‘Justice cannot be for one side alone’: putting “international” back into the International Criminal Court.

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From the values of international justice, universal norms and human rights springs the idea of an International Criminal Court (ICC) capable of convicting individuals for crimes against humanity and war crimes. The creation of such an institution is not only the logical response to the question of how to enforce international justice; it is also a most welcome one. Yet, the ICC has a large problem – it is being accused of being a racist organisation. Given all the conflicts and alleged war crimes throughout the world, the ICC has reportedly received complaints about 139 countries; only seven investigations have been opened and all of them regarding African countries. Hence the African Union has recently accused the court of “hunting” African leaders. This sentiment was echoed by Ethiopian President Hailemariam Desalegn when he said that the pursuit of Kenya’s President Uhuru Kenyatta showed that ‘the process had degenerated into some kind of race hunting’.[1]

 

By prosecuting almost exclusively black African leaders, the International Criminal Court has opened itself up to accusations of racism and imperialism. Such accusations allow these same African leaders, with serious questions to be answered, to wriggle off the hook. Kenyatta is accused of inciting ethnically charged violence after the 2008 election which led to the deaths of a reported 1,200 people and the displacement of hundreds of thousands more.[2] The media coverage of his trial, now delayed due to the Westgate Mall terrorist attack, has focused much more on the “African witch-hunt” than on his alleged crimes against his own people. A similar problem exists in the case of Omar Al-Bashir, the President of Sudan. His indictment and arrest warrant alleges a nightmarish bloodbath in Darfur – mass murder of at least 300,000 people, extermination, mass rape by armed militia and widespread torture.[3] However, he recently attended the African Union Summit in defiance of his arrest warrant. And when the UN Security Council referred him to the ICC, he responded that this was unreasonable since three of the five permanent members of the Security Council had not fully signed up to the court themselves; namely the United States of America, Russia and China.[4] Who could deny such hypocrisy?

 

Put simply, the current state of affairs is unsustainable. Al-Bashir and Kenyatta deserve to be in the dock answering to the most serious claims a human being can be charged with. But, regrettably, their trials are starting to become less about crimes against humanity placed under the spotlight and more about where that same spotlight is refusing to shine. The international community is faced with a choice; either we all start taking this seriously and face up to some uncomfortable questions and investigations, or we send a message to Al-Bashir, Kenyatta, Joseph Kony and (perhaps in the future) Robert Mugabe that they can carry on disregarding international law without further punishment!

 

The latter is not an option. Just as there can be no domestic crime of murder without a court to hand out sentence, international crimes against humanity must have a respected court where justice is shown to be done. Otherwise, international rights and norms are as thin as the paper they are written on. The victims of such atrocities and their families not only demand but deserve to see their perpetrators in The Hague. Voices that demand justice spring up from not just those who have lived under African dictators but in Bosnia, Syria, Algeria, Vietnam, Yemen, Pakistan, Libya and China too.  As one of the original drafters of the UN Declaration on Human Rights Eleanor Roosevelt once put it, ‘justice cannot be for one side alone, but must be for both’. So for this process to be taken seriously, firstly, all countries who hold crimes against humanity to be crimes deserving of punishment must sign up fully to the ICC. Secondly, western leaders and officials must be prepared to take their seat in the dock too and be ready to answer some serious questions.

 

Those who have read ‘The Trial of Henry Kissinger’ by Christopher Hitchens may be inclined to think that witnessing the former National Security Advisor’s trial in The Hague would not be a bad place to start. Certainly, since neither Richard Nixon, Lyndon Johnson, Kissinger et al have ever apologised for the destruction of Vietnam and Cambodia is a stain that, like for Lady Macbeth, one would hope remains a ‘damned spot’ on their conscience.  As Hitchens writes in that book,

 

“A failure to proceed will constitute a double or triple offense to justice. First, it will violate that essential and now uncontested principle that not even the most powerful are above the law. Second, it will suggest that prosecutions for war crimes and crimes against humanity are reserved for losers, or for minor despots in relatively negligible countries. This in turn will lead to the paltry politicization of what could have been a noble process, and to the justifiable suspicion of double standards.”[5]

 

If figures like Kissinger are so insistent of their innocence, then what better place to begin to clear their name than under the watchful eyes of the world at The Hague?

 

Furthermore, Amnesty International and Human Rights Watch’s report last week made a strong case that the United States should answer accusations of unlawful, extra-judicial killings in Pakistan.[6] And, just as the pressure of Saddam Hussein’s trial would have been better off under international observation at The Hague, investigations into Abu Ghraib would have shown more genuine remorse were it handled by an ICC with teeth rather than members of the United States Armed Forces. This is not just to single out the United States; there are many areas and regimes throughout the world where investigations and criminal proceedings need to be carried out urgently. Such events include the blockade of Gaza, the Chinese occupation of Tibet, the brutal Indonesian genocide in the recently independent East Timor, the ethnic cleansing of Rohingya Muslims in Burma and the war crimes of the Sri Lankan regime.

 

One of the most potent examples of the need for the ICC came in the vengeful execution of Colonel Gaddafi. Who could think of a better symbolic start for the new Libya than one where its new rulers rose above the sunken depths of the mob violence and maniacal cruelty of Gaddafi family rule and chose the rule of law and due process for all accused of such heinous crimes under the watchful eyes of the world? Instead, his execution showed its butcherers to be a different edge of the same cruel sword.

 

We need the ICC to hold each and every regime to international norms and to give legitimacy to values of human rights, tolerance and due process. The big world powers need to start taking international justice seriously and its prosecutors need the courage to take on every target no matter their influence. Until then, we are giving perpetrators of crimes against humanity in places like the DRC and Darfur the excuse that they are on trial because of western imperialism and not their own actions. International human rights require a truly international court. It’s time we bent the arc of the moral universe a little bit closer to justice, wherever on this earth it lands.

 

Written by Phil Armitage, Edited by Simon Renwick

  • Matthew JP Willmore

    The reason that the ICC seems to have a focus upon Africa is that most other continents have their own regional courts for human rights abuses which require supranational attention, for example: the ECHR or Pan-American court. It is probably also useful to note that the vast majority of prosecutors, lawyers and judges in the ICC are also African, this is not a case of white European judges chasing African despots and ignoring the European ones. Rather, because most other areas are signatories to their own pan-national courts other countries are rarely seen at the ICC.

    I agree that the USA does seem to be able to act without much scrutiny, though the chances of the ICC performing that function is zero given that the US are not signatories….

    • Phil Armitage

      Thanks for your comment. Firstly, the European Court of Human Rights (and the subsequent incorporation of the convention into UK law with the Human Rights Act) is very important but mainly deals with domestic legislation and public bodies for people living in the UK. It would not cover any foreign victims of UK or other European countries’ foreign policy, for example. Secondly, even in the scenario that war crimes were committed by a government that had signed the Convention against its own people, the maximum penalty Strasbourg can impose is a fine.

      On a further point, international rules have to be upheld by international courts holding everyone to account. A proper ICC would be the best impartial court process for the most heinous of crimes by governments and actors – leaving other laws and activities to be challenged in Strasbourg, San Jose, etc.

      My point was not that the ICC IS a racist organisation but that the imbalance in who it prosecutes allows for that perception.

      Exactly, so the US should sign up immediately.