The Controversy Over the ICC Beyond the Polarizing Political Context

2nd September 2009 By: ISS, Institute for Security Studies

Since the Chief Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo announced his intention to prosecute Sudan's President Omar Al-Bashir on 14 July 2008 and Bashir's indictment by the ICC in March 2009, the question of the reach and limits of the international justice system, anchored in the ICC, has provoked huge political controversy. What have been less talked about are the structural foundations of this controversy as it relates to Africa.

Although this is a controversy in which various global actors including the UN, human rights organizations and academics are involved, Africa and the African Union (AU) have been at the centre. It is also showing no sign of abating but rather seems to be deepening. At its Sirte summit in July 2009, the AU passed a resolution deciding not to cooperate with the ICC. Subsequent to that Moreno-Ocampo, seemingly in an attempt to mobilize support for his action, paid a visit to Uganda, one of the few countries that showed willingness to cooperate with the ICC.
At the political level, the debate has become polarized. Much of it focuses on the political underpinnings of the ICC, the fear that the ICC, like human rights, will be or have been caught up in the political, ideological and economic struggle among members of the international community. It also focused on the motivations of the AU's opposition to the indictment of Al-Bashir. The stand of most African countries and the AU first against the indictment of Bashir and more recently against cooperation with the ICC attracted, not necessarily without justification, fierce criticism from human rights groups and advocates of the ICC. It led many of them to question the sincerity of the commitment of the AU to its proclaimed values of justice, human rights and fighting impunity on the continent, which endured more brutality than any other.

Although participants in this debate raise important points, the debate at this level has shown a tendency to narrow down and portray the controversy, to borrow from Chidi Odinkalu of the Africa Programme of the Open Society Justice Initiative, as ‘the misbegotten duel between supposed imperialists and alleged impunity apologists'. While acknowledging that most participants on the different sides of this controversy have a strong case to make, it can however be argued that such formulation or portrayal of the debate is both dangerous and tragic. This is not only because it oversimplifies and inaccurately formulates the issue but also because it mystifies it. If progress is to be made on this very critical subject and if justice is to be achieved in countries like most in Africa, there is a need to go beyond this political context of the controversy and examine whether this controversy has structural foundations that should be looked at and properly addressed by the international community.

The truth of the matter is that the controversy goes deeper than the political level, and disturbingly reflects on the structural flaws of the international criminal justice system. There are two areas of concern here. The first is the problem with the principle of complementarity. The second one is the imbalances in the international justice system itself.

One of the principles of the ICC system is complementarity. The ICC is a court of last resort which comes into operation only when national justice systems are incapable of or unwilling to prosecute suspected perpetrators of international crimes. This is a principle premised on the primacy of national systems and the international law principle of the sovereignty of states. But it has also a more substantive purpose to serve. The operationalization of the principle means that violations are to be tried at the local level, where the atrocities are committed. This has the comparative advantage that it gives more opportunity for victims' participation and hence contributes more to the healing process. Unlike international trials, it also allows the society to record past atrocities, cultivate a culture of respect for human rights and institutionalize the fight against impunity.

Currently, the principle of complementarity practically operates largely in the context of advanced countries and less so in most African countries, where the capacity to try such crimes is needed most. In Africa, one thus observes that there seems to be more resort to the international system. Of course this is because national systems in Africa are either unable or unwilling. But it is also a result of the inattention to national systems and the failure of the international community to make a comparable investment in national systems as in the international system. As the book by Adam Smith After Genocide: Bringing the Devil to Justice reveals the international community pays more than 20 million USD for each international criminal trial.

The trouble is that the resultant heavy reliance on the international system means that the principle of complementarity remains largely theoretical for many in Africa. Most disturbingly, it carries the danger of marginalizing national justice systems as well as victims. It denies national systems in Africa the opportunity to develop the capacity to try crimes and thereby institutionalize the culture of human rights and respect for rule of law at the national level, where these commodities matter most.

The imbalance of the ICC system is the other structural problem. As Param-Preet Singh of Human Rights Watch put it, ‘part of the criticism of efforts to ensure justice for crimes in Africa is rooted in the fact that international justice currently operates on an uneven playing field.' Here the issue relates mainly to the power of the UN Security Council (UNSC) under Article 13 of the Rome Statute of the ICC to refer a case to the ICC. This allows the ICC system to apply not only with respect to states that are party to the ICC but also to non-party states as well. As Issaka Souare of the ISS put it, the problem is that ‘[i]t is unconceivable that the three veto wielding powers (China, Russia and the US) that have not ratified the Rome Statute will ever allow their peers to refer any of their nationals to the Court'. As a result, unlike weak African states without such privilege, these powerful states ‘are in a better position to shield their leaders from the arm of justice.' This gives credence to the claim in Africa that justice within the framework of the ICC system is selective justice or that it is biased or discriminatory against the weak in the international system.

Clearly, there is a lot more to this controversy than the seemingly polarized political context of the controversy reveals. It is also here that the key to the resolution of the current crisis of the international justice system lies. But it is not clear if the ultimate resolution of the problem, for example if Africa opts for a regional criminal justice court, will lead to the strengthening of the international justice system or will lead to its erosion. To the extent that it may entail the latter rather than complement it, it is imperative that all those who stand for the international justice system work together with the continent focusing on addressing the structural flaws of the system.

Written by: Solomon A Dersso, senior researcher, APSTA secretariat, ISS Addis Ababa