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The hypocrisy of the ICC laid bare: Justice delayed is justice denied


Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is currently a Deputy Vice-Chancellor at Fort Hare University and writes in his personal capacity.

Many South Africans see South Africa’s withdrawal from the International Criminal Court as further evidence of a dysfunctional state and a desperate ANC. Unfortunately many among them paint all in government with the same State Capture brush. The rotting apples have spoilt the whole ANC barrel. There is no return, we are into the abyss.

Is that really so? Is the ICC matter really a straightforward good versus evil tale? The good human rights of the Western nations on the one side versus the evil maladministration and atrocities of the banana Republics on the other?

Let us have a look at what the United Nations itself has to say about the “illustrious body” of global justice. I quote from the recent (2016) United Nations’ Human Development Report:

For human security the rule of law imposes dual accountability on the state. First, the state has an obligation to victims of violence to bring perpetrators to justice. Second, when agents of the state break the law they too must be held to account. Yet it is precisely in war torn societies that the rule of law is absent and difficult to rebuild, leaving the demand for justice unmet. That is why advocates of human rights saw the establishment of the International Criminal Court as one of their major victories. More than a decade later, the assessment is sobering. Prosecutions have been few, slow and difficult, with patchy support and cooperation from member states. There is no clear evidence to suggest that the court’s action has had a deterrent effect—and enhanced protection and empowerment of victims.” (my emphasis).

Let’s take a particular case to put into context exactly what is meant by “slow prosecutions”.

The ICC has recently ruled that former President Laurent Gbagbo from Ivory Coast must remain in detention while his long-running trial continues. Let us backtrack a bit on this one. Why is Gbagbo in detention? What did he do?.

Gbagbo was a key protagonist in the 2010 elections in the Ivory Coast. He was apparently defeated at the polls. I say apparently as the election result was contested. The elections were marred by violence from both parties and claimed the lives of about 3,000 Ivorians. The main contenders in the election were Gbagbo and Alassane Ouattara. (Perhaps I should mention at this point that Ivory Coast is a former French colony referred to as Côte D’Ivoire, and that Gbagbo was not the choice preferred by France. But let’s not make this too complicated, shall we? So the 2010 elections were marred by violent conflict, but a victory for Ouattara was declared. Gbagbo did not accept the election outcome. President Ouattara was inaugurated despite the concerns, and swiftly laid charges against Gbagbo at the ICC.

I may point out that this same narrative has played out in Kenya. After bloody and contested elections the victors decided to lay charges against the opposing parties at the ICC. A very dangerous trend.

The prosecutor at the ICC presented her preliminary case as to why President Gbagbo should be charged. Two of the three judges indicated that she did not have a case while one judge felt she did. Ordinarily, you would think that therefore the case would be thrown out. But not in this case. No, she was told she had a few months to build a better case and again present it to the pre-trial judges. The next time she presented the case after several months, two judges felt there was a case to be answered for, while one felt there was not. Hence Gbagbo was charged.

Gbagbo has been in detention since 2011 and will now remain jailed pending the review ordered by Presiding Judge Piotr Hofma?ski, who on Wednesday 26 July struck down a decision by the trial judges denying the 72-year-old Gbagbo interim release. Among other reasons advanced by the Presiding Judge was the fact that trial judges must take cognisance of the fact that Gbagbo has spent a considerable time already in detention and whether this continues to be reasonable. Detention without a trial outcome for seven years or 364 weeks… that’s what is meant by “slow prosecutions”.

Why is this the case? Could it be that perhaps there exist ulterior motives as to why Gbagbo cannot be allowed to go home and be under house arrest? After all, he did present himself to the court as required; he can’t really be considered a flight risk; and he is ageing. For all these reasons, we must ask why can he not be conditionally released?

Which brings me back to France lurking on the sidelines of this whole sordid mess. Depending on who one talks to, it is asserted that the French had a hand in ensuring that Ouattara “won” in the polls in 2010. The French have long had self-serving interest in Ivory Coast. One only has to look at the amounts of money being made available by the IMF to ensure the prosperity in Ivory Coast, which is the fastest growing economy in the region. Did I mention that the current head of the IMF is from France? France’s role in this country, and others in the region, is very questionable. The question we must ask is: What is France up to there? Even the current security architecture is completely under the control of the French. What is France’s intention, indeed? Is there a grand strategy by this imperial former colonial power? Is it at the expense of current African leaders?

So the wheels of ICC justice turn very slowly. So what? Some argue that it is a principled position to retain membership of the Rome statute. After all, this is a protector of human rights. South Africa’s exit from the ICC would detract from its human rights track record.

I want to state categorically that exiting the ICC does not in any way detract from our South African human rights track record. Anyone who suggests this is disingenuous and/or simply malicious in their intent. In fact, this argument suggests that our commitment to human rights is only assured or guaranteed if we are members of this international body. I strongly disagree with this condescending and indeed patronising notion, which suggests that we cannot uphold our commitment to human rights ourselves. Somehow it is assumed that African states require the Europeans to keep us Africans in line and adhering to human rights practices.

Moreover, membership to the ICC is an individual country’s prerogative and has nothing to do with any other country or region in the world. As such, an argument suggesting that South Africa’s withdrawal will have disastrous consequences or set a bad precedent for other African countries is a moot point. Individual countries must decide their own fate with regards to their continued support and/or membership to the ICC.

The UN professes its innocence but upon closer examination one will find that they too are complicit through their Security Council resolutions in many of these regards. Cases can only be referred to the ICC by governments or by the UN Security Council. It is the UN Security Council which decided to charge Joseph Kony from the Lord’s resistance army in Uganda, and to charge Bashir in Sudan. Remember the US, UK, France, Russia and China have permanent membership of the UN Security Council. All permanent members have veto powers. Yet only France and are signatories to the Rome statute of the ICC.

I have argued before that duality remains intact in the global governance architecture. We see this duality most starkly in the ICC cases and their record of prosecutions. The situations currently under investigation include: Uganda, DRC, Darfur (Sudan), Central African Republic, Kenya, Libya, Côte D’Ivoire, Mali, Central African Republic (all in Africa), oh and also Georgia.

With cases skewed so heavily to African states, it is not coincidence that the ICC prosecutor has recently indicated that she intends to investigate cases against atrocities in Afghanistan, Iraq, Syria and indeed the Palestinian territories. The ICC prosecutor must not take us for fools or, worse, play politics. We all know and understand that because of the global duality the US, Russia, UK and indeed the French, will at best simply veto any such decisions and, at worst, simply ignore the ICC rulings. The UN Security Council will not charge Tony Blair, even after he has admitted that there were never any weapons of mass destruction. Nor will the US government charge George Bush after bombing Iraq back to the stone age. The conflicts in Syria and Libya do not feature on the ICC agenda. Neither do the abuses observed in an ongoing basis of the Palestinians in Gaza and the West Bank regions. The list goes on.

After all, what exactly can the ICC court do? We see its impotence in the recent ruling on the Omar al-Bashir case with South Africa. Even though the ICC wanted to send a clear message to South Africa about their ruling, they could not rule for any punitive action. On the one hand, there were questions of who was going to enforce any punitive action, and on the other, punitive action would have opened up the ICC to further legal engagements on this very delicate matter. A slap on the wrist was all they could muster. Anything more was not possible, as the South African government was not going to take a punishment, and leave it at that.

In a previous article on the ICC, I made bold that justice cannot trump peace. Yet we have witnessed examples of foreign interventions being referred to the ICC, just at a point where warring parties were finding solutions and entering a reconciliatory tone. In these cases, peace was tangible for most people who were tired of war and civil strife. But peace was scuppered as foreign powers through the ICC laid charges against one of the protagonists of war crimes or crimes against humanity. The entire peace deal or process is thus thrown into jeopardy. I wonder why that is the case? The examples are many: we saw it in Uganda with the leader of the Lord’s Resistance Army, with al-Bashir in Sudan and indeed Gbagbo in Ivory Coast.

As I have said before, for us South Africans this motto, justice cannot trump peace. is held dear in our own history. As South Africans we made some key decisions post the defeat of the apartheid system: No Nuremburg trails, no outright revenge seeking. I’m sure not one of the supporters of the ICC will argue when I say that justice was surely needed post 1990. Yet where were the cries for justice then? In 2017 we have apartheid police officers denying knowledge of torture. We opted not to report FW de Klerk’s government to the ICC, choosing to follow a particular path which suited our own set of conditions and concrete realities.

The notion that justice cannot trump peace was not always the will of the people. Our leaders, in the form of Nelson Mandela, Walter Sisulu and Winnie Mandela to mention but a few, provided us with a new way of creating a lasting peace. This was in a volatile context. The brutal assassination of Chris Hani could have seen the entire negotiations process scuppered but alas, leadership was provided and we came through it, and we are a better people today for it.

We fashioned our own destiny in those trying times. But now we are being told from certain quarters that we cannot determine our own destiny with regards to human rights. We must remain signatories to the ICC, when many countries in the world are not. Why is that I ask?

The recent ruling of our high court that the process followed by the government to withdraw from the ICC was indeed unconstitutional was correct. However, the ANC at its recent policy conference reiterated its intention to follow the correct procedure and indeed withdraw from the ICC. I concur with this position.

I say again, in the case against Gbagbo, justice delayed is justice denied. DM


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