The ICC and the Cost of Imbalanced Justice

This past week, the foreign ministers of African Union (AU) member countries of the International Criminal Court (ICC) publicly announced that they had decided to recommend withdrawal en masse from the court. Thirty-four of the African Union’s 54 member nations subscribe to the ICC under the provisions of the Rome Statute, the court’s founding charter.

If leaders of the African States Parties to the Rome Statute all decide to accept the joint recommendation of their foreign ministers, it will be a major blow to the ICC, since their nations form the single largest regional group of countries subject to the jurisdiction of the court, followed by Latin America and the Caribbean (27 States Parties), Western Europe and Others (25), and the Asian Group (19). Indeed, the Rome Statute does make provisions for withdrawal from the court’s jurisdiction. Article 27 provides that once a country formally notifies the United Nations of its decision to pull out, effective withdrawal from the ICC will take place one year afterward, but will have no effect whatsoever on prosecution that has already been initiated. Just since November of last year, three States Parties have notified the UN of their decision to rescind their adherence to the ICC.

While the shadow of a break-up in the International Criminal Court should be seen clearly as a huge step backward for international justice, human rights, world peace and the rule of law, the case being made by the African nations is not without very apparent merit. Their most salient argument is that the Rome Statute and the ICC are being used as a tool of “Western imperialism”, in that only the leaders of the smaller, weaker states in the world are being prosecuted and punished by the court. The war crimes and crimes against humanity committed by leaders of the wealthier, more powerful states are simply ignored.

While to some who are unfamiliar with how the ICC is supposed to operate or with the extent to which some of the world’s most powerful nations have, in recent years, violated international law and committed acts that could easily be construed as crimes against humanity, the Africans’ position may sound overly defensive or like political sour grapes. But the fact is that it is a pretty fair and balanced view of precisely what’s happening. It is an undeniable perception that, to date, the ICC has focused disproportionately on the African continent. So far, in the 14 years since the court began functioning, nine out of ten of the cases that it has investigated were set in African nations.

Threats to leave the ICC aren’t new. Perhaps the clearest example to cite is that of charges brought against Sudanese President Omar al-Bashir. Back in 2009, several African states—Djibouti, Comoros and Senegal—called on all African States Parties to rescind the Rome Statute en masse in protest against the ICC’s indictment of the Sudanese leader.

In a first pre-trial stage of proceedings the tribunal made up of judges from Ghana, Latvia and Brazil accepted indictment of al-Bashir on five charges of crimes against humanity and two of war crimes. But two of the three judges rejected the genocide charge on the grounds of “insufficient evidence.” The dissenting third judge, however, opined that there were indeed “reasonable grounds” on which to indict the president for the crime of genocide. But it wasn’t until mid-2010 that the ICC finally gathered sufficient evidence to issue a new warrant for al-Bashir’s arrest that included three counts of genocide.Al-Bashir’s was a complicated case, since he was the first sitting head of state ever to be indicted. Then-Chief Prosecutor Luis Moreno Ocampo accused the Sudanese president of individual responsibility for genocide, crimes against humanity and war crimes committed in Darfur in 2003. More specifically, the prosecution alleged that al-Bashir had “masterminded and implemented” a plan to exterminate three ethnic groups, the Fur, Masalit and Zaghawa tribes, through a cruel campaign of deportation, rape and murder. The arrest warrant issued as a result of Moreno Ocampo’s charges was backed up not only by the court, but also by NATO, the Genocide Intervention Network and Amnesty International.

A singular aspect of the al-Bashir case, however, was that Sudan was not a State Party to the Rome Statute. Rather, the case was referred to the ICC by means of a UN Security Council resolution. It was not, then, membership in the court that made a case against al-Bashir viable, but rather, that Security Council members had empowered the court to investigate the president of a UN member nation.

This power wielded by the elite Security Council and delegated to the ICC, in the eyes of many African and other less wealthy nations, smacks of hypocrisy, since the most potent permanent members of the all-powerful, veto-holding council do not themselves recognize the jurisdiction of the ICC as it applies to them. Amnesty International has called on al-Bashir to turn himself in and requested that, failing this, the Sudanese government should do so, but the human rights organization has been scoffed at by both. Not even an attempt by the ICC prosecutor to “isolate” al-Bashir by releasing information on wealth he has accumulated (estimated at some 9 billion dollars), with the idea of changing his image from that of a national hero to that of a corrupt autocrat, was capable of denting general apathy about handing him over to the court.

Worse still, a number of nations that are themselves States Parties to the Rome Statute have blithely ignored statute-backed demands that they arrest the Sudanese president and bind him over to the ICC when he has visited their territories. Among these are permanent Security Council member China, as well as Nigeria, Saudi Arabia, the United Arab Emirates, Egypt, Ethiopia, Kenya and Qatar.  And both the powerful Arab League and the African Union have expressed condemnation over the arrest warrant, suggesting that it infringes on Sudanese sovereignty, due to the fact that al-Bashir is a governing leader. Russia, another powerful permanent Security Council member, called the warrant “a dangerous precedent in international relations,” claiming that it might “hamper peace efforts in Sudan.”

But when it comes to defending the indefensible, the clearest argument in al-Bashir’s defense has been that of equality before the law. As the Sudanese president himself said in his own defense, like the United States, China and Russia, Sudan is not a party to the Rome Statute and thus should be free to refuse to abide by its provisions. He added that his case was “a political issue and (one of) double standards, because there are obvious crimes like Palestine, Iraq and Afghanistan, but [they] did not find their way to the international criminal court.”

While such a statement is hard for any human rights and rule of law activist to swallow coming from someone charged with the heinous crimes for which al-Bashir has been indicted, it goes directly to the heart of the life-threatening weaknesses from which the ICC suffers. As I posit in my book, War: A Crime Against Humanity, in order for international law of any kind to be effective, it must be universally accepted and enforced, and this is not currently the case in terms of the authority of the ICC. The greatest threat to the authority of the Court is posed by the most powerful and, certainly, the most militarized nation on earth: namely, the United States of America. The United States is in the unique position of having taken part in the organization of the ICC and having signed its Charter in 2002, but of having then (under the administration of George W. Bush) refused to ratify it. The US is not a member of the ICC, and has advised the UN that it does not plan to be at any time in the future. And this last is the case too of other world and regional powers such as China, Russia, India, Iran and Israel.

The ICC was set up as a sort of “last resort” tribunal. Its job is only to act when nations themselves fail to properly dispense justice. It is dismaying beyond words that major world powers refuse to adhere to the International Criminal Court because—whatever other excuses they may invent—this means that their actions are such that they fear their own leaders could eventually end up in the defendant’s dock as a result of crimes against humanity or wars of aggression. This is even more distressing in the case of the United States, which, until recent decades, was seen as the standard-bearer for the rule of law. And clearly, if the United States can simply refuse to accept the ICC’s authority, it is hard to see how the court’s actions against other nations’ leaders will ever carry any real clout, other than serving as a figurehead for global justice.

Were Washington to change its policy in this regard, ratify the Rome Statute and submit to its future decisions, such a gesture would go a long way toward permitting the court to actively prosecute crimes against humanity, war crimes and crimes of aggression worldwide. But if this kind of support for international justice couldn’t be mustered during the eight years of the Barrack Obama administration, there would seem to be not even the slightest glimmer of hope of a change of heart and mindset under the administration that took office earlier this month.

As it stands today, the contempt shown for the ICC by the majority of the permanent members of the UN Security Council and the increasing refusal of the leaders of other countries to submit to a court that leading nations take as a joke, or at least as a forum for justice that only applies to the world’s poorer nations, is tying the ICC’s hands to an ever-greater degree. And this latest joint move by the foreign ministers of over 30 African nations might well foreshadow the disintegration of the ICC as a viable alternative to rampant worldwide inhumanity and injustice.