Questions ICC supporters must answer

By Stephen Tumwesigye*

The ICC and global justice institutions need to move beyond the rhetoric and semantics

A lot has been going on in the world of international Justice. The events at the International Criminal Court (ICC) at The Hague and the African Union have filled the news for some time.

It is important that we stop to reflect and ponder the role of international justice institutions and their role in the world going forward.  At the Kenyan presidential inauguration early this year, President Yoweri Museveni noted that the ICC is an instrument of “blackmail.”

Museveni’s remarks have been dismissed by the court, western diplomats and some NGOs as “disingenuous” considering that Uganda was the first country to refer a situation to the ICC and the country has ratified and is one of the few to have domesticated the Rome Statute into national law.

The court has on several occasions argued that its focus on Africa is because crimes have been committed in Africa and that the state institutions are either “…unable or unwilling to genuinely try the crimes…” that have been committed on their territories.

This has been chorused by NGO’s such as the global Coalition on the ICC (CICC) and Human Rights Watch. These responses to critics and friendly skeptics alike only reinforce the notion that verbal dismissals are considered more important than practical reforms.

All these arguments however ignore the fact that there are several problems inherent within the ICC and more broadly the entire spectrum of international justice, which is inherited from the way international law is conceived and is pursued. It is increasingly being accepted that the entire system of global governance is fundamentally flawed and for the larger part favors the political and strategic foreign interests of major super powers.

This has been the attitude of the court in the way it deals with situations. It can be argued that the same conditions that exist in African countries also exist in other countries where crimes have been committed but the court has chosen to either carry on unending investigations or simply ignored them. The court has received over 20,000 requests for investigations from all parts of the world and several NGO’s have documented evidence of crimes in different parts of the world.

The prosecutor’s office has either chosen to respond with the famous creed, “there is not enough evidence” or “the crimes are being investigated.” But, for most African situations referred to the court, the prosecutor has moved swiftly and exercised prosecutorial discretion.

It is indeed disingenuous for the court to continue stating that it is not politically motivated when in certain instances it operates under the request of the United Nations Security Council (UNSC), a fundamentally political institution whose most influential members are not state parties to the ICC. The UNSC also maintains the power to veto requests for deferrals in a situation at the court. This hobnobbing between the Court and a political institution whose credentials have been questioned is unfortunate.

It is not surprising that during the negotiations of the Rome Statute several large coalitions of States like the Non-Aligned Movement and the like-minded States opposed any role of the UNSC within the court.

It should also not be surprising that the only situations the UNSC has referred to the ICC are Darfur and Libya. The court is still struggling to find concessions on the crime of ‘aggression’ because of opposition from the US. How can an international court fail to try ‘the mother of all war crimes’- aggression?

The ‘legalisms’ that the court operates under also ignore that the institution has not been very effective in its first ten years of operation. The court has only completed two fumbled trials after spending an average of 834 million Euros per year. All these are valid arguments that the court must address and NGO’s promoting the work of the court must point out these rather than cheer-lead for the institution.

The mandate of the court is also restricted to those “most responsible” for the most serious crimes. This therefore means that the court only tries and has in most cases issued arrest warrants for the top leaders and commanders in the different situations. This prosecution method however ignores the ‘structural dimension’ of most conflicts more so in Africa. As Prof. Mahmood Mamdani has pointed out, most of the conflicts in Africa actually reflect a broader governance problem that is prevalent in the post-colonial state.

The interventions by the court have been to deepen these conflicts by trying a few leaders while others have emerged. It is increasingly being accepted that conflicts in Africa and elsewhere can only be solved by a broad range of mechanisms that do not necessarily mean prosecutions.

The court needs to re-define its role if it is going to be operational in the next decade or so as a conflict-transforming institution. The court needs to see its role as a player amongst a myriad of other alternatives that have been proposed in post-conflict situations.

It is important to note that in responding to these criticisms from Museveni and others, the Court does not have an enforcement mechanism and relies on State cooperation. On the African continent, the court is up against a galvanized African Union that is under what has been described as an “African Renaissance;” there are proposals at the African Union to have a broader transitional justice policy and expand the jurisdiction of the ICC to try the same crimes under the jurisdiction of the ICC.

The court is now trying two powerful African presidents who wield strong geo-political power. President Omar al Bashir of Sudan has been moving to several countries while Uhuru Kenyatta of Kenya has noted that “…no one country or group of countries should have control or monopoly on international institutions or the interpretation of international treaties…” a reflection of his attitude to the court moving forward.

My argument above is not for crimes to go ahead unabated; it is a call for genuine and serious responses from international justice institutions on their role in the world. It is a yearning for a review of the nature of international law to reflect the principle of “equality of all States.” To reform the system requires an analysis of the potential dangers of maintaining and supporting a system that is still a purveyor of this blatant inequality.

Supporters of the Court and those interested in the global rule of law must seek for these answers. The court must respond to questions as to why no investigations have been conducted in Iraq, Syria, and Palestine and why preliminary investigations have taken forever in Afghanistan. When the court answers those questions with genuine answers not the usual legalisms, Museveni and others will probably lend their support again.

*  Source The Independent The author is an advocate of the High Court of Uganda and has just completed his Master of Laws at Harvard Law School.