International Criminal Court and African Union: Selective Justice?

Before I embarked upon the merit of the issue, some preliminary issues should be discussed to see whether the International Criminal Court (hereinafter called ICC) is targeting Africans. To arrive at a fair and balanced conclusion, there is a need to discuss how the ICC exercises jurisdiction over the most heinous crimes by taking the ICC Statute (Rome Statute). Here, membership, complementarity, referral, and treaty obligations should first be addressed to ascertain the claim that the ICC is selective and targeting Africans. Most, if not all, cases filed in the ICC in the year 2008 were cases from African soil; the issues, whether it was deliberate and targetfull, is going to be determined case by case and issue by issue bases later on.

International law should not be wielded as the big stick by strong nations used to pummel the weak ones. We are against selective justice. If we have to be fair, the Georgian president, who is being accused byRussia of genocide, must face similar justice.                                                  

The then AU Chairperson, Jean Ping

1.   Antecedents of Exclusion and Selectivity of International Criminal Law Enforcement

Beginning from the Nuremberg and Tokyo International Military Tribunal down to the ICTY and lastly the ICC, the enforcement of international criminal justice system has been eyed by most as selective targeting only the “uncivilized” nations. Some argues that international criminal justice has become another instrument of “colonization and a means for suppression and domination” over the weak nations. As a result of this, international criminal justice found itself in a context of paradox whereby it promised to end impunity by trying individuals suspected of committing those crimes characterized as heinous crimes under the jurisdiction of the ICC  and making them accountable so that peace and security in particular and human rights in general can be secured. Yet the purpose at hand is being challenged due to the “practice” of the ICC “targeting” only the weak nations leaving same scenario elsewhere which concede impunity. This tendency will bring about a challenge to the ICC because states and the international community will lose trust over the ICC which debilitates the legitimacy of the ICC and hence cooperation of states will be at stake leaving the ICC meaningless. Equality (both substantive and procedural) of all persons before the law is a general principle of any law which derogation is impressible. And equality of enforcement of international criminal justice system ensures the legitimacy of international courts like the ICC through coherent and consistent application of law to all persons and in every circumstance. However, in many circumstances, enforcement of international criminal justice is repleted with cases of exclusion as dual selectivity. The first selectivity is in relation to the acts characterized as war crimes and the second selectivity is made to alleged atrocities committed by some groups. Selective enforcement of international criminal justice exists when an enforcement agency or officer has discretionary power to do nothing about a case in which enforcement would be clearly justified; the result is a power of selective enforcement. Such power goes to selection of parties against whom the law is enforced. Selective enforcement may also mean selection of the law that will be enforced: an officer may enforce one statute fully, never enforce another and pick and choose in enforcing a third.

Let me put in way of summary how the Nuremberg and Tokyo Military Tribunals and ICTY were selective. The following statement is noteworthy to quote:

The Allies have done or are doing some of the very things we are prosecuting the Germans for. The French are so violating the Geneva Convention in the treatment of prisoners of war that our command is taking back prisoners sent to them (for reconstruction work). We are prosecuting plunder and our Allies are practicing it. We say aggressive war is a crime and one of our allies asserts sovereignty over the Baltic States based on no title except conquest.

The four Allied nations – the United States, The United Kingdom, the Soviet Union, and France –whose prosecution of the defeated Germans has been variously described as “victor justice,” disguised vengeance and collective vengeance. One of the issues that arose during the meeting of the Allies in London was whether only the Nazis and Italians would be subjected to investigation and prosecution before the Nuremberg Tribunal. This argument was rejected and the defeated Axis powers were tried for various counts of crimes. However, there was no application of such towards the Allied powers who committed the same crimes. For instance, the Soviet Union sat in judgment against the Nazis accused of war crimes for which the Soviet Union was responsible, such as the disappearance of approximately 15,000 Polish prisoners, including between 8,300 and 8,400 Polish officers. There was also the bombing of Dresden in February 1945 by the British, when the war was almost over, which cremated tens of thousands of civilians, in violation of laws of war. In March 1945, there was the firebombing of Tokyo by American planes which claimed between 80,000 to 100,000 civilian lives, while the atomic bombs dropped on Hiroshima and Nagasaki by America killed an estimated 300,000 people and rendered the cities desolate. The same holds true for the Tokyo Military Tribunal. Beyond this, the Allied powers were judges and litigants at same time over the defeated Axis powers which contravene natural justice (nemo judex in causa sua). However, wary should be taken that it is not intended to create a you too (tu quoque) fallacy creating impunity rather to show the selectivity and exclusion which impends the development of international criminal law and protection of universal human rights values.

The same problem was also created by the ICTY prosecutor failing to prosecute the bombings of NATO over Kosovo in 1999 despite concrete evidences justifying prosecution. An Amnesty International report identified three basic types of war crimes allegedly committed by NATO members but for which they were not prosecuted. First, the attack on civilian targets such as the Belgrade RTS radio and television building were contrary to Article 52(1) of Protocol 1 of the Geneva Convention (1977). Second, the killing of civilians on bridges (Grdelica, Luzane, and Varvarin) in contravention on Article 57(2)(b) of the protocol. Third, the bombing that killed displaced civilians (Djakovica and Korisa) was contrary to Article 57(2)(a). The decision of the ICTY to prosecute only the nationals of the former FRY for international crimes once again underscores the selectivity of international criminal justice - one of the legacies of the Nuremberg trial. Beyond the legal requirement, the ICC is funded by the superpowers like the US resulting in the continuous existence of shielding such countries from prosecution at least through the UN Security Council referral and laws governing armed conflict (International humanitarian laws); which most provisions got the status of customary international law.

2.   What is ICC?

Beginning from International Military Tribunal for Nuremberg and Tokyo (IMTFE) down to the ICTY and ICTR together with other hybrid courts for prosecution of international crimes, there were a long dreamt for permanent international criminal court having jurisdiction over the most heinous crimes violating international values across the world against individuals.

The ICC is the first permanent international criminal court to prosecute over the most heinous crimes of concern to the international community as a whole and aims, like other courts, at ending impunity of the perpetrators of these crimes, and thus should contribute to the prevention of such crimes in order to realize the ever intended agenda of universal protection of human rights and rule of law internationally. This long dreamt international criminal court come into its existence in 17 July 1998 and entered into force on 1 July 2002 after 60 countries have ratified it, as required by article 126 of the Statute.

The court, which is established by a treaty, is different from other ad hoc tribunals of ICTY and ICTR which were established by the decisions of UN Security Council under the mandate of Chapter VII for maintaining international peace, security, and order. Discussion will be made about the relationship of UN Security Council and the ICC later on.

The ICC is only binding upon ratifying or acceding countries and for crimes committed after 1 July 2002; non retroactivity of criminal law (article 11 cum 24); hence, no ex posto facto like the Nuremberg and Tokyo Military Tribunals. A ratifying country to the ICC will have the jurisdiction to prosecute crimes committed only after ratification according to article 11(2) of the Statute. The ICC, which deals with individual criminal accountability in the international arena for crimes committed under its article 5, is an impartial and independent court which is not part of the UN nor is subsidiary organ to Security Council like the ICTY and ICTR, unlike the World Court (ICJ) a principal organ of the UN which deals only cases of state to state relations. The obligations of member countries will also be dealt later in a bit wider scenario in the following subtitles.

3.   What is Treaty Obligation (ICC Rome Statute)? Obligations of Member States?

It is conspicuous that ICC is established by a treaty unlike the ICTY and ICTR which was established by the decision of UN Security Council exercising its mandate under chapter seven of the UN Charter. As long as criminal law and proceedings are at the heart of state sovereignty and cooperation in criminal matters is a voluntary undertaking; a state is not obliged to cooperate with others in criminal matters unless it has agreed to do so save the exceptions for obligations of states which has got a customary international law status. These obligations are imposable whether a state consents or not due to their obligation erga omnes and jus cogens norms.

If states ratify an international treaty, criminalizing such crimes domestically and cooperating with international court like the ICC will be a compulsory obligation for states. As long as the ICC jurisdiction is a complementary to domestic court’s jurisdiction, it will be the last resort if states are unwilling or unable genuinely to prosecute the crimes committed in their soil. However, the ICC is not binding upon non-ratifying countries and hence no obligation either to cooperate or criminalize domestically.

In the discharge of state obligation under ICC Rome Statute, member states are expected or duty bound to act in accordance and in a manner compatible with the treaty obligation. According to the Vienna Convention on the Laws of Treaties 1969 articles 26 and 27, member states (Pacta sunt servanda) must act in good faith towards their obligation owed under the ICC Rome Statute. The function of the ICC can be properly rendered if member states are at a better position to cooperate with the ICC as articulated under article 86 and the following because ICC will be single handed to realize the universal protection of human rights and end impunity if states failed to discharge their obligation accordingly.

4.   Relationship of ICC and Domestic Courts: Complementarity?

As said above, the ICC is a court of last resort. The court is intended to supplement, not to supplant, national jurisdictions and the preamble to the ICC Statute recognizes that every State has a responsibility to exercise its own criminal jurisdiction over international crimes. The ICC has compulsory, complementary, and concurrent jurisdictions. This is why the ICC Statute obligates member states to criminalize these offences domestically so that priority of jurisdiction could be given to them. The principle of complementarity is based not only on respect for the primary jurisdiction of state but also on practical considerations of efficiency and effectiveness, since states will generally have the best access to evidence and witnesses and the resources to carry out proceedings. The priority jurisdiction of national courts will be taken by the ICC if the national courts are unable or unwilling to prosecute genuinely as per article 17(1(a) of the Statute. The term genuine prosecution is preferred because national courts may prosecute less effectively shielding individuals from criminal responsibility creating way for impunity. The ICC jurisdiction will not exist if the case is investigated or prosecuted (article 17(1(a) or the case has been investigated article 17(1(b) by a state with jurisdiction over it. The concept of unwillingness should be determined using the following elements where they show the existence of unwillingness:

(a)The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the court referred to in Article 5;

(b)There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c)The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Whereas, the existence of unable on the part of the national jurisdiction can be determined using objective criteria easily than the unwillingness concept which is subjective requiring motive.  Article 17(3) reads as follows:

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Apart from the above cases, a state may voluntarily relinquish its jurisdiction for lack of domestic criminal legislation and the ICC could take on the case without any problem.

5.   Jurisdiction of the ICC

Jurisdiction refers to the power of each State under international law to prescribe and enforce its municipal laws with regard to persons and property. But judicial jurisdiction relates to the competence of courts to apply national laws. The ICC has jurisdiction when crimes under its article 5 are committed either (i)in the territory of a member state(ratione loci)article12(2(a), (ii) by nationals of a member state(ratione personae)(article 12(2(b), (iii) A state which has not ratified the Statute has made a declaration accepting the Court’s jurisdiction over the crime(ratione materiae) (article 12(3),(iv) when the United Nations Security Council (UNSC) acting under Chapter VII of the United Nations Charter refers a specific situation to the ICC (article 13(b), irrespective of countries consent or membership to the ICC or (v) the prosecutor may initiate a case proprio motu as per article 13(c) cum article 15 if the pre-trial chamber believes there is a reasonable ground to proceed investigation.

a.   ICC and UN Security Council: Independent?

As provide elsewhere, the ICC is neither an organ to the UN nor subsidiary to the Security Council like the ICTY and ICTR rather an independent organ having jurisdiction over cases of genocide, war crimes, crimes against humanity, and crimes against peace(aggression) over individual criminals. However, the existence of relationship to the UN Security Council appears inexorable due to article 2 of the ICC Statute through a certain agreement. This relationship in its face appears simple but it has legal and political connotations embodied inside. This relationship brings three ways into play:  in a complementary fashion, where the Council and the court act in harmony; in a conflictual manner, where they take opposing positions or try to usurp the competence of each other; or in an overlapping way, where they pursue their own agendas without regard to the other even though they may be dealing with the same situation.

Article 13(b) allows the UN Security Council to refer a case for investigation to the ICC in exercising its mandate under chapter VII of restoration of international peace and security. Conversely, article 16 of the ICC Statute allowed the Council to block the jurisdiction of the court, thus giving the Council certain supremacy, but again only if it were able to garner the necessary votes in the Council and avoid a veto from a permanent member. Controversies could increase between the two organs because some countries are member to the UN Charter but not to the ICC and vice versa which highlights differential interests involving in both organizations. Therefore, the UN Security Council could be used as a shielding mechanism by the superpowers having the veto power like the US. This is because of the existence of article 103 of the UN Charter giving prevalence over other treaties. Article 13(b) was thought as a God sent opportunity for the Security because the article enables the Security to refer the case to already established judicial body; the ICC without the need to establish ad hoc tribunals. However, the addition of article 16 is frustrating because it is a power given to the UN Security Council to limit the power of the ICC to adjudicate by deferring which reads as follows.

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a Resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. (italics mine)

In many instances both organizations are different taking their purpose though some points of convergence exists. For example UN Security Council is a political organ unlike the ICC which is a judicial organ; UN Security Council is striving for international peace and security whereas the ICC works for rendition of justice.

b.   The Concept of Referral

What is referral? A referral is a mechanism of investigation by the ICC prosecutor whether there are reasonable grounds to commence prosecution against those crimes the ICC has jurisdiction. As per article 13(a) of the ICC Statute, ICC may exercise jurisdiction if a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14 of the Statute; which is referred as self-referral. Furthermore, the ICC may exercise jurisdiction upon a referral made by states;proprio motu as articulated under articles 13(c) cum 15 bis and UN Security Council referral using its mandate under chapter VII of the UN Charter article 13(b); holding non-member countries to the ICC using its referral which violates the Vienna Convention on the Laws of Treaties.

c.   African Union and ICC

Recently AU is resisting international cooperation for the ICC prosecution of Al-Bashir which was referred by UNSC. This is sometime considered by some as a “gift to a dictator” which gives a shield from international criminal accountability.  The repeated request of AU to UNSC to invoke article 16 for deferral of the case against Al-Bashir is creating some kind of tension resulting in failure to cooperate with the ICC creating a gap for impunity again. This tension further creates problem of legitimacy and trust towards the ICC by African nations which opens a way for human right violations and failure to hold accountable for international crimes (impunity) which is much needed by the ICC. Above all, this tension will bring about problem of cooperation which is paramount for effective work of the ICC in its execution because state cooperation is a sine qua non to the execution of the ICC mandate.

However, AU should blame the UNSC targeting only the African nation not the ICC. UNSC is a political organ while ICC is a judicial organ. On this conviction, US did not become member to the ICC because UNSC, which indirectly controlled the ICC, is controllable for the US using veto power. Article 27 and article 98 of the ICC together with article 16 are creating the problems and should be given positive interpretation.  .

6.   African Cases before the ICC and the Issue of Selective Enforcement of International Criminal Justice?

It is not arguable that Africa was and is facing from active hostilities which, clearly shows the commission and violations of mass human rights apart from the same scenario elsewhere in the world. However, the international community to enforce international criminal law in Africa is prevalent than other places in the world though the prevalence is going to be determined neutrally. Furthermore, AU’s resistance and failure to cooperate with the UN Security Council referral to ICC in case of Darfur, Sudan, may be a good indication to the selectivity of enforcement of international criminal law in Africa under the corpus of UN Charter but not ICC.

The African countries warmly welcomed the coming into existence of the ICC under a firm conviction that impunity is no longer a shield for the mass atrocities and human rights violations in Africa and elsewhere. This argument can be buttressed by evidence where Senegal becomes the first ratifying nation in the world followed by the existence of many African ratifying nations to the ICC. The focus in Africa by ICC has been criticized by many, with the court sometimes perceived as a ‘court for Africa’. However, save for the referral by the Security Council of the situation in Darfur, Sudan, all cases were referred to the ICC Prosecutor by African states. Interestingly, the ICC Prosecutor has chosen not only to investigate crimes committed against civilians, but also those that are perpetrated against peacekeepers.

However, the US one of the "mothers" of the idea of a permanent international criminal court' almost became its murderer, refusing to become a party to the Statute of the Court, and ended up in the "group of seven" states that voted against it - others being China, Libya, Iraq, Israel, Qatar and Yemen. Several reasons could be counted for US paradox move towards permanent international court inter alia intending the UN Security Council to control the ICC; the court threatens American sovereignty by subjecting into the ICC and inclusion of aggression into the ICC jurisdiction as subsidiary reasons. The first reason is very tenable to the US because UN Security Council to pass a decision needs consent of America and it is a good mechanism to control the ICC obliquely using veto power. Therefore, the US (Bush in Iraq and elsewhere, NATO) despite they commit crimes which the ICC has jurisdiction in different scenarios, could not be prosecuted for two reasons: 1) Both are not ratifying member to the ICC and 2) UN Security Council is not in a position to refer the case to be investigated by the ICC due to veto power. Furthermore, most African states has signed Bilateral Immunity Agreement (BIAs) with US in order to receive aid from the later despite their obligation under the ICC for cooperation if the countries signed the BIAs are ratifying member to the ICC. They did sign the BIAs agreement because without economic liberation, there can be no political liberation. But this is a clear violations of obligations owed under the ICC Statute for the ratifying countries of Africa which further violates Vienna Convention on the Laws of Treaties 1969.

African cases, before the ICC are either self-referral or UN Security Council referral. The ICTR did not have any nexus with the ICC prosecution; it was rather established by the UNSC exercising its mandate under chapter VII. Self-referral made by African nations includes Democratic Republic of Congo (DRC) against Thomas Lubanga and others, Central Africa Republic (CAR) against Jean-Pierre Bemba Gombo, Uganda against Joseph Kony, Sierra Leone against Charles Taylor, Cote d’Ivoire without being a member consented, and Kenya recently because of proprio motu.

7.   Concluding Remarks

The claim that ICC is targeting Africans while ignoring similar cases elsewhere is not tenable and did not hold water for the following reasons:

1)   African states actively participated in the making of the Rome Statute and voluntarily referred and ICC assume jurisdiction of African cases because the nations referred the case to the ICC with the exception to the case of Darfur, Sudan; against Al-Bashir and Libya, which referred by UNSC.

2)   If selectivity and targeting is to be blamed, it is not the ICC rather it is the UNSC under its referral procedure because UNSC referred cases of African ignoring similar instance elsewhere. So, there should not be confusion between ICC and UNSC which are different and independent organs having different agenda and purposes; though convergence exists.

3)   A caution should be taken on the side of African nations to ratify an international treaty. An international treaty is not without substantive obligations and hence they should not compare themselves with US, which is not a member country to the ICC because there no legal obligation on the side of non-member country. This is incomparable scenario.

4)   The UNSC and the veto power given should be seen again because this is the means where the superpowers can evade international obligations creating impunity for themselves while others are facing international accountability. The US is using UNSC obliquely to control the ICC because of veto.

5)   I believe that there should not be any kind of selectivity and targetful enforcement of international criminal law so that impunity could be struggled to its end and international criminal accountability could also be developed for universal protection of human rights.

6)   The commissions of crimes elsewhere by non-ratifying countries of the ICC can be tackled using UN Security Council referral, failing this, using humanitarian laws; which has got the status of international customary laws to end impunity purported by the ICC and thereby realize universal protection of human rights.

7)   The discretion of UNSC as regard to article 13(b) cum 16 of the Rome Statute and the ICC prosecutor as regard to investigation under article 17 cum 53 of the Rome Statute should be clarified. Furthermore, the contradiction between article 27 and 98 of the Rome Statute on immunity of heads of states should be settled.

8)   Both the ICC and Africa, as represented by the AU, share a mutual interest in addressing heinous international crimes. There is therefore a mutual gain, or "win-win" in the long-term, or conversely, a "mutual vulnerability", or "lose-lose", for both the Court and Africa should they fail to cooperate in the short-term.

9)   The argument of selective enforcement of international criminal law by the ICC against Africans creates a you too (tu quoque) fallacy furthering impunity to exist.