Yes, the ICC has problems, but the way forward is to strengthen, not withdraw from it

Ten years ago around this time I was writing a paper for my law of war class about the likely effectiveness of the International Criminal Court. I was a bit premature given that the Rome Statute, the treaty creating the court had been agreed 5 years previously and had only entered into force the previous year. Unfortunately, that document has long ago disappeared but I do wonder what my less cynical than now university self thought and predicted back then.

I am thinking of this because this week sees the meeting of African Union leaders. On the cards is a resolution to withdraw en masse from the ICC. During a vote yesterday 53 out of 54 member states passed the resolution with only Botswana opposing it. It is highly likely that the AU will endorse the resolution today.

I am far from being a uncritical fan of the institution. However, I find this development truly troubling for what it represents and what it will mean for human rights, peace and security, not just on the continent but internationally.

The International Criminal Court has lots of detractors. It is costly and inefficient. Critics ask whether a handful of headline or token prosecutions are really the best use of international will and human, financial and other resources. Looking at its sister court, the International Criminal Tribunal for Rwanda (ICTR), you do wonder where the Rwandan justice system would be if the resources spent on the ICTR had been invested there instead. Perhaps it would not have held thousands in prison for years without charge in appalling conditions for crimes committed during the period of the genocide.

International justice for the sake of it is meaningless. All it does is add to the self-importance and congratulation of the ‘international community’ and the ego of international lawyers. For human rights and humanitarian law to be truly meaningful, it must have tangible and positive benefit on the lives of people affected by abuses and violations.

Of course, there is no one thing that all survivors want and prioritise. For some it is healthcare. This includes psychosocial care. This seldom has any resources devoted to it but is, for most survivors, a pressing need. For others it is a form of reparation that redresses socio-economic imbalances and improves their material situations. Some survivors wish to see their perpetrator punished. Others  simply want to know what happened to their friends and family.

International justice systems deal purely in the realm of law. It is true that many people in the aftermath of mass atrocity want justice in a narrow legalistic sense i.e. prosecution followed by conviction followed by a long time in prison for crimes committed. However, this does not automatically mean justice that is remote and which comes to bear on only a few individuals, usually those in charge. The ICC and other institutions like it do not necessarily touch the lives of most of the population living in conflict-affected countries. The people who killed and tortured them, their families and their friends often continue to live alongside them in total impunity.

When international justice does have impact, it is not necessarily a positive one. Often witnesses and victims to the Court are seen just in terms of their importance to the case, not as human beings in their own right. There is inadequate support and follow up offered to those who testify. Many are re-traumatised by the experience.

The effects on peace and security of indictments and arrest warrants made by the court, such as that for President Al-Bashir, also remain to be seen. The Special Court for Sierra Leone’s indictment of Charles Taylor, announced just before peace negotiations were about to take place, led to a near breakdown of the peace process. The Liberian people I spoke with while I worked there did not have a positive view of the Special Court. Many of them blamed it for what happened and the countless numbers of people died as a result.

Now, of course there is a tension between peace and justice in these situations. The Special Court, worried that an amnesty would be part of the deal, took pre-emptive action to make sure peace would not be prioritised over justice. Defendants of their approach argue that the pursuit of international justice has preventative impact and ensures people in the future will not commit genocide, crimes against humanity and war crimes.

However, where is the evidence that shows international prosecutions do, in fact, prevent atrocity? In the domestic sphere, it is the likelihood of getting caught that deters, not the severity of the punishment or the existence of mechanisms. We should not make automatic analogies as the systems work in very different ways. However, we should also not uncritically accept the assumptions that lay behind the high-faluting rhetoric of many that the International Criminal Court will prevent and ensure that this never again happens.

This is not to say that it does not have and will not have a deterrent effect. Those in power have pointed to a complete lack of action taken on the part of others to feel comfortable with committing atrocities. Hitler, when contemplating the ‘death mercilessly and without compassion, men, women and children of Polish derivation and language’, pointed to inaction around the Armenian genocide: ‘Who, after all, speaks today of the annihilation of the Armenians?

We may live to see a day where international justice does, in fact, have this deterrent effect. At the moment this seems to be more of a hope rather than based in reality. In any case it seems a too utilitarian justification for me to accept that some people will die in the short term so that others may not in the future.

Then there are the selectivity and the anti-African arguments. On the face of it, the facts do not look good. Uganda, DRC, Sudan, Central African Republic, Kenya, Libya, Cote d’Ivoire and Mali make up the roll call of situations before the ICC. The Court has tried to diversify, especially in recent times, but it takes time to go from investigation to prosecution to conviction. The continent of Africa continues to be over-represented in the countries on which the ICC has brought its attention to bear.

This was a criticism of the institution from almost its first day of operations and it was bound to happen. For the Court to have jurisdiction, the country needs to have signed up to the Rome Statute or be referred by the Security Council and its own courts have to be unable or unwilling to take action themselves.

There are obvious biases in terms of which countries the Security Council will and will not refer (hence the exclusion of Israel from Court scrutiny despite the many violations of international humanitarian law that continue to take place). It has only referred the situations in Libya and Darfur in Sudan to the Court to date.

There is also the list of countries that have signed up to be under ICC jurisdiction. China, India and Israel and the United States of America are among the many who have not, specifically out of fear that there will be prosecutions against their citizens.

That the Court has made a serious strategic mistake on where it has chosen to focus is beyond question. This has played very easily into the hands of those who are against the Court to use this to ensure they and their friends escape with impunity.

These arguments also go across very nicely to the gallery. It is very tempting to get behind this kind of thinking. After all, there are very real and continuing histories and practices of colonialism and imperialism in all our countries.

However, threats need to be seen as emanating from within as well as from external forces.  Of course women, those seen as ‘sexual deviants’ and other oppressed and marginalised people within communities, groups and nations are well versed in these dilemmas. It is too simplistic to only defend your community or country or continent from outsiders. Such a reaction is fundamentally dangerous and supports the position of those in power. We need an activism of human rights that is nuanced enough to be able to see internal and external threats superimposed upon each other and which mobilises against them both.

Arguments of institutions or ideas being ‘anti-African’ or ‘against our culture and tradition’ are the refuge of authoritarians and despots who pick and choose which parts of human rights serve them. This is not to say that there are no differences between different countries and traditions. Of course there are. However, culture is not static. What is seen as such is frequently the fossilised imagination of a way of life that never truly existed in the past. The ‘traditions’ that people cling to can be only a few decades old. Often, our ancestors were much more radical and progressive than we credit.

Human rights are not European values. It is fundamentally racist to say that only white people have or ‘created’ rights. The story of human rights, despite the dominant narrative, did not start in 1948 with the Universal Declaration of Human Rights, but has had long resonances in all our cultures and traditions. It is one that belongs to us all.

In the case of the ICC, twenty of the countries that created the court were African. Four African states, Uganda, DRC, Central African Republic and Mali, have referred situations occurring on the territories of their own countries to the Court. Almost a third of the ICC’s judges (5 out of 18) are from African states. Fatou Bensouda, its chief prosecutor, is from Gambia.

She sayswhat offends me the most when I hear criticisms about this so-called African bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes.’

Over 130 civil society organisations across Africa have urged AU Ministers to affirm their support for the ICC sayingWe believe any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity as reflected in article 4 of the AU’s Constitutive Act.’

I spent years living in China and often wondered as to the reasons why Tibet is an international cause celebre but those outside China have not even heard the word ‘Xinjiang’ let alone know of what is happening there.  A few years ago, a Sri Lankan colleague bitterly complained to me of the international attention and activism around Palestine but that nobody cared about the horrendous atrocities that were taking place in his country.  It is true. He was right. Everyone marched for Gaza. Who marched for the Tamils?

However, just because we should take action on Western Sahara (also under occupation for decades) does not mean we should not continue to agitate for Palestine. In the case of the ICC, just because things that happen elsewhere are not investigated does not mean that the matters at hand should not be. We can and must rail against selective application or campaigning but that does not mean that those charged by the Court do not have a case to answer.

As the civil society groups argue, ‘undercutting justice for crimes where it is possible because justice is not yet possible in all situations risks emboldening those who might commit grave crimes. Working to expand, rather than contract, the membership of the ICC is a key step in widening access to justice and sending the message that no one is above the law.

Over the past 60 years, the international human rights movement has managed to fundamentally change the way that acts that were once concerned automatic tools in the arsenal of war and power have been seen. Rape and other forms of sexual violence in conflict and torture, although they still continue at far too high levels, are now seen not only as fundamentally and utterly wrong. The prohibition against torture is a jus cogens or peremptory norm i.e. a fundamental principle of international law from which no derogation is permitted in any circumstance. The prohibition against rape in conflict has seen legal strengthening of an unprecedented scale and rate. It was only 15 years ago that it was declared that rape could constitute genocide. Since then, rape has been declared as being constitutive of crimes against humanity and war crimes. Sexual violence in conflict has been condemned by the United Nations Security Council, General Assembly and even the G8.

The ICC is such a new institution. It only started hearing its first case in 2006. Of course it is not perfect and fully formed. Which 7 year old is?

The Rome Statute creating the ICC was a huge step forward 15 years ago.  Not only were there now laws that said these acts were wrong but also now a way of bringing people to justice if their own courts were unable or unwilling to act.

We had had the principle of universal jurisdiction (created to deal with pirates) for centuries already that meant that those who commit serious international crimes could be tried in foreign courts. It was invoked only yesterday by the National Criminal Court in Spain to indict Hu Jintao, the former Chinese president, for the crime of genocide against the Tibetan people.

However now for the first time, there was an international institution charged specifically with international criminal law. Ten years ago, I remember being thrilled that there was even a possibility that those who hold absolute power in their countries could be brought to justice for atrocities they had committed. I am still amazed by this.

The ICC and the evolution of human rights standards and enforcement is a testament, not to the ministers, politicians and international global power elite, but to the efforts of the thousands of human rights activists all around the world (including across Africa) that made it happen.

We must not go backwards.

 

UPDATE 14/10/2013

The African Union, to the surprise of many, did not decide to withdraw its countries from the jurisdiction of the International Criminal Court. Rather, a list of 5 demands has been issued to the ICC and the Security Council with a deadline given of 12th November, the date set for the trial of President Kenyatta in The Hague. One of the demands is that the Court suspend its prosecution of heads of state. This is obviously with an eye to the charges of crimes against humanity faced by President Kenyatta of Kenya and President Al-Bashir of Sudan. See here for analysis.

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