By Mohammad Baseer
“No nation has the right to make decisions for another nation; no people for another people.” – Julius Nyerere
The International Criminal Court (ICC or ICCt) is an institution acting as a permanent tribunal to prosecute people for war crimes, crimes against humanity and genocide.
This means it has the authority to adjudicate on claims brought to it, so it works on a referral system just like a normal court but for claims from all over the world.
It also has the power to prosecute for the crime of aggression (defined as a state using armed forces against another state, whether by invasion, blockade of ports & coasts, or even if one state’s armed forces were allowed into another state for a specified period and they surpassed that period).
The first impression one might glean from its founding principles is that the ICC is benevolent, acting for the greater good of the entire world.
However, to date it has indicted and prosecuted so far are approx 90% Africans. The ICC is therefore probably better described as the ICCA, International Criminal Court for Africans, as it seems to harbour a deep-seated “Africa problem”
From this one might accidentally conceive the idea that only Africans commit war crimes, genocides and requires the “higher” morals of Western created institutions to continue to act as parent to these wayward African orphan post-colonial states. And this dyadic parent-child relationship is not limited to the ICC, but to every Western NGO, Government, AID agency, Think Tank, IMF, World Bank, which has Africa’s “best interest” at heart.
As of July 2012 the ICC consists of 121 states parties, 32 signatories and 41 non-signatory UN member states. The states parties are countries that have both signed and ratified the Rome Statute and are thus subject to the ICC’s jurisdiction, including all of South America, most of Europe and approximately half of Africa. The non-signatories are those countries that neither signed nor ratified the Statute and are thus exempt from its jurisdiction, such as China and India.
“The big fish – the United States and the NATO nations – are free to violate the international law, to violate human rights with complete impunity. Since the ICC was founded, the United States invaded Iraq …. Israel attacked Gaza, targetted a civilian population … so it seems these rules apply only to weak nations.” – Kimberly Margaret
The signatories are countries that have signed but not ratified the Rome Statute, effectively meaning they are undecided as to whether or not to accept its jurisdiction (an exception being Côte d’Ivoire, which does accept it). These signatory states are required by the Vienna Convention on the Law of Treaties to not commit acts “which would defeat the object and purpose” of the treaty until they definitively decide not to become states parties . There are 3 countries that originally signed but have withdrawn from state party status, i.e. Sudan, Israel and USA, which makes them totally outside its jurisdiction.
Its headquarters are in The Hague, South Holland, Netherlands. Its top four funders are Britain, Italy, Germany and France  – incidentally all European Union members. The first Chief Prosecutor was Luis Gabriel Moreno-Ocampo, an Argentinean lawyer and prosecutor who is currently 60 years old. In 2006 he dismissed a staff member who accused him of sexual abuse, though that allegation was found to be false. His 9-year term ended in June of this year, and he was replaced by a Gambian lawyer named Fatou Bensouda. She has served as a government civil servant, legal adviser and international criminal law prosecutor. Jeune Afrique, Africa’s leading magazine, has listed her as the 4th most influential African personality in the Civil Society category . She very strongly believes in the ICC’s power and necessity in the world.
THE ROME STATUTE
The Rome Statute of the ICC is its founding treaty, the documented body of principles according to which the ICC operates whose functions are to describe its jurisdiction, structure and functions. According to it, the ICC has the power of complementarity, meaning it can investigate and prosecute in states whose national court systems have failed. This seems noble, until one realises this means that even in best-case scenarios the court is only a last resort against grand-scale crimes. This does nothing to close the impunity gaps by which most perpetrators of grand-scale crimes can get away scot-free, and thereby leaves the victims dissatisfied .
Due to the statute having been made on the same day as the institution itself was set up – 1st July 2002, it can only prosecute crimes committed on and after that date. This is known as temporal jurisdiction. It would have gained the power of universal jurisdiction – when a state can prosecute for crimes committed outside its borders regardless of the criminal’s relation to that state, or lack thereof – except that the USA fervently opposed this . Thus the court’s powers have been restricted to the following 3 circumstances:
1 – When a criminal is a member of a state party or any state that has otherwise acceded to the court’s jurisdiction,
2 – When the crime was committed on a state party’s territory or that of a state that has accepted its jurisdiction,
3 – When the court receives a referral from the UN Security Council .
Thus, from its inception, the Rome Statute and the court have been heavily restricted in what they can really do. But perhaps this is an advantage considering their track record, outlined below.
ICC and Co The QUACK DOCTOR – FIXING AFRICA:
The ICC works via referral to the UN Security Council, like as happened with the case of Kenyan rape survivor Ursula Cherono. She was brutally attacked in retaliatory attacks after the Kenyan elections. The attack resulted in spinal cord injury, broken legs and a lost uterus due to the many rapes she endured . She hoped the ICC could do what Kenyan officials couldn’t. Cherono wanted justice as we all would, so she joined the many others who have referred their cases to the ICC. But are Africans the only people on the planet that experience such horrifying and traumatising events? What about the rape victims of the US Armed Forces, for there are extensive records to support their cases? Isn’t that one of the greatest crimes against humanity (women) or crime of (men’s) aggression?
This criticism has been echoed by Jean Ping, who is “unimpressed” at the ICC’s overemphasis on war crimes in Africa. He questioned why other places where war crimes are committed, i.e. Colombia, Iraq, Caucasus & Gaza, are being ignored.
The Western world seems to have something of a love/hate relationship with the ICC. Take for example the case of Omar al-Bashir, which Britain publicly backed and supported but was found to have deemed the ICC unhelpful. Furthermore, Britain seemed to think of the court at the time as some kind of token to “free” South Sudan, which immediately brings the ICC’s self-proclaimed independency into serious doubt .
On top of that, the ICC’s referral system gives the impression that the court can only be implemented by nations who volunteer to be part of it. Though many African nations did support it at its inception (and many still do), there was also a hidden agenda. Apart from the funding of pro-ICC NGOs to convince nations to accept it, there was also the amended Cotonou Agreement of 2002 to coerce African nations into ratifying the Rome Statute. This version of the Agreement, revised by the ICC itself, explicitly stated that any ACP (African, Caribbean and Pacific) country that refused to ratify would be denied hundreds of millions of Euros worth of development aid.
As Africans themselves can tell anyone, the ICC has spent all of its 10 years involved in human rights cases in Africa . This occupation takes a good amount of funding and commitment. Why the dedication? Why the hassle? Is it purely to protect the defenceless victims of human impunity against the “uncivilised” acts of vicious dictators? Is Africa an inadequate enforcer of justice, despite African leaders convening to discuss enforcing justice without international aid ? Despite the existence of the African Union and the African Court on Human and People’s Rights (AfCHPR)? Is Africa the only place where dictators abound and human rights are compromised for selfish greed, or is this another Eurocentric plot against African progression?
To this day Africa is somewhat divided on the ICC; government officials and the African Union generally disapprove while the ordinary citizens show somewhat more support. One could interpret this to mean that the corrupt African leaders are attempting to evade justice, but what seems more likely is the ICC is targeting African leadership – regardless of legitimacy. Much of this legitimacy is not Africans’ definition thereof, as there is an acknowledgement in the diaspora that many African politicians and leaders are educated in and “elected” by the West. In the interests of fairness, though, the ICC has successfully convicted one suspect (though after many failed attempts) – the Congolese lost boy Thomas Lubanga Dyilo. He was convicted of using child soldiers under the age of 15 in his militia, and has been sentenced to a total of 14 years of prison. However, his conviction was weak from the beginning, as the trial had been halted due to Moreno-Ocampo’s refusal to disclose some evidence, and Dyilo’s defence team was given a smaller budget than the court, and many documents were too heavily censored to be fully legible.
But why didn’t the AfCHPR execute the conviction of this leader? It was in existence at the time of his prosecution; it was founded in 2004 while Dyilo’s (successful) conviction was in March 2012. Some say it simply doesn’t have the capital to convict such a daunting case. That is why the ICC at its conception was so largely supported by Africans – as with any “developing” nation you do not have to look far to see the injustice in the justice system.
Assuming the lack of funding is the reason for the African Court’s lack of success and support, why is this so? As a continent Africa is and always has been abundant in natural resources and wealth. Could it be because of the collective wealth stolen from Africa during the Atlantic slave trade, colonisation and the historical (and current) scramble for Africa? Let’s look at the case of Jean-Pierre Bemba. When he was being tried by the then Prosecutor Luis Moreno-Ocampo, it was noted that only Bemba sat in the dock and none of the armed pro-government forces of Congo. Why was this?
Besides, are only African victims ratting out their leaders to the international community? We need not look far to find crimes of genocide, crimes against humanity and the crime of aggression in other regions of the globe, as Jean Ping pointed out. Let’s look at some of the war crimes of the US and British forces. The occupation of Iraq involves many illegal operations, based upon international humanitarian law . From the beginning, the fallacies of a quick and tight occupation of Iraq were debunked by reporters and Iraqi media sources. The bombs that were marketed as precise proved to be much less. Iraqi infrastructure, communities, and families were demolished by the inaccurate bombings. Rules of engagement in Iraq became very vague which made every Iraqi an insurgent. Iraqi civilians were killed out of assumptions or fear. The amount of force and firepower against civilians was deliberate overkill considering the relative dearth of military might of their opponents.
There have been leaks of soldiers giving accounts of these attacks on civilians. In one specific case, a US chopper opened fire on a minivan filled with children and family not once, not twice, but thrice. One of the soldiers that saw the aftermath tried to mend the situation by saving a bullet-riddled child from death. The US chopper’s reason for engagement was the illusion of an RPG in the hand of an onlooking civilian. Later investigation showed very vaguely that the RPG was handled by insurgents across the street from the van. But the civilian within the minivan did not have any weapons. Movies like Green Zone tell a more vivid story of the reasons of US and British occupation of Iraq. These stories are a common theme in US history. Are these not crimes against humanity or crimes of aggression?
And even in Africa, why are Africans the only ones being indicted and prosecuted? One could argue that because no war crimes or genocides are being committed by foreigners (at least not ones the ICC is doing anything about for whatever reason) the ICC can’t do anything. Considering the dearth of institutions to oppose foreign encroachments on African development, this once again leaves Africans at the mercy of the world. It’s once again up to “the white man” to undertake his burden to instil civilisation in the world to rescue the other peoples from themselves and their “savage” ways.
Facts do show that the African leaders are usually guilty of the crimes they commit. The international media is littered with accounts of the wrongs of Africa. Mugabe, to say the least, has made quite a name for himself through his own form of reparations in Zimbabwe.
Nevertheless, this isn’t always the case. Laurent Gbagbo, for example, had been transferred to the Hague unusually quickly following allegations against him. In fact the transfer was so speedy it was comparable to an abduction, and was in breach of international procedural code and directly ignored Ivoirian demands for peace. Even Jerry Rawlings, ex-president of Ghana, was angered to the point that he issued a statement on behalf of most Africans demanding that Africa should have the right to prosecute its own criminals and get rid of international intervention. This was all around the time the Court declared Bensouda would be promoted to Chief Prosecutor.
Around the same time Gbagbo was being transferred to The Hague, Alassane Ouattara was left well alone in his hotel in Abidjan. He was Gbagbo’s rival and a former official of the International Monetary Fund , therefore favoured by the Western powers, and was married to Dominique Folloroux-Ouattara, a white Frenchwoman . He issued military force and former rebels from the north, led by Guillaume Soro, to oust Gbagbo and cut off his access to international financing & funds from the cocoa industry.
As if that weren’t enough, the USA, UN and EU imposed sanctions to ruin Côte d’Ivoire’s economy, just to force Gbagbo to step down from leadership. When that didn’t work, French and UN helicopters bombed his place of residence by dropping missiles on the whole city of Abidjan.
Now one must ask: if the ICC turns a blind eye to European and Euro-American aggressions, how can they be trusted to dispense true justice anywhere in the world? In the words of Martin Luther King Jr., injustice anywhere is a threat to justice everywhere, and since some injustices are being ignored there is no hope for justice to prevail.
By Mohammad Baseer