Tuesday, January 5, 2010

SA’s bold proposal shows up the flaws in the Rome compromise

[Published in the Business Day, 29 December 2009]

AT LAST month’s eighth session of the International Criminal Court’s Assembly of States Parties, SA made a bold and controversial proposal: that the provision allowing for the United Nations (UN) Security Council to defer proceedings before the court (article 16) be amended to allow for the UN General Assembly to do so in the event that the council fails to act.

Although the proposal was greeted with hostility by most states, and has received very little media coverage, the issue remains on the agenda for the next session in March, the all-important precursor to the court’s first review conference in Kampala in mid-2010.

The court’s disciples’ immediate and predictable response to the proposal will be that SA has again sacrificed the ideals of international justice on the altar of political expediency. Such jeremiads, while appealing, are misplaced, or at least require contextualisation.

The proposed amendment to article 16 comes at the end of the most tumultuous year in relations between the International Criminal Court and Africa since the court’s inception in 1998, the flash point being the arrest warrant issued for Sudanese President Omar al-Bashir on charges of crimes against humanity and war crimes committed in the Darfur conflict.

From the outset, the African Union (AU) has voiced concern about the warrant and in July adopted the Sirte Declaration, enjoining African states not to co-operate in arresting al-Bashir. SA’s amendment, a joint position of African states parties, is the upshot of their spirited, yet ultimately failed, attempts to cajole the Security Council into exercising its power of deferral to halt proceedings against al-Bashir for a year.

The populist claim made by some African leaders, that the court is targeting Africa, is based on a misunderstanding of its functioning and ignorance of the facts. Although the unpleasant reality is that all the situations being pursued by the court are in Africa, of those four situations all but Sudan were self-referrals.

There is a tepid argument to be made for the invocation of article 16 in the case of al-Bashir to allow for the Thabo Mbeki-led mediation to take its course. That argument, however, is made elsewhere. SA’s heretic article 16 proposal can be more usefully considered in light of foundational issues it raises regarding the nature and structure of international criminal justice.

Al-Bashir aside, the argument inadvertently and clumsily made by SA’s proposal is that the current set-up of the International Criminal Court is flawed, and repeats the hierarchical and unjust structure of the international system. At the centre of the current regime of the court are the UN Security Council’s referral and deferral powers: article 16 is the “negative” component of the council’s relationship with the court, the “positive” one being article 13, which allows the council to proactively refer a matter to the court. These provisions are the product of hard-fought compromises made during the drafting that failed to satisfy either the “realists”, who wanted a Security Council-controlled court, or the “legalists”, who optimistically demanded an apolitical theatre of cosmopolitan reckoning.

The result entrenches the Great Powers exception granted to permanent Security Council members by giving the council the sole discretion to refer and defer matters to the court. Article 16’s realpolitik exceptionalism rests uncomfortably among the International Criminal Court Statute’s provisions guaranteeing justice and fairness. Nevertheless, in 1998 many viewed this Faustian bargain as necessary to enable the court to come into being and secure the support of (certain) Great Powers. This compromise may no longer tenable.

SA’s amendment aims to grant a residual power to the General Assembly to defer a matter before the court if the council “fails to act” within six months. The primary difficulty is one of authority, as article 16 relies on the Security Council’s mandate as the guardian of international peace and security. The amendment tries to overcome this problem by relying on the divisive Uniting for Peace resolution, adopted by the UN General Assembly in 1950 to break a deadlock over the Korean War. This purports to establish a secondary responsibility in the assembly for the maintenance of international peace and security in the event of Security Council inaction.

In the final analysis, this is probably the amendment’s death knell, as even sympathetic countries are unlikely to support employing the defunct Uniting for Peace resolution in this legally questionable manner. Nevertheless, there are arguments worth considering for the amendment’s motif — challenging the Security Council’s hegemony.

First, the claim that it amounts to a politicisation of the court rests on the assumption that the court transcends politics, and that politics has no place in it. But the court was politicised at its inception, most obviously by the inclusion of the Security Council’s role.

More generally, international criminal justice rests unpredictably between the political and the legal, and is not the pure expression of either. Truth be told, such principled objections are not about the politicisation of the court per se, they oppose a particular type of politics. Most western countries are more comfortable with the current arrangement — which effectively gives the five permanent members of the council joint custodianship over international justice — than the thought of surrendering its responsibility to the international community at large.

The justifications for the exceptionalism of the council’s make-up are coherent (if unsettling). Granting such power may be a necessary compromise to prevent outrages upon global peace and security, but are the same considerations as compelling when it comes to fulfilling the promise of impartial, international justice? The extent to which the ethereal notion of “maintaining international peace and security” informs the politically charged Security Council’s decision- making process is questionable. But, even if it does, the imperatives of “peace and security” and the court’s pursuit of those most responsible for serious international crimes are not self-evidently coextensive.

The amendment’s offence is to challenge the political superstructure that bends the court’s promise of impartial international justice in the name of humanity to the will of the Great Powers. It challenges the compromise made at Rome, not the ideals of the court. That compromise gives non- states parties such as the US, China and Russia, hostile to the court, the power to direct and constrain its pursuit of justice and perpetuates the exceptionalism of the world order. Arguments in favour of the court’s perpetuation of the current arrangement must stand and fall on their own merit.

Now is an appropriate time to reconsider the council’s role, on the eve of the review conference where states parties will assess the court’s functioning during its first eight years. This is especially true given that states are contemplating surrendering further authority to the Security Council to trigger the prosecution of the “crimes of all crimes”, the waging of aggressive wars. Undoubtedly, there are flaws in SA’s proposal. There are compelling pragmatic arguments for keeping the vote bazaar that is the General Assembly out of the court’s proceedings. The principled argument, however, is less persuasive. While idealists may continue to rail against the politicisation of the sacrosanct court, and lament the idea of its further contamination through involvement of the General Assembly, they should do so only with equal vigour to the way they bemoan its subservience to the Security Council.