Is the International Criminal Court biased?

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Law

As (somewhat) positivists, we believe in the international system. It is the law that aims to prevent amongst others gross human rights violations. Nevertheless, since there is no enforcement mechanism in international law, the existence of international courts and tribunal are essential in establishing justice. The news of certain African nations such as South Africa and Burundi leaving the International Criminal Court was not surprising. However, any State leaving the ICC is a shame. The main reason behind their withdrawal is that the ICC is biased in the initiation of its investigation and prosecution of individuals. What is their assertion based on and is it valid?

How relevant is the ICC?

The ICC’s mandate is to prosecute those individuals responsible for, amongst others, war crimes and crimes against humanity. It can only do those by referral from States Parties and the United Nations Security Council. Since the establishment of the Court, African States have requested the ICC to conduct investigations into certain individuals with the aim of prosecuting them (e.g. in the situations of the Central African Republic, Mali, Uganda and the DRC).

One of the underlying fundamentals of the ICC is to function according to the complementarity principle which in essence means that the Court shall only deal with cases when national authorities are unable to. Hence, it stimulates national proceedings by simultaneously recalling the responsibilities of States to prosecute those individuals responsible for committing the international crimes when they have the jurisdiction to do so. The ICC is often accused of not stimulating and contributing to the competences of national, and in specific, African authorities. After all, how can certain States initiate prosecution proceedings when they are not capable due to impotent legal systems?

Is the ICC biased towards Africa?

Courtenay Griffiths, former defence lawyer of Charles Taylor (former President of Liberia who was found guilty of war crimes and crimes against humanity), certainly believes so. “What concerns me, from the very inception it was made clear that certain people from certain countries would be exempt from the jurisdiction of the ICC.” Referring for example to Robin Cook, former MP of the UK who, when asked how the signature to the Rome Statute would affect the UK, said that the ICC was not established to bring Prime Ministers of the UK or any other Western State for that matter before the Court. Griffiths points out that “what has happened since the introduction of the ICC is the replication at an international level of that persistent and pernicious connection between blackness and criminality.”

It is not like the Office of the Prosecutor has not received information or been asked to investigate situations in other sides of the world because it has. From Colombia to Iraq and Palestine. Not to mention the lack of investigation into the criminal responsibility of numerous Heads of State of the USA including Bush and Obama, the UK; evidently Blair and Netanyahu of Israel – to name a few. However, the Court chooses not to initiate investigation. Besides that, there are procedural barriers that limit the ICC. For example, the US and Israel are not parties to the Rome Statute. Food for thought: the US unsigned after 9/11. In addition, the political processes within the UN (Security Council) would not allow for the possibility of investigation into State representatives of these ‘great Western powers’. The system has its flaws. (Syria is an obvious example of the gravity of complexity within the SC).

Therefore, critical voices believe that the ICC is a neo-colonial institution too focused on Africa. Supporters of the ICC argue that many African nations (at least 30) are signatories to the Rome Statute and voluntarily cooperate with the Court. This may be so but still does not justify the Court’s initial focus on Africa and the shaded reasons behind that fact.

What now?

How about the international community refrains from criticizing and criminalizing African States for leaving the International Criminal Court, and instead focus on finding solutions to the problems of why they are leaving: the ICC’s track record in specific seems to be a product of the crooked international criminal justice system. A re-approach in the policies and practices of the ICC with an aim of decolonisation and inclusiveness is essential in order to foster much needed solidarity and co-operation in the international community.