the political was crossed. What we now have is a scenario in which international powers effectively dish out the ICC justice they have ensured they are shielded from.

If you truly want to grasp the ease with which the ICC will cry "war crime" when it comes to Africa, you need look no further than the situation in Mali. Just this week, the court could not resist issuing yet another threat of declaring a war crime. The venom of the court's Fatou Bensouda was aimed at Mali insurgents who smashed the entrance to a 15th century Timbuktu mosque on Sunday.

"This is a war crime which my office has authority to fully investigate," Bensouda said without missing a beat.

Of course it's a devastating blow to global heritage that the Timbuktu treasures are being vandalised. But to call it a crime against humanity reinforces the perception that this court is first and foremost a political rather than judicial institution. This underlies the restriction on the powers of the court placed by the Rome Statute to prevent it growing into an unrestricted power.

No wonder then that Kenyan national human rights commissioner, Hassan Omar Hassan has said: "There is a perception or there is a politicisation of the ICC process in Africa and I think it is done as part of perpetuating impunity so you cannot win in the corridors of justice therefore perpetuate [a] political process."

Hassan is not alone in finding that the ICC is so politicised as to lack credibility. The ICC was ostensibly set up to prosecute international crimes in a comprehensive, credible and consistent manner, but for as long as the Rome Statute is ratified by some, this is impossible. That a global court for justice cannot touch some of the most powerful players on earth weakens its power.

Many of the African criminals that the ICC is pursuing and those it has brought cases against deserve the attention of this court. But as an institution the ICC has a bleak future if it keeps on saying that it is impartial yet pursues only certain cases and ignores others.

The list of cases, open or to be opened, reads like a who's who of Africa's baddies like Charles Taylor, Omar al-Bashir and Gaddafi. But this limited focus will just not do as atrocities are a global and not just an African phenomenon.

The ICC has to add other countries to its current list that only has Sudan, Uganda, the Democratic Republic of Congo, the Central African Republic, Kenya, Côte d'Ivoire and Libya.

For all its promise, the ICC has simply not lived up to its potential, and in its current incarnation it is unlikely to deliver anything but partial justice. In an age when many of the West's most famous spin doctors like Hillary Clinton like to promote the idea of universal justice and freedom, the fact is that the permanent members of the UN Security Council have veto power over the ICC.

If they don't like an indictment, or think it undermines their interests, they can simply exercise their veto and the criminals will walk free. It is simply galling that members of the UN Security Council were able to organize veto powers over cases of the ICC.

This reduces the ICC to a shadow of the institution it could be in the arena of international criminal law. For as long as countries like the United States refuse to sign and ratify the treaty, the ICC will remain a symbolic institution, weakened by its lack of jurisdiction over some of those most active in the world's conflict zones. A court that bends to the wishes of the powerful that it has no authority over, fatally compromises any claims it may have on its  independence.

The problem for those countries that have not ratified the treaty is that even if the ICC has no jurisdiction over them, this does not stop the public and other observers to pronounce on their involvement in war crimes. This leaves a bitter taste as there is a sense that once again the powerful nations can load the dice to roll in their favour and be spared from judicial scrutiny by the ICC.

Victor Dlamini is a Jo'burg based writer, communicator and portrait photographer with a deep interest in social issues. Follow him on twitter.