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The African case against the ICC

Ivo Vegter is a columnist and the author of Extreme Environment, a book on environmental exaggeration and how it harms emerging economies. He writes on this and many other matters, from the perspective of individual liberty and free markets.

It is usually assumed that the International Criminal Court is a benign, progressive institution, and those it chooses to prosecute have it coming. That may be so, but African leaders have a point when they questions the court’s legitimacy and impartiality.

One of the most basic principles of civilised society is the rule of law. It is also uncontroversial to observe that many serious crimes have been committed during conflicts of the last half-century that have not been, or could not be, adequately prosecuted by national courts of any sort. Some of them really ought to be punishable.

On the face of it, therefore, the establishment of an international court to prosecute individuals for serious crimes including genocide, crimes against humanity and war crimes, seems like a just and progressive idea.

However, the African Union’s recent Extraordinary Summit, called to discuss the International Criminal Court as established by the Rome Statute of 1998, raises important questions.

Superficially, the trigger for the summit was that sitting heads of state, notably those of Kenya (Uhuru Kenyatta) and Sudan (Omar al-Bashir), were being called before the court.

It is not unusual for national law to exempt sitting senior officers of state from prosecution. While this does establish a motive for obtaining power by force, or holding on to it indefinitely, immunity exists by ancient custom for fairly well-established reasons of sovereignty and national dignity.

The Rome Statute defers jurisdiction to national courts, and agrees to institute prosecutions only if national courts are unwilling to act. If such courts fail to act on grounds of statutory immunity granted to heads of state, it is hard to argue that they are unwilling to act or are merely protecting the suspect.

There is some precedent for acting against sitting high officials under international law, but not much. The case against former Liberian president Charles Taylor is one, as are the cases of senior Yugoslav figures under the ad-hoc tribunal established to investigate war crimes in that country. There is also a good argument to be made that many of the types of crime the ICC was established to deal with are exactly those committed by senior figures under the guise of acts of state, or by officials who hold office for life.

However, dismissing customary legal principles involving immunity for sitting heads of state when the alleged crimes involve international law raises concerns about sovereignty, jurisdiction and foreign interventionism. More broadly, it could be argued that the very existence of an international court of this nature conflicts with the UN Charter, which is based on “the principle of equal rights and self-determination of peoples”.

It also cannot have escaped the AU’s notice that all eight of the cases instituted by the ICC since its inception, involving 32 individuals, are in Africa. Not surprisingly, a number of African leaders have over the years expressed concern that the court appears to be biased in its choice of whom to prosecute.

Such a suspicion is well-founded. According to a 2004 critique of the ICC for the Hoover Institute (which, though dated, is very much worth reading in its entirety), ICC supporters have long claimed that it was not being created to prosecute Americans. In 2003, at a French-African summit, the then French president, Jacques Chirac, explicitly threatened the assembled African heads of state with ICC prosecution.

This perception of bias against Africa led to widespread speculation that the AU’s summit would end in a mass withdrawal from the Rome Statute. It didn’t, prudently limiting itself to an appeal not to proceed with action against sitting high office bearers. If the AU had gone further, however, it is not at all clear to me that it would have been wrong.

The simple defence for the ICC, of course, would be to observe that for whatever reason, it happens to be so that the 32 worst offenders in the eight worst cases of the last 15 years were African, but that this extraordinary coincidence does not imply prejudice on its part. It is theoretically possible, but rather tricky to sell, politically.

On a continent that keenly feels the historical harms done to its people by colonialism, Apartheid, slavery, and proxy wars between the Great Powers, it is hard to defend against claims that the ICC, as an institution attached to the UN, is being used as a political tool of neo-imperialist intervention.

To find out whether such systemic prejudice exists, it is necessary to test the ICC against some basic principles of law. First, let’s establish its historical position as a legal entity with extensive powers over individual citizens of member states.

International law traditionally applied to countries, not individuals. It has varied, and sometimes murky, origins in the history and philosophy of law. Generally speaking, countries consent to being subject to international law, and such laws arise either from customary practice, or from explicit treaties signed and ratified by governments.

Some international laws, such as those against torture, slavery, genocide and maritime piracy (hello, Greenpeace!) have risen to a binding level known by the Latin-speaking robed grandees of the law as jus cogens. Perhaps they hide behind such obscure cant because there is no unambiguous definition for which laws have this status, or how this status is attained. It’s one of those “I know jus cogens when I see it” cases.

Importantly, jus cogens law supersedes national law, and merely failing to object is taken to imply consent to jurisdiction on the part of any state.

Other international laws, such as the laws of war, used to be unwritten customary rules, but were codified and formalised by international conventions and treaties, such as the Hague Conventions and the Geneva Conventions.

The first global court to rule on matters of international law was established in 1922. Known as the World Court, or more accurately, the Permanent Court of International Justice, it was associated with the League of Nations, and was at first well-received. It will not come as a surprise that the re-armament of Nazi Germany in the 1930s queered the pitch for this well-intended institution. Indeed, it died an ignominious death, as did the League itself, having failed to prevent World War II because the people who mattered didn’t listen to it. The League and the World Court were replaced by the United Nations and International Court of Justice as we know it today, where well-intended bureaucrats continue to be well-paid by member states to fail to prevent war, genocide and assorted other atrocities nations inflict upon one another.

International criminal law, which applies not to countries, but to individuals, is far less well established in legal history. There have been ad hoc military tribunals in the past, most notably the tribunals that ruled on war crimes and crimes against humanity on the part of Germany (in Nuremberg) and Japan (in Tokyo).

More recently, precedent for the ICC was set by “The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”. However, nobody ever refers to it unless they are paid per word. I’m not, so I’ll say nothing more about it.

The idea for a permanent international court to try individuals originated in the 1970s with one of the American prosecutors at the Nuremberg Trials, Benjamin Ferencz. It was revived by Ray Robinson, the then-president of Trinidad & Tobago in 1989, to deal with international drug trafficking. In 1998, after several years of work by the International Law Commission, the United Nations, and various NGOs, the Rome Statute of the International Criminal Court was adopted. Of the UN member states, 120 voted for it, 21 abstained, and seven – China, Iraq, Israel, Libya, Qatar, the United States and Yemen – voted against it.

To date, major countries that have not signed or ratified it include the United States, China, India Indonesia, Pakistan, and Russia, which are six of the top ten countries by population, representing almost exactly half of the world’s population.

In addition, several African countries have not ratified it. Notably, Sudan has not, but its president is the subject of an indictment, which raises grave questions about the notion of consent to jurisdiction.

If such consent is not to be required, one might fall back on the argument that the ICC is the product of international consensus, against which only a few outlaw nations offer resistance, but can one speak of a consensus to which the governments of more than half the world’s people did not consent?

As an example of the shallow support the ICC enjoys, consider a recent amendment to the Rome Statute that would grant the court the power to act upon the crime of “aggression”. It will come into force if as few as 30 parties to the Rome Statute ratify it by 2017. That represents fewer than a quarter of the countries that even signed up for the ICC.

The crime “aggression” itself is broadly and vaguely defined, and applies to almost any act of war or cross-border violence by one state, its agents, or mercenaries acting on its behalf, against another, irrespective of a declaration of war.

Unsurprisingly, the first countries to agree to this provision aren’t exactly world powers. Liechtenstein led the way, followed by Samoa, Trinidad & Tobago, Luxembourg, Estonia and Botswana. Perhaps because poetic justice demanded it, Germany became the seventh, most recent and only major member country to ratify the “aggression” clause.

There appears to be nothing in the Rome Statute that gives treaty obligations such as common-defence agreements precedence, and the ICC can institute proceedings proprio motu, that is, of its own volition, without the case even being referred to it by an aggrieved member state or the UN Security Council.

Equally unsurprisingly, the US balked at this amendment, citing several reasons. Under its wide definition almost every historical military action by the United States would have qualified for prosecution, as does most military action by other states. The amendment doesn’t explicitly try to limit ICC jurisdiction to only the most egregious cases. There is significant overlap between the existing Security Council and the new ICC in determining when the international community ought to respond against acts of aggression, giving rise to the potential for forum shopping and double jeopardy.

But since consensus does not make one right, nor a lack of consensus make one wrong, let’s test the ICC against more concrete principles of law.

According to the World Justice Project, an international NGO, the rule of law is a system in which the following four universal principles are upheld:

  1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
  2. The laws are clear, publicised, stable and just, are applied evenly, and protect fundamental rights, including the security of persons and property.
  3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
  4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

It is not at all clear, to me at least, that the ICC meets all these requirements. Is international law applied evenly, when the court has the discretion to institute a trial entirely upon its own volition, without any checks and balances? Or, for that matter, when all 32 people indicted to date have been African?

Is the process of enacting and enforcing international law accessible to those whom it affects?

What is fair about provisions in the Rome Statute that explicitly permit double jeopardy – that is, being tried for the same case twice? What passes for protection against such judicial persecution is so heavily qualified as to make it almost meaningless. According to article 20, if the first trial involves a national court that the ICC holds to be “unwilling” to make what it believes to be the correct judgement, or seeks to “protect” the defendant, the ICC can bring a new prosecution of its own. Worse, article 81 explicitly permits an ICC prosecutor to appeal an acquittal, on wide and vague grounds. Who decides this? To whom can one appeal if one feels persecuted?

A final principle that is worth considering is the doctrine of separation of powers. Widely accepted to be the proper organisation of a modern, free and democratic government, this doctrine originated with the 17th century political philosopher John Locke, who observed, “It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage.”

If the ICC performs a judicial function, what is its legislative counterpart? Does this make the UN a “world government”? Who elected its executive? Who can recall its officials if they fail to represent the citizens of member countries? Who exercises independent oversight to prevent abuses of power?

It may be true that the ICC represents a certain ideal of global justice and peace. It may be true that those indicted to date have crimes to answer for. It may even be true that it is, in principle, possible to establish an international judiciary to rule on matters of international law.

But that does not change the fact that there are very serious questions that undermine the legitimacy of the ICC in its present form. Not least of these is its apparently exclusive focus on Africa. On that point, I fear, aggrieved African Union leaders are quite correct.DM


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