ICC must maintain its credibility
The standoff between the African Union (AU) and the International Criminal Court (ICC) was precipitated in 2009 by the arrest warrant issued for the president of Sudan, Omar al-Bashir, for alleged war crimes committed in Darfur.
Kenya's President Uhuru Kenyatta also received a summons for alleged war crimes during the 2007 post-electoral violence in his country. So the ICC has two sitting African president on its docket.
At its summit last month, the AU heads of state reiterated their policy of non-co-operation with the ICC.
It sees its prosecutions in Africa as selective, and called on its members to toe the line.
Impunity for alleged crimes in Kenya and Darfur should be pursued, however, but the politicisation of the ICC at both domestic and international levels has led to doubts about its credibility.
Bashir's case was referred to the ICC by the United Nations Security Council, which is dominated by the permanent five (P5) members – the United States, Britain, France, Russia and China.
The only other case referred by the council to the ICC was that of the late Muammar Gaddafi, for alleged war crimes prior to the US and Nato military interventions in Libya. There are allegations that Nato troops committed war crimes against innocent Libyans, which could also be subject to an ICC investigation.
By contrast, Syria's Bashar al-Assad, who allegedly perpetuated chemical weapon attacks on his own citizens in 2013, has not yet been referred to the ICC, which is enabled by the Rome Statute to investigate precisely such an "international crime". Analysts say that, although Assad is a prime candidate for an ICC docket, he is unlikely to make a trip to The Hague in the near future because of his "friends in high places", notably Russia and China in the security council.
In addition, potential American war crimes in Yemen, Pakistan and Afghanistan, through drone attacks, will not be referred to the ICC by the council, because Washington will use its veto power to prevent it. Similarly, atrocities committed by the British military in Iraq, recently documented in a dossier submitted to the ICC, are also unlikely to be prosecuted there.
The ICC also has jurisdiction to deal with the international crime of aggression, which could subject Russian atrocities in Chechnya, Chinese dominion of Tibet, and the French military intervention in Côte d'Ivoire to scrutiny.
Similarly, alleged British war crimes committed during the Iraq invasion, which have recently been documented in a dossier submitted to the ICC, are also unlikely to be prosecuted by the ICC. The court has jurisdiction in the international crime of aggression, but alleged Russian atrocities in Chechnya, Chinese dominion over Tibet, and the French military intervention in Côte d'Ivoire will not be subject to ICC prosecution because of the politics of the security council and the reality of global power imbalances.
The P5 can argue that their domestic courts will prosecute their citizens and therefore there will be no need to refer the cases to the ICC, which is a court of last resort. But their record of prosecuting their own military personnel for such crimes is poor. African countries have argued that such omission smacks of hypocrisy and is evidence of a racist international policy of selective justice.
African presidents have also used the ICC in a self-interested manner, with leaders in Uganda, Côte d'Ivoire and Mali referring political opponents to the court. This has further undermined the ICC's credibility. In March 2012, the decision against Thomas Lubanga, a political opponent of Democratic Republic of Congo President Joseph Kabila, failed to stabilise the country and was followed by atrocities committed by the M23 rebel movement.
There have been convoluted legal arguments for why the ICC is so focused on Africa. This lack of universality suggests that the ICC does not merit the soubriquet "international". The politicisation of cases and the failure to uphold legal criteria (for example, in Syria) suggest that the ICC does not merit the moniker "court". That only leaves "criminal" in its title. What is indeed criminal is the reality that some victims should not hold their breath if they live in countries shielded from the ICC by the machinations of the P5. Is this justice?
The preamble of the Rome Statute heralded the advent of "peace" through fighting the impunity of the criminally responsible. Twelve years on, prosecutions have not led to national reconciliation; if anything, they have increased tensions.
The international criminal justice system can only be redeemed by a surgical transformation of global governance. Despite legal arguments to the contrary, the project of international criminal justice is intimately linked to that of radical global governance reform. In the absence of a global democracy to prevent the powerful P5 running roughshod over the international criminal justice system, the ICC will remain an elaborate and expensive sham, a two-tier judicial framework with one form of justice for the weak and none for the powerful.
Dr Tim Murithi is head of programme: justice and reconciliation in Africa at the Institute for Justice and Reconciliation in Cape Town and the editor of the Routledge Handbook of Africa's International Relations.