by Max du Plessis
It has become fashionable to criticize the International
Criminal Court (ICC) for its exclusive focus on African cases. The critical perception of the ICC and its
work in Africa is a problem of history and international politics. Developing nations, particularly from the
South, now repeatedly and rightly complain about the skewed power relations
reflected in the Security Council. Those
power relations – and the imbalance of power within the Council – have come
sharply into focus in the case of the ICC.
That is because of the role reserved for the Security Council, through
the Rome Statute that created the ICC, within the ICC regime. After a decade of the ICC’s work, we have
witnessed as the Security Council referred two African situations to the ICC
(Sudan, and Libya) – but has repeatedly failed to do so in respect of equally
deserving situations (in relation to crimes committed by Israel, and most
recently in respect of the crimes unfolding before our eyes in Syria). Geographically we now have ten years of the
ICC’s work, and the reality that all the cases opened by that Court are in
Africa.
At a conference recently held in Nuremberg in early October
2012, the new Prosecutor of the Court, Ms Fatou Bensouda, correctly responded
to African critics by proclaiming powerfully, in her words, “that if you don’t
wish to be targeted by the ICC, then don’t commit the crimes”. And Ms Bensouda is right to highlight that
there are good reasons for why each of the African situations are currently
before the Court, not least of all because the bulk of the cases being
investigated are on account of African governments “self-referring” cases to
the ICC. Furthermore, we might pause to note that African victims of the
heinous crimes committed against them in the DRC, or in Uganda, or in Cote d’
Ivoire, or in Kenya, or in Sudan, or in Libya, don’t particularly care that the
ICC’s focus is on African situations only – probably in their minds they are
only too satisfied that the ICC (somebody, anybody!), is attempting to deal
with the perpetrators of these crimes.
It would be a double-tragedy to assume that their victims share the
self-serving criticisms of the ICC by African despots and powerful elites. And self-serving criticisms they all too
often are – one cannot imagine African leaders or the African Union caring much
to criticize the ICC if it had decided to pursue a worthy case against the head
of state from, say, a South American country.
We are closer to the truth if we accept the obvious – which is that African
criticisms of the ICC’s focus on President al-Bashir of Sudan arise precisely
because his case brings home to others geographically and graphically that they
may be next.
Nevertheless, it is time to accept that all these African
cases give rise to a perception problem, the sum of which can no longer be
ignored, and which threatens to undermine the credibility of the court. Let me tell you why, for three reasons.
The first reason is because this exclusive African focus
undermines claims that the international criminal justice project is truly
universal in its justice aspirations; or free from the vicissitudes of
international politics. At the same Nuremberg
conference at which Ms Bensouda spoke, Judge Song, the President of the ICC,
drew attention to the importance of the ICC being independent and universal in
its aspirations, and Judge Hans Peter-Kaul, also of the ICC, spoke about
equality before the law. However, there
is a disconnect between these goals – laudable as they are – and the practice
of international criminal justice.
Ultimately, it is a question that any first year law student is taught
to identify: being a question of fairness and equality. So long as the Security Council and the ICC
ensure that the Court busies itself exclusively with African situations, and
ignore or evade dealing with the sins of Syria, or the plight of the
Palestinians, the Court will suffer from a credibility problem.
We would all have seen in early September this year that
Archbishop Desmond Tutu refused to share the stage with Tony Blair at a
leadership conference in Johannesburg.
His refusal was motivated by his concern about the double-standard of
international criminal justice. The concern expressed by the revered
Archbishop symbolizes a powerful and morally profound view that the
international criminal justice project is shot-through with hypocrisy. While it is easy to dismiss the self-serving
criticisms of the ICC by African despots and warlords, it is not possible to do
so in response to the criticisms of Archbishop Desmond Tutu. Tutu while no friend of tyrants, is a firm
friend of equality and fairness.
That leads to a second reason why the ICC perception problem
can no longer be ignored. Aside from the
justice principles of equality and fairness, this exclusive focus on Africa
affords the selfsame African tyrants and powerful elites a gift; an excuse; a
weapon. It allows them to draw deserving
attention away from African crimes and the plight of African victims, by
insisting that the spotlight be kept trained on the skewed nature of
international criminal justice. And
ironically, it allows them to do so with a straight face. It gives them a stick with which to beat the
ICC and the international criminal justice project. It is no coincidence that the African Union’s
resistance to the ICC reached its shrillest levels the moment the ICC, through
the Security Council’s referral of the Sudan situation to the Court, decided to
focus on the crimes allegedly committed by an African sitting head of state in
the form of President al-Bashir. As the
net fell on him, it became clear in a flash to others similarly situated on the
continent, that his fate might be shared by other elites – that the net might
be extended to them.
The backlash by the AU against the ICC is well
chronicled. Whether out of a real
concern to ensure equal justice under law, or to shield powerful African
leaders, it is enough here to note that the AU has taken various steps to
reflect its deep displeasure with the work of the Court on the continent. We know about the repeated requests by the AU
for the Security Council to defer the case against al-Bashir; about Resolutions
adopted by the AU commanding AU member states not to cooperate with the ICC in
arresting African heads of state; and about the invidious position that a
majority of African states have found themselves in, torn between fidelity to
their regional motherbody, the AU, and their commitments to the ICC as treaty
members of the Rome Statute.
Also, more recently, we have seen how the AU’s discontent
with the ICC has fueled efforts to create a regional international criminal
chamber, grafted onto the extant African Court on Human and Peoples’
Rights. In November 2011 a draft
protocol for the creation of such a chamber was rushed into existence under the
AU’s stewardship, and in May 2012 Ministers of Justice and Attorneys-General at
an AU meeting considered and adopted the draft protocol for the establishment of
international criminal jurisdiction for the African Court. We are now at a stage where the Protocol has
been recommended for adoption by the AU Assembly, set for early in 2013. Given the continent’s human rights
atrocities, some (again) with a straight face can claim that this is a laudable
development. For my part, I’m not so
sure – as I’ve written in detail elsewhere. For one thing, the Protocol has been rushed
into existence with unseemly haste.
While the AU has for some time been thinking about the creation of a
regional international criminal tribunal (particularly because of perceived
abuses of universal jurisdiction by European States), it is quaint to think
that the invigorated push for the African Court’s expansion has no connection
with the AU’s backlash against the ICC.
The fact is that the protocol has been drafted with little or no
meaningful consultation with African governments or civil society – being
driven from the top-down by powerful players within the AU. A second difficulty is the Court’s proposed
subject-matter jurisdiction. Aside from
the African Court being asked to tackle the traditional international crimes of
genocide, crimes against humanity, and war crimes, the proposal is for the Court
to also tackle a raft of continental plagues – including terrorism, piracy,
mercenarism, corruption, money laundering, trafficking in humans and drugs, and
aggression. Again, these no doubt are
crimes that deserve a response, but the obvious question is whether a
meaningful one could ever be expected from the African Court, which to date has
struggled even to fulfill its human rights aspirations. That the Court struggles is hardly the fault
of its judges. The fault lies with the
continent’s politicians and their fudging and obfuscating within the AU,
including their poor grasp of finances.
The risk now facing the Court is that it is expected to do too much,
with too little. Certainly there is no
realistic prospect of doing justice to this wide panoply of offences that are
to be included on the Court’s docket.
Aside from the difficulty of complementing the Court’s judicial role
with fully capacitated prosecutorial and investigatory bodies that can
meaningfully pursue cases against the accused, there is the little problem of
money. A single unit cost in 2009 for an
international criminal trial was estimated to be in the region of US $ 20
million, nearly double the approved 2009 budgets for the African Commission and
African Court combined. Put differently,
the ICC budget for 2012 – for investigating just three of these international
crimes – is just about double the entire budget of the African Union as a whole
for the same year! The question must
therefore be asked: where is the money to come from? The answers to the question are vital. Without money the AU can’t capacitate the
African Court to do the type of international criminal justice work that the
ICC is already doing on the continent, in the service of African victims. It is just as well to reiterate that the
African Court in its more modest role as a human rights court is already
struggling (discussions with African Court judges confirm this to be the case,
including their complaints about resource constraints). To over-expand the Court might be a headshot
to a body that is already kneecapped.
The short point is that serious questions arise about the
effectiveness, desirability and impartiality of an international criminal
chamber within the African Court. Given
these and other difficulties associated with the AU’s recent rush to capacitate
the African Court with international criminal jurisdiction, a fair argument
might be made that the AU’s decision to embark upon this expansion is less
about regional justice, and more about regional obfuscation. Isn’t the real motive behind this push by
powerful AU figures aimed at throwing sand in the ICC’s gearbox, by placing
speed-bumps in the path of African states that are already party to the ICC,
and by sending confusing signals to those thinking of ratifying the Rome
Statute? Are we not witnessing what
might be called cynical complementarity?
Of course, one does not want to be read as unduly negative about the
prospects for an African regional criminal chamber; or worse, as an
Afro-pessimist. So let me say conclude
this portion of the paper by saying the following: if in due course the African
Union were to unveil a sufficiently funded, meaningfully resourced, legally
sound, and capacitated African criminal court that would fearlessly and
independently prosecute the likes of President al-Bashir or Hissen Habre, or
other African warlords, while simultaneously performing without compromise the Court’s
parallel mandate of protecting African human and peoples’ rights … then we
should all applaud, and I would clap loudest.
That brings me almost to the end of this short piece. Allow me now to focus on the positives.
The first is to herald, despite all the AU’s naysaying, the
leadership role that Africa has taken in respect of the ICC. We have the world’s first examples of
self-referrals from this continent (whereby African leaders invited the ICC to
open investigations into crimes committed in Uganda, and the DRC), most
recently continued in the case of Mali calling for the Court’s intervention in
respect of atrocities committed in that country. This is smart politics too: while African
states contribute a relatively small amount to the overall budget of the ICC,
they receive disproportionality high levels of the ICC’s service in the form of
highly paid professional investigators, prosecutors and judges focusing
attention on solving and prosecuting crimes committed in African states.
The second is to celebrate the important role that
complementarity has played – positively – in the work of civil society and
domestic institutions in responding to African crimes. Again, despite the AU’s bitter contestation
with the ICC at the political level, on the ground domestic investigations and
prosecutions of international crimes have shown promising signs of a home-grown
form of international criminal justice that should serve as an example beyond
Africa.
In this respect, there is an important judgment recently
handed down by the South African High Court confirming that South African
authorities are under an obligation to act as a complement to the ICC in
investigating – through the use of South Africa’s universal jurisdiction
provisions in South Africa’s ICC implementation legislation – purported acts of
torture committed in Zimbabwe by Zimbabwean police officials against Zimbabwean
victims.
Not only that, but for all the AU’s attempts to coordinate
an “African” response to the ICC, various examples have undermined the attempts
at a homogenous continental position. For example, South African civil society
mobilized in 2009, after reports that al-Bashir (by then sought by the ICC) had
been invited to attend the inauguration of President Zuma in Pretoria. Civil society threatened to seek a court
order for the arrest of al-Bashir if he attended the inauguration, and
ultimately the Government publicly stated that it was committed to the Rome
Statute and undertook to arrest al-Bashir if he did arrive in the country. Al-Bashir chose not to visit South Africa on
that occasion – and hasn’t attempted to visit since. In respect of Kenya,
al-Bashir tried his chances on one occasion, turning up as a guest at the country’s
celebration of its new Constitution in August 2010. In response to varied criticism of its
decision to host al-Bashir, and in reaction to a reported follow-up visit by
al-Bashir to attend a summit in Kenya two months later, Kenyan civil society went
to court and obtained a court order for the provisional arrest of al-Bashir
should he enter Kenya’s territory. He
hasn’t been back there since.
These positive examples are but a few amongst many – more
fully explored in a recent paper published by the Institute for Security
Studies.
Ultimately, in closing, it remains for the international
community to take seriously the call by Archbishop Desmond Tutu for less
double-speak and hypocrisy when it comes to international criminal
justice. While it is so that the
Security Council is often singled out as the source of this skewed unfairness,
that would be to miss the full picture.
It is also vital to recognize missed opportunities – and to learn from
them – when it comes to the ICC and its various organs. Most notably in this regard has been the
decision of the Office of the Prosecutor, under the leadership of the former
Prosecutor, Luis Moreno Ocampo, effectively to avoid investigating the crimes
committed by Israel during Operation Cast Lead.
In April 2012, Ocampo indicated, in an official statement
, that he wasnot competent to decide whether Palestine is a State such that
it can accept the jurisdiction of the ICC under Article 12(3) of the ICC
Statute. As a result, the ICC Prosecutor took the view that he could not
take any action as a result of the January 2009 declaration made by the
Palestinian National Authority, accepting the jurisdiction of the ICC over
crimes committed on the territory of Palestine.
In that statement, the Prosecutor decided that “competence
for determining the term “State” within the meaning of article 12 rests, in the
first instance, with the United Nations Secretary General who, in case of
doubt, will defer to the guidance of General Assembly. The Assembly of States
Parties of the Rome Statute could also in due course decide to address the
matter in accordance with article 112(2)(g) of the Statute.”
A group of eminent international law scholars took up the
Prosecutor’s suggestion and wrote to the President of the Assembly of States
Parties to the Rome Statute to urge her to place the question of the Statehood
of Palestine, for the purposes of Article 12(3) of the Statute, on the agenda
of the next meeting of the ASP – just recently held in The Hague. While the President of the ASP declined to do
so, it is notable that in their letter to the President the academics,
including Professors John Dugard and William Schabas, highlighted what they
believed is really in issue. The
professors wrote that “[w]e believe it is in the interests of international
criminal justice and the reputation of the ICC that the question of the
statehood of Palestine for purposes of Article 12(3) of the Rome Statute be
properly resolved as soon as possible”.
That question of the statehood of Palestine, in my view,
might be recast more broadly. I think it
is in the interests of justice of the reputation of the ICC that the Court
stretch its work beyond Africa. By doing
so the Court will deny the powerful African elites the stick which they so
easily and distractingly wave at the ICC.
It will also – where the evidence shows a need for the Court’s intervention
– be a means by which to pay homage to the principle of equal justice under
law. At the same time we should embrace
and encourage the existing work that is being done by the ICC in Africa.
There is then, a potential for a win-win situation. For the ICC to do justice as it should to the
African victims of the cases that are rightly before it and to do justice to the victims of such crimes outside of Africa
who equally deserve the Court’s and the international community’s
attention.