The birth of the International Criminal Court (ICC) was hailed around the world as a victory for international justice. It was hoped that its creation would spell the end of impunity for individuals guilty of the worst crimes known to the international community.
The ICC was created by an international treaty known as the Rome Statute in 1998. The Court is historically unique as it is the first permanent international criminal court. The court exercises jurisdiction over three crimes; namely, war crimes, crimes against humanity and genocide. Currently, 122 states are party to the Rome Statute with the notable exceptions of the United States, China, Russia and Israel.
In spite of the admirable aspirations that lead to the foundation of the Court it has been plagued with problems concerning state cooperation, funding and legitimacy. The Court’s relationship with the African Union (AU) and the 34 African states that are party to the Rome Statute has been particularly problematic.
At an extraordinary summit of the AU, which took place on the 11-12th of October, AU states considered the future direction of their relationship with the ICC. The state parties declared that no sitting government officials should be brought before the ICC, a direct contradiction to the Rome Statute. They also requested that the ICC defer the case against the Kenyan President Uhuru Kenyatta.
The long-term success of the Court depends on whether it can resolve its issues with the AU and African states and regain legitimacy as an arbiter of international justice.
One charge that has been consistently leveled at the Court is that it is unfairly biased against Africans. All of the cases currently before the Court involve individuals of an African nationality. The AU argues that the ICC targets Africans and ignores atrocities committed in other regions.
The AU’s argument ignores the fact that the Court may only consider a case where the national court of the accused is unable or unwilling to do so. This implies a situation in which a state’s judicial system has either collapsed or sided with the accused. Arguably, this occurs disproportionately in African states hence the overrepresentation of African individuals at the Court. Indeed, four of the eight situations currently being considered by the Court were referred by the state itself.
Nevertheless, the ICC should take the AU’s concerns seriously. The declaration that no sitting head of state should appear before the ICC severely limits its capacity to deliver justice.
In particular, two cases have incited disagreement between the AU and the ICC. These are the indictments of Sudanese President Omar al-Bashir and the Kenyan President Uhuru Kenyatta.
Al-Bashir was indicted in 2009 for his alleged role in atrocities committed in Darfur following a referral of the situation to the ICC by the United Nations Security Council. AU member states agreed to not enforce al-Bashir’s arrest warrant if he were to visit their country and they unsuccessfully petitioned the Court to defer the case. They argued that the need to resolve the conflict in Darfur should take precedence over justice.
The concerns of the AU bring to the fore the issue that sometimes peace and justice are irreconcilable. From the AU’s perspective, the indictment provides an incentive for al-Bashir to cling to power, as amnesty is no longer a possibility. Should the international community place more importance on the punishment of a few individuals than a peace agreement that could resolve a long and bitter civil conflict? The ICC has firmly decided in favour of this proposition; however perhaps they should reconsider their position. In some situations, the ICC should allow a society embroiled in civil conflict the chance to establish peace before indicting those responsible for international crimes.
The ICC indicted the current President of Kenya, Uhuru Kenyatta, in 2011 for his alleged role in the violence that followed the 2007 Kenyan presidential election. In response, the Kenyan National Assembly passed a motion to withdraw Kenya from the Rome Statute and petitioned the United Nations Security Council to defer the case. Kenyatta has thus far cooperated with proceedings but there is speculation that he will not appear at The Hague when his trial starts on 12 November 2013. The fact that Kenyatta was democratically elected whilst facing trial by the ICC shows that a majority of Kenyans do not support the trial.
The ICC must improve its relationship with Africa if it is to retain legitimacy as an international arbiter of justice. Just how this may be achieved is difficult to determine. The ICC’s past attempts to establish an African liaison office have been rejected by the AU but they must persist. The Court must actively engage with African governments to build relationships based on trust and understanding. In addition, the Court must recognise that in some situations peace must is more important than justice.