Another blow was dealt to global justice in June when Sudanese President Omar Al-Bashir, currently wanted by the International Criminal Court (ICC) for genocide, crimes against humanity and war crimes, was treated to a full menu of diplomatic immunity rights on a visit to South Africa. International legal commentators looked on in dismay as the SA government refused to enforce the arrest warrant, in violation of its obligations under the Rome Statute, and instead allowed the notorious leader to return to Khartoum a free man.
What’s sadder is that this event can’t even be interpreted as one-off act of rebellion against the Court. The exact same thing occurred in 2010 when Al-Bashir made a state visit to Kenya. And at the 21st African Union summit in 2013, a group of African leaders undertook not to enforce ICC arrest warrants against heads of state. The pattern is a clear one: the African tides are turning against co-operation with the Court, once seen as an answer to impunity for the world’s worst crimes.
The popular narrative of critics of the ICC focuses on who the court seems to target. In a nutshell, the Court targets Africans, ignoring the potential culpability of individuals in other war zones, or indeed, Western leaders. Certain facts would suggest that there is a grain of truth in this thesis; of the 32 individuals indicted by the Court, every single one is from an African country, as are both the individuals the Court has convicted. But this rhetoric is not only misleading, but dangerous, and needs to be critically examined before being used as a justification for letting the perpetrators of mass atrocities walk free.
First of all, it is useful to point out who exactly is voicing these criticisms. They became prevalent after the indictment of Al-Bashir by Chief Prosecutor at the time, Luis Moreno Ocampo. Put in this context, the argument loses some of its credibility: the loudest proponents of this view were other African leaders that feared indictment themselves. Amongst the most vocal critics of the Court’s work are Robert Mugabe, Yoweri Museveni and the Ethopian Foreign Affairs minister. Taken in this light, their criticisms are a cheap response to the possibility that they, their bosses and their allies could be served up a warrant. It is a fairly easy way to dismiss the Court’s credibility to accuse it of having a racial agenda. At that point, the narrative changes: instead of being a Court that seeks to bring the worst criminals in the world to justice and empower victims, it is a biased Western institution which seeks to undermine sovereign states.
But let’s take that accusation at its best, and assume that it is voiced out of genuine concern for the demands of justice, rather than political point-scoring. A brief examination of the ICC’s docket shows us that is not the case. There are currently nine investigations pending before the Court, known as “situations”. Of those, four were self-referrals, where countries themselves agreed to submit to the Court’s jurisdiction. A further three are the result of referrals from the Security Council, at times where other African states, including allies of the referred countries, were non-permanent Security Council members. Just two of the cases currently being investigated were initiated by the Office of the Prosecutor- and one of those is a re-examination of Central African Republic self-referral. With these facts in perspective, it is difficult to maintain the argument that the ICC is some kind of interfering, racially biased presence. On top of all that, of the Court’s nine ongoing preliminary examinations- the step before a full investigation is opened- just two are based in African countries. The rest are examining the situations in Colombia, Ukraine, Honduras and Georgia, to name but a few.
But what is possibly the most frequent argument voiced by critics is that massive double standards exist in the international community, in that numerous African leaders have been indicted for alleged war crimes, yet the Western leaders at the forefront of the Iraq War, who are allegedly responsible for many war crimes, remain untouched. To this, I have two responses. It is, firstly, fairly spurious reasoning: the fact that some leaders are not being prosecuted does not mean that prosecuting other leaders is unjustified. All criminal justice systems are imperfect in terms of the number of people they end up bringing to justice. That does not make the end goal any less desirable.
There are also other practical considerations which prevent the ICC from launching an investigation into, say, Tony Blair. The Court operates on the principle of complementarity, meaning that cases are only admissible when there is no prospect of a trial being conducted fairly on a national level. This may occur when the accused is a Head of State- as in the cases of Kenya and Sudan- or where justice cannot be administered fairly- as in the case of Libya. Generally, the threshold is very high, so a case against Blair would inevitably be declared inadmissible if it can be proven that the British justice system is up to scratch.
The only potential complication of this is the now infamous Chilcot Enquiry. According to most recent estimates, the findings will not be published for at least another year. But ICC officials have previously indicated that they would be willing to begin investigating the UK for war crimes if the findings are inconclusive, or do not deliver sufficient accountability. True, this may prove to be an empty threat. The UK is one of the ICC’s biggest supporters and financial contributors, so it would perhaps be wise for the Court to engage in some judicial economy so as not to lose key support and funding.
But it is unhelpful in a discussion of the Court’s future to avoid tackling any of these criticisms. Fundamentally, the people it needs to reach out to and gain the support of are victims. Without their backing, investigations would be impossible to conduct, as victims would not be willing to come forward with the evidence needed to convict the defendants. Moreover, if the victims themselves feel that the ICC cannot be trusted, they are unlikely to feel that they have obtained the justice they need and deserve. But if the pervasive narrative of anti-African bias starts gaining more credence, the ICC will become the foe of the exact people it hopes to help. This course needs to be reversed. The greatest challenge now facing the Court will be in striking the delicate balance between maintaining support for its mandate, and ensuring that the perpetrators of the worst atrocities escape scot-free.