KEMBUJE — There has been a lot of focus on the International Criminal Court (ICC). Most of which is unfavorable especially from the African side. While it is true that most of the cases in the court are about Africans, I still believe that the court is not set up to unfairly target Africans and has not been used for that purpose either. I think African people need the ICC because the continent’s leaders have demonstrated by law and practice that they are not willing to be held to account by their own institutions, regionally and nationally or by their citizens. It was just in 2014 in their meeting in Malabo that the AU amended the Protocol on the Statute of African Court of Justice and Human Rights that no sitting head of state or senior government officials will face any proceedings. This is effectively a carte blanche for abuse of rights and culture of impunity on this continent. In fact, this court is yet to be operational because the number of ratifications among other requirements necessary are yet to be met. Meanwhile these hopeless leaders have now threatened to pull out of the ICC just to stand in solidarity with presidents Bashir of Sudan and Kenyatta of Kenya and what would become of most of them if these individuals were caught by the court.
In the rest of the world the ICC’s weakness comes from the fact that the major powers have refused to sign up to it, while the court has no enforcement mechanisms of its own other than to rely on the cooperation of member states which for the most part refuse to give the necessary cooperation. Furthermore unless a state is a signatory to the Rome Statute or a matter is referred to the court but the UN Security council, ICC cannot therefore enter any conflict or territory just like that to carry out investigations much less prosecute. This means that there will be many atrocities under the purview of the court, yet the ICC cannot do anything about them. But even where it can get in, it is evident that it has limited powers and opportunities to conduct high quality, cost effective and efficient investigations and effect any arrest because many states just refuse to comply because there are no effective sanctions binding them to do so. The case of South Africa in refusing to arrest Bashir when he visited the country in 2013 is a case in point.
Thus I think the Rome Statute must be reviewed to relocate the ICC, and by extension empower it more to become a biting bulldog. For this reason, I wish to strongly argue that the best and only home of the ICC is inside the UN as a parallel agency to the UN Security Council, i.e. to enjoy the same status, power and influence as the Security Council. In this position, the ICC becomes an integral part of the international human rights system and incorporates all those UN special procedures, processes and institutions in the fight against genocide, crimes against humanity and war crimes. In this way where the Security Council fails to reach agreement because of power play or politics, cases can be directly sent to the court to ensure that in any case justice is done. For example, the Security Council can never reach agreement on the Israeli occupation and atrocities in Palestine. Because of this, atrocities continue to be perpetrated in that region in the most horrible and shameless manner, yet no one is held to account. Not the Israeli government or the armed Palestinian resistance groups. Thus if the ICC was a parallel agency to the Security Council the matter could have been sent to the court on one hand to determine violations and prosecute perpetrators.
On the other hand, the ICC could initiate an independent investigation and supply the Security Council with enough facts to warrant prosecution or direct action by the Security Council. Apart from all of these, the UN General Assembly, the Security Council itself or member states, as well as NGOs and individuals could present a case to the ICC to carry out its own investigation without having to wait for, or be obstructed by the Security Council or any other power. It will operate just as the Security Council, which does not need to seek anyone’s approval to consider any situation so long as that situation threatens human rights and global peace. But it is clear that the Security Council shall always be biased because it is not a court, rather it is a political institution in which only politics plays out. Thus the Security Council in itself is inadequate to ensure global justice and peace. But in the same light, the ICC on its own, especially as an institution outside of the UN system is also grossly inadequate to ensure justice and an end to war crimes, genocide and crimes against humanity.
By having the Security Council on one hand and the ICC on the other hand stand-alone and separate, the dream of lasting peace and stability and the protection of human rights shall but remain a fleeting illusion. The Security Council shall always remain a battleground for politicians and nations to continue to quarrel over the political nature of a conflict under the influence of national interests. But with the ICC as a UN agency, it will be more emboldened in many respects to protect rights and put a stop to the heinous crimes under its purview. We cannot have a body like the Security Council as the last resort in ensuring the protection of human rights and world peace only on the basis of political decisions by non-legal persons who are under the influence of their national interests. It is ridiculous. This is why the UN Security Council has been grossly ineffective, unfair and a mockery of justice and peace. It has failed to stop atrocities from taking place, but has been used to unleash violence on innocent civilians through the authorization of the use of military force. By bringing the ICC as a parallel and integral part of the UN human rights system, then we ensure that political expediency and national interests do not interfere with the demand for justice and accountability in the world. Thus the inherent weakness of the ICC is found in its construction by law and position. While it appears to be an interstate agency, yet it operates like a massive NGO because none of the state parties are obliged in the real sense to respect their obligations under the Rome Statute.
The other part of the failure of the ICC is their inability or refusal to appreciate the full value of the court. If they did, the Prosecutor would have realized that in addition to prosecution she also has a role to be an activist against the crimes in her jurisdiction. By that I mean she will also play a preventative role in which she would be monitoring situations around the world to issue statements of concern at the minimum in order to avert the commission of a crime, but also to set in motion a process of justice if such crimes are eventually committed. Genocide or war crimes do not erupt all of a sudden in one minute or one month or even in one year. The signs are always there that something is about to happen. So being proactive has a great effect in stalling an attempt towards these crimes.
The usual repetition that the Prosecutor makes that ICC is not a human rights court is weak. Any crime is a violation of a right. Any prosecution of a crime is intended to protect rights and sanction perpetrators. Justice produces and protects rights. Thus in essence the ICC is inherently a human rights court because it seeks to bring about accountability and redress against a violation of a right that comes in the form of genocide or crimes against humanity or war crimes. Thus by process and outcome, it is an accountability institution for the protection of rights. In light of this, I would have advised the prosecutor that in order to help herself personally and professionally, she needs to expand her horizon and become more innovative. To realize that she is not just a tool over there waiting for crimes to be committed and then she acts. That’s basic. But if she wants to make ICC more respectable, responsive and more responsible and become a leading voice in the world that would garner the respect and attention of all, the ICC needs to be seen to be more proactive. Thus the ICC and the Prosecutor must become an activist. They must speak out before crimes occur because there is always a trend. Otherwise the ICC will not be helping much in the cause of accountability and justice. It will not get the support it deserves. It will be bogged down with unending criticism and misunderstanding, which will eventually invalidate and even crush the ICC out of existence.
The ICC can be equated with the position and role of the Attorney General of a country. Thus the ICC is the Attorney General of the World and this is why I argue that it must be connected with the UN Security Council as the last decision-making place for the protection of human rights and world peace including the prevention of war crimes, genocide and crimes against humanity. An attorney general does not keep quiet only to wait for a criminal to cross the line and then get into action. An attorney general also has a preventative role. This makes its job easier as well as generates more support and cooperation from other stakeholders. Thus the ICC must not preclude any violent crime of whatever scale out of its view, especially crimes committed by states and armed groups and between borders. There are trends in these crimes, which must immediately draw the attention of the ICC. Such attention must be translated into, at the minimum by a mere statement of concern. Failure to do that, then the peoples of the world, particularly Africa will find it quite difficult to accept that the ICC is useful and not just against Africa.
Here is a very interesting article by Madi Jobarteh on what the ICC should do in order to become a more respectable court in the eyes of the world, especially in the eyes of many African lawmakers who feel that the ICC is only a neo-imperialist tool.
The argument that merging the ICC with the UN Security Council is an immensely sound one, albeit a very debatable one. Sound, in the sense that (1) the ICC could become a check and balance to the Security Council, (2) the ICC might be able to prosecute more powerful states (not just in Africa) and curb it’s outlook as an African Criminal Court alone, and (3) the ICC might become a more powerful agent of change – preventing human rights abuses. Debatable in the sense that the forces that use (abuse) the UN Security Council might find on their hands another equally powerful tool in meting out their own punishment on who they self-righteously label as “rogue” states.
I had a good read but I feel most of the recommendations have already been catered for in the Rome Statute. Articles 13(c), 15 and 53(1) of the Rome Statute talks more about how the Prosecutor has powers to investigate crimes. What is required is a more proactive prosecutor. The main issue I see is the fact that the Security Council has powers to refer cases but sadly some members have not signed the Rome Statute.
More profound though is the idea that the ICC should be merged with the UN Security council. No? I find it a bit problematic. In that, the influence of “trouble-stirring” nations like the US at the Security council might, without doubt, spill over into the ICC. The ICC might become more lethal in prosecuting nations that the US doesn’t like. Before the ICC can gain some respect in the eyes of African lawmakers, they must show that (1) they can prosecute “rogue” nations like the US, Britain and France. If they can show that Tony Blair and George W. Bush can be brought before the court then they will become a force to reckon with. As of now, they are more partisan than anything. Yes, African demagogues must be brought to heel but so should European and American demagogues.
Madi, makes an important point – that African leaders need to be brought before the law. Africans need respectable institutions that will enable our lawmakers to bring leaders before the law. Look at Blaise Campoare – whatever the hell his name is – chilling in the Ivory Coast? Who is going to bring such a a tyrant to book?
But asking for strong institutions that are accountable to the African people is something that has been missing for centuries. It’s needs to be built, nurtured and cultivated. But, does that mean the solution is the ICC. I am amply tired of foreign institutions. Sure, argue that in the mean time they are good. I will stress that they are evil in the long term. They might bring Yaya Jammeh or Blaise or the president of Sudan to book, but they will infringe, in due time, on our sovereignty. They always have.
The biggest war criminals walking the planet today are Bush, Blair and Obama. I haven’t see a single ICC document on them. Why? They are biased!
I don’t believe any solution lies in the ICC or Condemn-Africans-Only Criminal Court. If African people want to hold corrupt leaders accountable, they should form their own African Court that has only African countries and affiliates like Haiti as members. They cannot expect countries outside of these to be objective. Other countries only want to cause chaos within Africa. Until I see that international organizations treat Africans fairly and prosecute others with due verve, I remain very skeptical of the ICC and the UN.
Aisha, it is common for Africans to condemn everything outside Africa, and indeed a lot of injustices have been meted out to Africa and her people by particularly the West. But our failure ever since has been our inability to protect ourselves by our own ideas, tools and institutions. We can go on a cycle of condemnations as we highlight at every moment a clear incident of Western interference or unfairness towards us. But this does not solve our problem or change anything positively for us. We got to realize that the history of the world is a history of conquests. We either protect ourselves or someone will enslave us again. And there is no magic to this. We got to do it. China is standing out strong today because they empowered themselves to weed out Western domination. But of course that is not going to stop Western attempts to dominate China always. But likewise China is also seeking to dominate the West and Africa as well. So on the surface your point is plausible, but you got to realize that nothing stops African leaders from building those institutions you mentioned. But have they not refused to do so? In my article I mentioned that until now they have refused to make the African Court of Justice functional. They went further to change the laws to protect themselves. In each and every African country our leaders have failed to empower the masses. They continuously seek ways and means to protect themselves even as they are corrupt and oppressive. We cannot blame anyone for that. And why cannot African people like you and me rise up and bulldoze these hopeless leaders and create a new society. Therefore in the absence of all these, we will have little choice but be affected , mostly negatively by foreign ideas and institutions. We remain unfairly treated in every global center not because we are Africans, but because this is the nature of human history and global politics. Look at the issues between even Western countries and you will find the power play in there. What motivation or justification and reason would the West or China have to support Africa to be independent or strong? The more they can dominate us the better for them. Africans got to realize that, and stop complaining about unfair global systems. They will never be fair until and unless Africans empower themselves and force their way in to take their rightful seat. Period. So we must stop condemning these global institutions which we have been doing for the past 100 years and more, yet we continuously fail to build our own institutions to serve our own interests. Che Guevara said each and every institutions goes to serve the interests of the founders. Let’s always remember that.
Solomon Azumah-Gomez et al…The shortcomings you highlighted are the very reasons for the merger. As I implied in the article the ICC cannot investigate Bush or Blair because their countries are not signatories except if the the security council refers the matter to ICC. But the security council will not do so because US has veto power. In the circumstances the only and best way to circumvent that obstacle is to make the ICC a UN agency at the same level with the security council. I just didn’t say that as opposed to the security council the ICC will not be subject to veto power. In that case any war situation like Iraq the ICC can independently go in to investigate. I do not perceive this solution to be foolproof. And we can look at all the shortcomings of the international system and cast doubt on this proposal. But we could also be optimistic and determined that indeed we can create a workable and effective system for the benefit of all. Otherwise I think the ICC may go into oblivion sooner than later when it could be really made into a public good.
Yet to read the article though…. and proposal sounds fascinating but given the fact that US, a permanent member has not not ratified the Rome Statute, I wonnder what ICC will end up becoming..
[…] — I had argued in the first part of this series that until the ICC is transformed into a UN agency enjoying the same status and power as the UN […]