ICC: World court faces charge of ‘judicial imperialism’
23rd July 2010

By Business Day ( Franny Rabkin)

  

Prosecuting Africans is easier, writes Franny Rabkin

  

NEVER again” is the simply-put rationale for the International Criminal Court (ICC), set up in 2002 under the Rome Statute to prosecute international crimes including genocide, war crimes and crimes against humanity.

  

At a conference at the University of the Witwatersrand last week, United Nations Assistant Secretary-General Adama Diang said that with the Rome Statute there was “technically no longer any hiding place, any safe haven in the world, where one could be beyond the reach of international criminal justice”.

  

The fight against “impunity” — the ability of war criminals to evade justice for the worst of atrocities — has instant appeal.

  

But contrast this noble objective with the following statement by African Union (AU) commissioner Jean Ping: “We think there is a problem with the ICC targeting only Africans, as if Africa is a place to experiment with their ideas.”

  

Mr Ping was explaining the AU’s decision not to co-operate in executing the warrant of arrest issued by the ICC for Sudan’s president Omar al-Bashir for his role in the Darfur atrocities.

  

Because SA has ratified the Rome Statute, Mr al-Bashir must be arrested as soon as he sets foot on South African soil.

  

But Mr Ping’s statement encapsulates a widespread sentiment, and not just in Africa, that the ICC is a form of “judicial imperialism”, another way of the north trying, once again, to “civilise” Africa.

  

All the ICC’s cases so far, both investigations and prosecutions, have been against Africans.

  

Why, it is asked, is there no prosecution of George Bush for the war in Iraq, or Israeli war crimes in Gaza? The main response to this criticism is that most of the cases before the ICC were “self-referrals” — that the African states themselves had referred their conflicts to the ICC for investigation.

  

But were they really?

  

A number of academics at the conference questioned the self- referral argument.

  

Dr David Chuter, of the Centre for Security Sector Management at Cranfield University in the UK, argued that, as with all international forums, some countries that have signed the Rome Statute are more equal than others. African countries are more susceptible to pressure because they depend on donor money for survival, he said.

  

Meanwhile, the ICC is under pressure from donors to deliver, leading it to choose its cases on a pragmatic (what would be easiest) rather than a principled basis.

  

Dr Phil Clark, a research fellow at Oxford University’s Centre for Socio-Legal Studies, argued the Uganda and Democratic Republic of Congo self-referrals were, in fact, preceded by extensive lobbying, with the ICC having to persuade the governments in those countries it was in their political interest to make the referrals.

  

Given the negotiations, he said, questions had to be asked about the fact that, so far, the ICC has targeted only atrocities committed by the Lord’s Resistance Army in Uganda and not those committed by the government.

  

Similarly, in the Congo, the ICC’s focus has been on Ituri province — where the link between President Josef Kabila and the atrocities is harder to establish.

  

Those defending the ICC referred to the principle of “complementarity”: in terms of the Rome Statute, the ICC may only take a case where the state is “unable or unwilling” to prosecute itself. The idea is that the ICC is a last resort and that domestic courts must always get the first bite.

  

But Dr Clark said while the executive in Kinshasa said it was unwilling to prosecute, prosecutors in Ituri province had already arrested suspects . The cases had already been substantially investigated and the judiciary was ready and willing to hear the cases.

  

Criticism of the ICC — its legitimacy, its claim of not being political, its focus on Africa, the complementarity principle, the al- Bashir indictment — came in thick and fast at the conference.

  

But answers were not as easily forthcoming.

  

When, after Dr Chuter’s bleak analysis, he was asked for an answer he replied that he did not want to tell Africans what to do.

  

Mr Diang, on the other hand, said: “We may take issue with the selective prosecution policy of the ICC, but … are we going to say that to avoid the judicial imperialism of the north we prefer to put up with the impunity of our criminals?”

 rabkinf@bdfm.co.za   

 

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