ICC: A question of credibility
GAMBIA has withdrawn from the International Criminal Court. Announcing the decision on Tuesday, the West African country accused The Hague-based tribunal of “persecution and humiliation of people of color, especially Africans.” Earlier this month, two other African countries, South Africa and Burundi, had announced the decision to leave the institution. Namibia and Kenya may follow suit, sparking fears of an African exodus from a court set up to try the world’s worst crimes.
The court’s chief prosecutor Fatou Bensouda is a former Gambian justice minister. Sidiki Kaba, to be endorsed as president of the assembly of member countries that will gather on Dec. 8, is Senegal’s justice minister. But the charge that the court is biased against Africa can’t be dismissed out of hand. Nine of 10 active court investigations are in Africa, the only exception being Georgia. The only two men the court has convicted so far also happen to be African, both Congolese warlords. Up to now, the only political leaders who have faced war crimes trials since World War II are those who fell foul of the West — and in particular, the US.
By calling the ICC “the International Caucasian Court for the persecution and humiliation of people of color,” Sheriff Bojang, Gambia’s information minister, was only expressing a sentiment widely shared in the continent. He did something more.
To buttress his theme that the court has two yardsticks when it comes to war crimes and crimes against humanity, he singled out the case of Tony Blair, former British prime minister, who, he said, should have been hauled up in The Hague over the 2003 Iraq invasion. Though Bojang did not mention US President George W. Bush in this context, the Nuremberg judgment of 1946 has laid down that “to initiate a war of aggression is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” It was under this judgment that 22 senior Nazi leaders of Germany were prosecuted and punished for war crimes after World War II.
The Rome Statute which established the court has been ratified by 139 countries, 34 of them African. Regrettably, the US is a notable absence. Africa’s support began to waver in 2006, when the court looked into atrocities in Sudan’s Darfur region and, three years later, issued a warrant for the arrest of Sudan’s president, Omar Bashir, charging him with genocide, among other crimes.
Although Gambian move has created fears of an orchestrated boycott of the ICC, this may not happen because of Western pressure or inducements. But even the symbolic withdrawal of some four or five African states will deal a crippling blow to the court’s credibility and prestige. Although US President Bill Clinton did sign the Rome Statute at the fag end of his eight-year term, US Congress has not ratified it for two reasons: First, it will dilute US sovereignty in criminal justice. Secondly, American soldiers might be the subject of “politically motivated or frivolous” prosecutions. But this is a good enough reason for every country to refuse cooperation with the ICC unless we make an exception in the case of US.
Luis Moreno Ocampo, the former ICC chief prosecutor, an Argentinian, had accused South Africa and Burundi of giving leaders on the continent a free hand “to commit genocide.”
He is right, but only partially. He should have raised his voice against and expressed his indignation at those who have allowed a situation where international law is applied inequitably to prevail. Unless this imbalance is redressed, we can’t say that ICC has moved from a lofty idea to a concrete reality. The court’s new $240 million headquarters, ceremonially opened in April by King Willem-Alexander of the Netherlands, may look sparkling and magnificent but those who feel it is housing an institution lacking in moral splendor are not confined to Africa.
