ICC? Why Not Pan African Court of Justice?
By Amii Omara-Otunnu
May 17th, 2010
The manner in which the International Court of Justice (ICC) has thus far carried out its functions and the criteria it has used to indict almost exclusively individuals from Africa, have generated debates about both the relevance and impartiality of the Court.
There is certainly a perception among a cross section of historically-informed Africans that the ICC has been concerned less about justice per se than about making examples of the wretched of the earth on behalf of the mighty powers of the world. The perception, if not conclusion, prevalent among Africans seems warranted when it is considered that none of the people who authored the death of thousands of people by various means, for example, in Afghanistan, Chechnya, the Gaza Strip, Iraq, Pakistan and Sri Lanka, have been indicted.
It is a pity that a great many politically conscious Africans are questioning the impartiality of the ICC, as most of them had been enthusiastic advocates for its establishment, which came into force in July 2002, after sixty-six countries had ratified the Statute of Rome. The Statute of Rome, which was adopted at a diplomatic conference in the city on July 17, 1998, established the framework for the ICC.
The ICC is based in the Hague, Holland. According to the Rome Statute, it is charged to have jurisdiction over, and duty to prosecute and hold accountable individuals deemed to have committed, some of the most serious crimes of international concern. These fall under four heads of crimes, namely, crime of genocide; crimes against humanity; war crimes; and the crime of aggression. It is interesting that the Statute is quite silent on what might be regarded as transnational crimes of racial exploitation and oppression, which have had and continue to have devastating impact on millions of people all over the world.
Leading to, and after the adoption of, the Rome Statue, a great many African advocates of human rights were among progressive internationalists who were euphoric about the establishment of the international judicial institution, which they believed would inaugurate a new dawn in international rule of law and justice. However, the phrase “the rule of law” and the term “justice” were not clearly defined. There is little doubt that the adoption of the Statute marked a historical watershed and a culmination of protracted efforts by international jurists dating to 1947, to establish an international judicial institution dealing with some of the most heinous crimes committed against humanity. It is, however, not clear if the ICC was not oversold. It would seem that the internationalists were rather utopian without comprehending the dynamics and actual workings of international politics, which would influence the practical functioning of the ICC.
In any case, the euphoria about the Statute of Rome was not unanimous. There were a number of powerful people, notably in USA, who disparaged the Statute and asserted that the establishment of ICC would usher in a dangerous practice in international politics and law. This group of people raised two main objections to the establishment of the ICC.
The first was that the ICC would be used by “Third World” countries to administer political justice, for example, against USA. In effect, the thrust of the group’s argument in this regard seemed to be that the ICC would be incapable of administrating justice impartially, as the new institution would use political rather than judicial criteria to prosecute individuals.
And the second main objection was that the ICC would undermine national sovereignty. The second objection was highlighted despite the fact that the Statute stipulates expressly that the ICC would be complementary and not substitute to national judicial courts; meaning that cases would be referred to the ICC only when national courts lack the capacity or competence to deal with such cases.
Despite the fact that USA under Clinton administration participated actively in negotiations towards the Statute of Rome, a powerful group of people who were skeptical about the ICC prevailed upon the Bush administration to withdraw the signature of the USA from the Statute. In a testimony before USA Senate, the chief USA negotiator, Ambassador David Scheffer, indicated that the United States could not sign the Rome Statute because certain critical negotiating objectives of the United States had not been achieved. To achieve USA objectives, however defined, the American Service Members Protection Act was passed in 2002; this gives authority to the executive branch to use all necessary means to free members of the armed forces of the United States, if/when detained by the ICC. In addition, the USA has negotiated bilateral agreements with a number of countries, ensuring immunity of US nationals from prosecution by the Court.
Now that the ICC has been operating for close to a decade, since 2002, what sense can we make of its record; and on balance, which of the two groups mentioned above might have been more prescient than the other? Before we discuss the implications of how the ICC has carried out its functions, it is necessary to review the list of people indicted.
Most of the cases before the ICC have come from the African continent. To date, three countries in Africa, namely the Central African Republic, the Democratic Republic of Congo (DRC) and the Republic of Uganda, all of which are State Parties to the Rome Statute, have referred their citizens to the ICC for prosecution. The other country whose citizens have been referred to the ICC has been the Sudan. This referral was by the UN Security Council, on which two States that did not ratify the Rome Statute enjoy veto power; these being USA and China. Who were the people referred to the ICC? The Central African Republic referred Jean-Pierre Bemba Gombo. The Democratic Republic of Congo has referred Thomas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga and Mathieu Ngudjolo Chui. And Uganda has referred Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen.
There are three important and relevant points to note about the above cases. In the first place, all the above individuals were referred to the ICC by governments against which they were either actively fighting or opposed to. In other words, one party to the various conflicts took advantage of or manipulated the ICC to do, so to speak, its dirty work of eliminating feared opponents. In the second place, coincidentally, all the people referred to the ICC had become irritants to Western interests in the various regions of Africa. On the other hand, the governments referring their citizens to the ICC, were reputed to be obedient clients of the West and reported to be quite pliable to Western control. And third, none of the governments had exhausted internal or national means of resolving the conflicts or bringing to book the accused. In other words, the governments referring the individuals to the ICC abdicated their national duty and substituted the ICC for national judicial courts or systems. The referral of citizens of the Sudan, as indicated above, were by authority of the UN Security Council. The following were the people referred form the Sudan: Ahmad Muhammad Harun, Ali Abd-Al Rahman, Omar Hassan Ahmad Al Bashir and Bahar Idriss Abu Garda. There are three relevant facts that should be noted about the referrals of Sudanese citizens to the ICC by the UN Security Council.
The first is that the referrals came in the aftermath of a report submitted on 25 January 2005 by the International Commission of Inquiry on Darfur to the United Nations Secretary General, pursuant to Security Council Resolution 1564 of 18 September 2004. In the report, it is concluded that the government of Sudan did not pursue a policy of genocide in the Darfur region. It nonetheless indicated that the government sponsored Arab militias known as Janjaweed who engaged in widespread and systematic abuse of Black African population that may constitute crimes against humanity. The second is that in the UN Security Council, the referrals were mostly pushed by USA at a time when it had withdrawn its signature from the Statute of Rome and also when it had taken sides in the conflicts in Darfur region of Sudan. Here questions might be raised about USA impartiality if not moral authority on the matter.And the third and perhaps most significant from a juristic perspective is the fact that the UN Secretary General’s appointed International Commission emphasizes in the report, with regard to universal jurisdiction, “that the triggering of the ICC jurisdiction by the Security Council should be without prejudice to the role that the national criminal courts of other states can play. Indeed, other states might exercise the so-called universal jurisdiction over crimes allegedly committed in Darfur.” There is no evidence that the Security Council took seriously this counsel.
What sense can we make of the indictments by the ICC, without questioning the merit or demerit of the particular individual indictment? In general, there is a real risk of the ICC making a mockery of a vital principle of open justice, which has been memorialized in the aphorism attributed to Lord Hewart in the case of Exparte McCarthy, that “it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The same principle was crisply captured by Lord Bowen when he optioned that, “Judges, like Caesar’s wife, should be above suspicion.” It is fair to surmise that there is some suspicion about the indictments of only the individuals mentioned above, with the other parties to the conflicts left scotch free.
In particular, withreference to Africa, there are devastating implications for the fact that a disproportionately high percentage of individuals indicted by the ICC are from the African continent. It does not only indicate preoccupation with Africa but also suggests an inability of Africans to fashion institutions that can put their own houses in order. As a result, the ICC intervention could be construed as some kind of rescue mission for Africans. From a historical perspective, this is quite reminiscent of what Europeans proffered in the middle of the nineteenth century, as justification and prelude to robbing Africans of sovereignty over their lands and affairs. Students of African history might remember that for a long time, in text books and in lectures halls, the Eurocentric version of history was without evidence habitually pronounced that Europeans went to the continent to carry out the white man’s burden. Specifically, it was asserted that Europeans intervened to civilize and pacifiy Africans who were involved in internecine war fare. From the way the chief prosecutor of the ICC has gone about his work in Africa with aplomb, it would seem that the ICC official is oblivious of the historical parallels and symbolisms to the ways Europeans justified their intervention in Africa in the nineteenth century.
In the Uganda case, for example, the ICC chief prosecutor demonstrated an insensitivity that verges on arrogance. When the local people who had borne the brunt and weight of the conflicts for over twenty years suggested indigenous modes of resolving the conflicts, he continued with the course of action he had determined with Uganda’s head of state, without making reasonable efforts to see whether the indigenous formula would work or not. This, unfortunately, was reminiscent of European colonial arrogance. The lack of consultation with local people by the chief prosecutor is rather puzzling, given that the prosecutor has claimed to be keen to bring justice to the people who have suffered. If his claim is sincere, why not listen to those who have suffered the most? Or rather, could it be that the chief prosecutor is mistaking the interests of the donor community for the yearnings of ordinary Africans for both peace and justice?
Unless the ICC in general and the chief prosecutor in particular make every reasonable efforts to listen impartially and appear to be impartial, the international court will have neither credibility with, nor the confidence of, the great majority of ordinary people who suffer across the globe. Listening to local voices and taking them seriously into account counsel from indigenous people are imperatives if the ICC is to gain the confidence of people who need it most and if it is not to become a white elephant.
Beyond the critical remarks about how the ICC has thus far approached cases of international crimes in Africa, there a few constructive proposals that can be made here for action by all who are genuinely concerned about justice in the continent.
It would be of great value to Africans if the donor community could show serious concern about justice in Africa by investing affirmatively in two principal areas. The first is to invest in building a viable and credible judicial institution in the form of a Pan African Court of Human Rights. If this was done, the ICC would serve its intended purpose as a complementary rather than substitute court. There are surely enough committed and brilliant African jurists who can bring both impartiality and sensitivity in dealing with egregious crimes committed in the continent. There is simply no need in the twentieth first century for any form of the proverbial white man’s burden to be dangled about.
The second area in which the donor community could invest in, if the continent is to realize its great potentials and gain the confidence of her citizens, is in the area of elections. Instead of having all types of international election observer teams going to every country in the continent, Africa would be better served if a Permanent Independent Pan African Election Commission could be established. Such a Commission would be staffed by well trained and paid personnel from different regions of the continent. The Commission would have a two-fold task: to issue uniform rules for elections, and to supervise elections in every country in Africa. Once Africans can enjoy free and fair elections that are not manipulated or rigged, election outcomes would energize people to engage in self-sustaining activities and through democratic means they would work out formula for Africa’s multitude of problems.
It is ironic that the skeptics who opposed the establishment of the ICC raised points of objection that have more or less been vindicated, except that the ICC has not dared to indicate individuals from powerful countries. If Africans could fashion, with the solidarity of the donor community, a system where their votes indeed count and where the rule of law works to ensure that justice means fair outcome arrived at by fair and transparent procedure, they would minimize the danger of the ICC discharging its functions in a manner that raise questions in the minds of concerned people. and in the process would help the ICC discharged its functions in a judicious manner.
Professor Amii Omara-Otunnu is UNESCO Chair in Human Rights, Executive-Director of the UConn-ANC Partnership and Professor of History at the University of Connecticut, Storrs.