ICC has had more than enough time to prove itself but has failed

A fortnight ago, the International Criminal Court (ICC) in The Hague handed down its stiffest sentence of thirty years imprisonment of the DRC’s Bosco Ntaganda. It also acquitted the Ivory Coast’s former president Laurent Gbagbo in yet another self-inflicted injury to the now discredited court. The Ntaganda verdict will not vindicate the court in the eyes of its critics. 

Since its establishment in 2002 to bring war criminals to justice, the ICC has indicted 45 individuals, the majority of whom “happen” to be African. This has led critics to ask: ‘Are war crimes, genocide and crimes against humanity uniquely African problem?’

It’s no wonder that African leaderships are deeply offended. Kenyan President Uhuru Kenyatta once noted: “We want to believe in due process before the ICC, but where is it being demonstrated? We want to see the ICC as fair and even-handed throughout the world, but what can we do when everyone but Africa is exempt from accountability?”

And who can blame the South African authorities for smoothing the exit of the then Sudanese President Omar Bashir, who was not only an invited guest of the African Union (AU) but who had also received assurances of immunity during his stay in South Africa for the 2015 AU Summit. More importantly, the ICC’s request was in direct contradiction of international law whereby a sitting head of state or high officials traveling on state business enjoy immunity from arrest.

For instance, in November 2007, the International Federation of Human Rights Leagues and the US Centre for Constitutional Rights lodged a suit against former US Defence Secretary Donald Rumsfeld in France alleging he was responsible for human rights abuses, including torture. However, French prosecutors ruled that Rumsfeld was immune from prosecution because of the immunity enjoyed by heads of government and ministers.

The UK, which adhered to the concept of Universal Justice, has found ways to circumvent its obligations by granting prominent visitors vulnerable to arrest ‘Special Mission Status,’ which was used a few years ago to protect Israeli politician Tzipi Livni from arrest on charges of war crimes. A visiting Israeli general, accused by a firm of lawyers acting on behalf of Palestinian plaintiffs of ordering the destruction of 50 homes in Gaza, was tipped off by the UK authorities and advised not to deplane.

There are many non-Africans who deserve being investigated for their part in the death, displacement and torture of over a million Afghans and Iraqis but rather than international censure, they are heaped with honours, seats on the boards of major corporations and book tours. International justice should be blind to colour, religion, nationality. If it’s not, then it’s open to being considered nothing more than a tool of the wealthy and militarily powerful.

The ICC has had more than enough time to prove itself as a non-political, equitable institution but has failed to do so. And certainly the majority of African nations, most of which eagerly signed-up to the Rome Statute — including South Africa that incorporated its statutes within its national constitution — have reached that conclusion.

South Africa’s ruling ANC Party announced a few years ago that the ICC is “no longer useful for the purposes for which it was intended.” The African Union has considered withdrawal from the ICC in favour of establishing an African court along similar lines. That’s a better option when signatories to the Rome Statute have shot themselves in the foot while non-signatory countries can literally get away with murder, virtually unchallenged.

The ICC defends its record, arguing structural limitations. There is truth in that argument because global powers, such as the US, Russia, China and India along with many Middle Eastern countries have not ratified the Rome Statute on which the Court was formed.

The US has gone a step further by leaning on its allies and smaller countries to sign bilateral agreements assuring that US citizens will not be handed to the ICC — many are non-reciprocal. The only route by which nationals of states that are not members of the ICC can be referred to the court is via the United Nations Security Council. But again, this is wholly unfair because countries with allies among the big five permanent members are protected by their veto-wielding friends.

There is no doubt that the international system is set up in such a way that the strong and their allies get a free pass, while the weak are thrown to the wolves. This is not justice. This is unacceptable. And a court that is hamstrung by the principle of “might is right” is, indeed, not fit for purpose.

Jon Offei-Ansah is the Founder and Publisher of the London-based pan-African newsmagazine, Africa Briefing

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