Merge The ICC with The UN Security Council Part 2

KEMBUJE — 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 Security Council, the court shall remain incapable of stopping acts of genocide, war crimes and crimes against humanity for good. The court will not be able to bring perpetrators of heinous crimes to book. Consequently, the world will find it difficult to ensure global peace and justice which are necessary to ensure stability and safety for all.

We must bear in mind that the very reason for the creation of the United Nations was because of crimes against humanity, war crimes and genocide and the atrocious abuse of rights during the Second World War. The entire United Nations Charter is aimed at preventing these crimes from ever occurring again and this is the reason why the UN Security Council was set up as the main instrument of the UN to ensure global peace and security.

But given that the Security Council is a mechanism that addresses only inter-state activities, what then happens when within a state a ruler or warlord or some other actor engages in committing heinous crimes? So far the UN has been constrained to deal with this phenomenon which is why occasionally it refers cases to the ICC, or sets up tribunals. For over a decade now it has been inevitably toying with a new idea, Responsibility to Protect (RtoP). This is an indication that there is something missing. That is, the ICC must be made a UN agency at part of the Security Council in order that it can address both inter-state and intra-state crimes focusing on actions of individual human beings regardless of their positions in the state or society.

Fault Lines in International Legal and Political Systems

I am of the view that there is a major fault line in international legal and political systems for which unfortunately the perpetuation of wars and heinous crimes continues some 70 years after the end of WWII. It was this war, i.e. the crimes committed during the crisis that prompted the creation of the United Nations. While I think the idea of a United Nations was good, the structure and foundation of the global body are wrongly constructed. Hence its inherent weakness and inability to ensure global peace for the most part. Let us look at the facts.

The United Nations was formed in 1945 based on the United Nations Charter. It is an inter-state organization that seeks to promote world peace and security. For the task of ensuring that nations do not go to war again but to maintain peaceful relationships. Where there are disputes they are amicably solved. The UN set up the Security Council as a mechanism under Chapter V of its charter to act on behalf of members and it can propose either peaceful means or force where necessary to settle disputes between the members or to restrain a member. Thus the UN Security Council is an inter-state agency to address issues among states. Thus it is not an agency to address crimes committed by individuals or between individuals.

When one looks at the trend of conflicts in the world since 1945, one can notice a declining incidence of violence or war between states. A large part of this achievement must be credited to the existence of the United Nations. However even though nations are going to war against each other less and less yet the incidence of war remains quite prevalent around the world. What the world witnesses therefore is more intra-state conflicts largely because of the presence of repressive regimes which has generated resistance in various forms.

The emergence of such corrupt and repressive regimes is also directly linked to, and a consequence of the unfair global political and economic systems. It is evident that the more powerful countries mainly in the West dominate the structures and positions in these global institutions and processes. Among these include the UN itself, but also IMF, World Bank, WTO, Commonwealth, La Francophonie as well as WCO among others. These institutions which are dominated by the West stem from the imbalances created by the Atlantic Slave Trade and colonialism. It is aggravated by the Cold War as an offshoot of the 2^nd World War. This is why the five permanent members of the UN are the US, UK, France, China and Russia.

For a long time, it was common practice for poor and developing countries to be used as pawns by the more powerful western nations for their political and economic interests. In this way western governments inevitably propped up and supported tyrannical regimes and corrupt dictators. At the same time they derailed and overthrew democratic leaders and regimes and even financed armed rebel groups and coups in many African, Asian and South American countries.

Meanwhile many Western-backed institutions such as the IMF and World Bank continue to misdirect and impose economic policies and programs that only produce more poverty, inequality and general under-development in these regions. The onslaught by western multinational companies backed by their governments and interstate institutions went into these regions to plunder natural and mineral resources to the detriment of citizens and the environment of the hosts.

Thus the very nature of global political and economic institutions coupled with the way and manner Western governments drive their foreign policy only serve to benefit dictatorships in the developing world more than their citizens. Consequently the incidence of coups, civil disobedience, illegal migration, civil wars and terrorism have become intolerably prevalent in the developing world. In these crisis, the crime of rape, torture, war crimes, extra-judicial executions, mass killings, genocide and enforced disappearances as well as looting and destruction of historical artifacts, destruction of crops and water sources continue to rise. These crimes are committed by both state and non-state actors within a specific border but also between states as in the case of international terrorism.

Responsibility to Protect

From the nature of these intra-state crimes in which a sitting government is either the culprit or unable to protect its citizens from severe atrocities by other internal forces, the UN Security Council cannot do much about that because the actors are not state parties. Thus even when a state party for example engages in ethnic cleansing or genocide or mass killings, the UN still finds it difficult to intervene because of the barrier posed by the sanctity of national sovereignty and territorial integrity.

For this reason, the UN itself has since early 2000 conceived the idea of Responsibility to Protect. This is a concept that holds that the world cannot sit by to watch a particular ruler or regime, warlord or rebel army engage in heinous crimes within a country, yet no one can intervene because that would mean violating national sovereignty and territorial integrity. Thus the concept of Responsibility to Protect holds that the international community bears the obligation to stop the perpetration of heinous crimes and protect civilians within a particular country. This is based on the premise that either that state is incapable of protecting its citizens or in fact it is the state that is in fact committing the heinous crimes.

What this clearly shows is that the UN Security Council and the UN itself were not primarily set up to deal with this kinds of scenario, hence their incapacity to handle these matters. These scenarios were not conceived at the time, yet it appears now that most of the crimes and wars taking place are within these kinds of scenarios. What should be done?

Inadequacy of Current International Court Systems

If one understands the rationale and the nature of the ICC, it can be seen that it is indeed set up to address this very vacuum in the international legal and political system, i.e. address crimes that are committed by individuals. That notwithstanding, it is certain that the crimes under the purview of the ICC are the very reason for the creation of the UN itself. To prove this point, one needs to look into the Preamble of the Universal Declaration of Human Rights (UDHR) of 1948:

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people..”

The ‘barbarous acts which have outraged the conscience of mankind’ refers primarily to the Holocaust in which the Nazi regime of Hitler embarked on a campaign of genocide, ethnic cleansing, war crimes and crimes against humanity. While this was a regime with a clear policy of genocide, yet the specific crimes were executed by specific individuals in whatever capacity they were. Imagine if there were no war crimes tribunal in Nuremburg set up immediately after the war to try former Nazi officers, how could the UN deal with these criminals? These were individuals working for a government and carrying out orders. How could you hold them to account especially when the regime was dismantled? Since it is not a court to investigate, prosecute and bring perpetrators to justice what then could the UN Security Council do in this situation?

There is the UN’s International Court of Justice. But this court is certainly not responsible to handle cases of individual persons as it is a court to arbitrate between state parties, just as the Security Council itself also only focuses on issues between state parties. This means therefore the international system is grossly inadequate to address violations and atrocities committed by individuals within and between states, whether acting on official or unofficial capacity. Aware of this gap and with a view to solving it, we have seen how on many occasions the UN created ad-hoc or permanent mechanisms to bring about individual accountability. This is the reason why we have international tribunals for specific countries and conflicts. These are the International Criminal Tribunal for the former Yugoslavia (ICTY), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Court for Sierra Leone (SCSL) and the Bosnia and Herzegovina War Crimes Chamber.

Apart from the ICC, all of these are specific to a particular incident, time and region. But both the ICC and these various mechanisms have proved largely inadequate to curtail the rising incidence of war crimes, genocide and crimes against humanity for obvious reasons. The country-specific and time-bound tribunals have a specific area of responsibility hence they cannot deal with crimes in other regions or countries. The only solution would be to continuously create a new court anytime anywhere, where such heinous crimes occur.

Is this sustainable? Thus so far it is only the ICC which is permanent and global. But the ICC is also constrained by many factors, not least among them is that a state has to be a signatory to it in the first place. The ICC can only engage in a case when the UN Security Council refers a matter to them. Or when a non-signatory government invites them to investigate matters in that government’s country. Aside from all of these, the ICC is also beset by the fact that it relies on the goodwill and cooperation of states to give effect to its decisions such as arrest of suspects among others. Thus inherently the ICC is weak.

Make the ICC a UN Agency

It is in light of this inherent weakness that I am making the case that the ICC should be elevated to become a UN agency. By making it a UN agency at the same level with the UN Security Council, nations cannot therefore shun it on the basis that they are not signatories. Each and every member of the UN family will be obliged to cooperate and respond to the ICC as required by law. The ICC will not have to wait for any government to invite it to investigate crimes in that country.

The concept of Responsibility to Protect will become even stronger because there is already a UN agency to investigate individual acts of violence in any country and bring perpetrators to justice. This means such an ICC will strengthen the entire UN human rights system such as the treaty bodies, the universal periodic review and special procedures. The UN Security Council itself will have its job made easier and better because it has a counterpart judicial system on whose decisions it can determine to use force or employ peaceful solutions. In this way, there will emerge a new international culture of justice and fair play that can only enhance global peace and security. Thus the end result of an ICC becoming a UN agency ensures accountability everywhere regardless of who is involved.

The West and ICC – A Case for ICC to become a UN Agency

There has been lot of criticism from Africa particularly against the ICC that not only is it unfairly targeting Africa, but that it turns a blind eye to Tony Blair and George Bush and their lieutenants for the war crimes committed in Iraq and Afghanistan. In fact Britain and the US never got a UN Security Council authorization to invade Iraq in order to remove another dictator, Saddam Hussain who for long committed genocide and crimes against humanity in his country. The Iraq War Report prepared by the Chilcot Commission following years of enquiry was released on July 6 which unequivocally noted in its introduction that:

“The consequences of the invasion and of the conflict within Iraq which followed are still being felt in Iraq and the wider Middle East, as well as in the UK. It left families bereaved and many individuals wounded, mentally as well as physically. After harsh deprivation under Saddam Hussein’s regime, the Iraqi people suffered further years of violence.”

In his public statement in releasing the report, Lord Chilcot gave a succinct narration of the sequence of events and engagements between No. 10 and the White House, as well as the various  meetings and resolutions  of the UN  Security Council leading to the unilateral decision by the US and UK governments to invade Iraq in March 2003. In his conclusion, Chilcot said:

“In 2003, for the first time since the Second World War, the United Kingdom took part in an invasion and full-scale occupation of a sovereign State. That was a decision of the utmost gravity. Saddam Hussein was undoubtedly a brutal dictator who had attacked Iraq’s neighbors, repressed and killed many of his own people, and was in violation of obligations imposed by the UN Security Council.”

He went further to lay out the cost of that war:

“More than 200 British citizens died as a result of the conflict in Iraq… The invasion and subsequent instability in Iraq had, by July 2009, also resulted in the deaths of at least one hundred and fifty thousand Iraqis – and probably many more – most of them civilians. More than a million people were displaced. The people of Iraq have suffered greatly.”

Here is the reason why the ICC must indict Pres. George Bush and Prime Minister Tony Blair. But the ICC cannot do that because while the US is not a signatory to the Rome Statute, and UK is, but the UK is a powerful western nation that the ICC as presently constituted cannot undertake the burden to try him. Secondly, and more significantly the UN Security Council will not be able to refer the case to the ICC because the US and UK are permanent members with veto powers. This is the point therefore that renders flat any accusation of ICC for being sympathetic to the West. But it is this same point that also exposes the glaring weakness of the global legal and political system and for which the ICC is rendered useless unless it is made part of the UN System.

With the ICC being a part of the UN system no war crime or perpetrator can be out of limits for the ICC. But for this to become reality it will require by necessity that there are sufficient amendments to the UN Charter, the restructuring of the Security Council as well as a review of the Rome Statute among other legal and structural changes to the global system. The Chief Prosecutor of the ICC is fond of saying that her court is not a human rights court. But this is a farce and it lays bare the weakness of the Rome Statute as well. Every criminal act is a violation of a human right and human dignity even if there are varying degrees of violations or atrocities. Burglary and murder cannot be treated the same. If countries lack internal mechanisms to protect rights or where these mechanisms exists, yet leaders and governments will not respect them, then it is just reasonable to assume that the ICC has a legitimate obligation to protect rights and dignity in those instances especially when they are heinous and widespread and involving at least a dozen people. The necessary legal framework can work these issues out.

Conclusion

The global system is weak. The failure to review the international legal and political system is costing the world its very existence. The incidence of illegal migration, terrorism, environmental damage by multinational companies, coups and civil strife around the world among many other forms of crimes are consequences of either the absence or breakdown of internal justice mechanisms or both.

Why did Somalia collapse? Why do we have Boko Haram or Niger Delta rebels? Why did we have the Arab Spring? How do we have dictators? Why are thousands of African youths perishing in the Sahara and the Mediterranean to cross over to Europe? Why did we have RUF or LRA? Why did we have ISIS and Al Qaeda? The questions can go on and on. The simple answer to these questions is the fact that there are leaders and governments and companies that oppress, exclude, and exploit citizens hence the backlash. In all these states, there are either no accountability mechanisms in place or they are being trampled upon by state and non-state actors to the detriment of the rights, dignity and lives of innocent citizens.

Therefore, there is a need for sober reflection, away from the fancy and flare of high sounding jargons and cozy offices of flamboyant politicians and lawyers who tell us this or that is not possible or this is against international law. Remake international law then to suit our needs. At this level of such human advancement, there is no justification why a young man will tie explosives around his body in order to explode and kill himself and fellow human beings in order to make a point. The conditions, albeit unjustifiable for terrorism can be weeded out by the creation of a legal and political system that places accountability in the midst of the state and society. Many countries in Africa would have avoided coup d’états and civil wars if there was a UN-based ICC to intervene at the right time. It may be long overdue but it is never late to start doing the right thing.