It is growing increasingly difficult to discern what the purpose of the International Criminal Court (ICC) has been since its inception in our global struggle between conflict and justice.
As part of the international effort to end impunity, the ICC’s goal is to investigate and put on trial individuals that have committed the “gravest crimes of concern to the international community” such as genocide, war crimes, and crimes against humanity. However, in the past ten years of practice, the ICC has seemingly only responded to crimes of its choosing – all eight investigations of the ICC have been in African nations, such as Uganda, Libya, Central African Republic, Ivory Coast, and Sudan.
African leaders and nations have recently become more outspoken about the ICC’s decisiveness to indict individuals from the African continent, and not those in more powerful parts of the world who are equally as criminal. Recently, South Africa declared taking steps to repeal the Rome Statute that created the ICC, as they believe it is inconsistent with their country’s diplomacy. The Ministry of International Relations and Cooperation of South Africa reiterated: “The Republic of South Africa is committed to fight impunity and to bring those who commit atrocities and international crimes to justice and, as a founding member of the African Union, promotes international human rights and the peaceful resolution of conflicts on the African continent.” Further, South Africa showed their non-compliance with the ICC when they denied arresting Sudan’s President Omar al-Bashir on a visit he made to the country this year. As one of the continent’s leading nations, South Africa quitting the ICC is a big deal. It has set precedence for other skeptical nations to pull out as well, such as Burundi.
But is that, fundamentally, such a big deal?
The ICC was established and conducts itself on the premise of “complimentarity.” It is the court of last resort. Although, in cases like Uganda and the Democratic Republic of Congo, there was internal referral to the ICC, the court’s decision to investigate other nations has been interpreted as an undermining of the continent’s capacity to adjudicate their own nations as needed. Disallowing the continent to attempt to investigate their own people and criminals, on their own terms, is a rejection of African solidarity but, more crucially, the African Union (AU).
The AU has been unapologetic in questioning the motives of the ICC, as well as the international community, as the ICC’s actions have been interpreted as neo-colonial and, quite simply, the pursuit of Western-nations in manipulating and dismantling undeveloped countries. Then, how is the AU not warranted to make candid remarks and hold onto their beliefs? What proof has the ICC really given them to believe otherwise?
The United Nations Security Council (UNSC) may refer individuals to the ICC when their nation is not a member of the ICC. Thus, this international power determines whose cases affecting peace and security are referred to the ICC. The true exertion of power and inequity is that members of the UNSC are not, and are not required to be, members of the ICC themselves. It’s a loophole of injustice. The United States, for example, has the power to call Somalia or Libya or Kenya into question through the UNSC, but are not held accountable for their own crimes of war as they can utilize veto-power to dismiss decisions of the UNSC. They also use their power to make backstage calls to Afghani agencies and groups to not internally refer themselves to the ICC as the US’s own troops and actions would be investigated for criminality. This is a tragic loss of justice! Powers like the US and Russia and China have not been questioned in their overt activity related to war crimes and crimes against humanity. Their track records are clean.
I would argue that the ICC has been fair in the investigations they have prosecuted, however they have discriminated in their decisions on who to investigate. As an African, I believe that my continent has just systems and peoples who can facilitate investigations and prosecutions of our own people. If the ICC does not put everyone deserving of a fair investigation or trial on their list, they have no integrity.
Justice is a prerequisite to peace – this is a crucial pillar of the ICC. When Secretary General Kofi Annan first spoke on the blueprint and formation of the ICC, he said, “This cause… is the cause of all humanity.” As such, all those in question should be investigated, in fairness and justice.