Tag Archives: International Criminal Court

Gaddafi indicted by the International Court of public opinion

It doesn't help that the ICC's Chief Prosecutor always looks so smug. (photo courtesy http://ellieteramoto.photoshelter.com)

The International Criminal Court, like so many other international institutions, suffers from its own lofty ambition. The dream of an international tribunal which upholds basic decency in the world, where tyrants are brought to book and mass murderers are served justice, is a beautiful one. Unfortunately, the ICC does not – can not – live up to this dream, and as the years go by it’s finding itself dragged further and further into the ugly world of modern international politics.

Take this week’s issuing of an indictment for war crimes against one Muammar Gaddafi. On the surface, this makes sense; he’s a monster who’s hunger for power is slaughtering thousands of his own people. He’s exactly the sort of person who the ICC should be indicting.

But dig a little deeper, and it all starts looking a little murkier. For a start, there’s the practical consequences; the ICC’s decision was criticised by a number of people involved in the negotiations with Gaddafi, who said it would shut down communication routes and prevent the possibility of a peaceful solution to the problem. This echoes the reaction of much of the NGO and academic community after the ICC indicted Sudan’s president Omar al Bashir, particularly the ones with hands-on experience in Sudan. They said that the indictment would have little impact except to anger the government and prevent any moderation of policy; sure enough, the morning after the indictment all the international NGOs in Khartoum were ordered out of the country, a move that had a real impact on many lives.

But perhaps you believe that justice should be served no matter what the consequences; it’s a valid viewpoint. Still, the ICC falls short. For in this case, you must believe that justice should be served to all, regardless of race or location or political expediency. And here, the ICC is hamstrung by its indictment processes, which allow an investigation to occur only when a matter is referred to the ICC by a country, the UN Security Council, or when the prosecutor gets special information from another source. In practice, this means that countries can refer people for investigation, or the UN Security Council gets to do it, as they did with Libya. This means essentially that figures linked to sitting governments can only be referred if there is an overwhelming international consensus about the issue. It’s no surprise that it’s taken so long to refer Gaddafi; after all, Russia only gave its tentative support to the rebels two weeks ago, and until it did so there was no chance of a referral being passed. This is why other high-profile figures are not brought to book, or even investigated – Henry Kissinger being one example, for his role in the bombing of Cambodia, and Ariel Sharon another, for his role in the Sabra and Shatila massacres.

In fact, the only people that have ever been indicted by the ICC are African – and black. This is because no single African country exerts any significant pressure on the international stage, meaning that there is often an international consensus to prosecute an African figure. This is not to say they should not be indicted, that there is not good reason for them to be brought before the court – there certainly is. But the fact that it is only Africans seriously undermines the message the court is trying to send – that the court is for everyone, no matter what your race or nationality. It also opens the court up to accusations – which are being made, to the extent that the ICC’s deputy prosecutor had to deny them – that the court’s targets are not legitimate.

We don’t live in a perfect world, with perfect justice. The ICC is an admirable attempt to plug that gap, and should receive significantly more funding and international support to do so. But unless it cleans up its processes, and stops launching investigations only when they are politically expedient, it risks fatally flawing itself before its done any of the good work it should be doing.

VERDICT: The ICC goes 4th; it can keep targeting Africans, as long as it targets the bad guys in the rest of the world too.

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Do not Genocide, Do not War Crime – the ICC goes 4th

Even Ocampo's reassuringly steely gaze cannot mask the ICC's problems

In honour of the recent review of the International Criminal Court in Kampala – attended by all sorts of dignitaries, both major and minor, including Ban-Ki Moon and his prosecutorship Luis Moreno Ocampo – it seems appropriate for Third World Goes Forth to conduct its own review of this most recent of all the international institutions.

The conference in Kampala was, of course, self-congratulatory and upbeat. Ocampo was on fine form: “It is only a matter of time [before] Sudan president Omar Al Bashir and LRA’s Joseph Kony will be arrested,” he said, sounding every inch the bullish wild west sheriff that he always reminds me of. But I’m unsure – both of the likelihood of arrests, and of exactly how much the ICC is achieving.

The ICC is, of course, a wonderful concept. That all men and women should be bound by the bare minimun of human dignity. That there is a point where one person’s behaviour is so bad that the world rejects it out of hand. And that punishment will follow for those found guilty of contravening the court’s central tenets – Do not Genocide, Do not War Crime.

The first problem is in the name. The ICC is not ‘international’; it does not represent the world. Specifically, it does not represent the USA, or China, or Israel, or Russia; to name but a few. There was another international institution that didn’t have the support of the USA – it was the League of Nations, the predecessor of the UN which was, somewhat ironically, established largely due to the ferocious campaiging of the then-US president Woodrow Wilson. He persuaded the world to join, but not the US Congress; and from that moment the League of Nations became a lame duck, failing utterly to prevent the the second World War.

Similarly, the ICC suffers massively from the lack of support from key countries, allowing others to ignore it as and when necessary. This was most evident after the March 2009 arrest warrant for Sudan’s Omar Bashir, when all African countries (with the honourable exception of Botswana; again leading the continent in respect for rights for all humans except bushmen) chose to ignore the warrant at the AU conference in Siirte. The refusal of the US and China to participate in the ICC process meant that they would face few repercussions by ignoring the ICC’s arrest warrant.

There is also a distinct whiff of the political in the ICC’s choice of exaclty who to prosecute, and when to do so. African countries have been up in arms at the perceived anti-African agenda of the court. A quick look at the list of faces being prosecuted by the court reveals an astonishing racial bias – they’re all black Africans. According to the ICC, only black people have committed war crimes in the last few years. And bear in mind that not all these faces are from countries which are signatories to the Rome Statute. Sudan “unsigned” the Rome Statute – relieving itself of all obligations to the ICC – in August 2008, six months before Bashir was indicted. Yet the ICC has not gone after the citzens of any other non-signatory nations for atrocities; say in Iraq (Fallujah, perhaps, or Abu Ghraib?), or in the Israeli offensive in the Gaza Strip. It has also not gone after seemingly obvious targets such as Osama bin Laden. Of course, there are enough people looking for Osama, and enough charges against him, that another one from the ICC would make little real difference [For the record, Osama’s hiding here]. But it would make significant symbolic difference, and this is what the ICC so far has failed to understand. Of course, the UN Security Council must take some responsibility, as one of the primary bodies that can refer cases to the ICC. But by only prosecuting African faces – regardless of the fact that those faces are fully deserving of prosecution – the court is sending a message that citizens of other countries are above the law; defeating the whole point of an impartial, international criminal court, and making it so much easier to ignore.

As soon as the law is applied to everyone, then the ICC will stand a much greater change of gaining the respect it deserves. Investigating the Gaza flotilla incident might be a good place to start.

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