The African Union and the International Criminal Court: Selective Justice?
by Karia Sekumbo
Recently, the African Union and the International Criminal Court have been entangled in a political tussle as each party attempts to assert its superiority over another. The African Union has been especially critical of the ICC after suggesting that the functions of the ICC are to undermine the sovereignty of smaller countries. The most recent of these confrontations arrived after the African Union refused to recognize an arrest warrant for North Sudan’s Omar Bashir and six former members of the Kenyan government with the most notable member being Uhuru Kenyatta; former finance minister to president: Mwai Kibaki. Prior to delving into the intricacies of the above mentioned cases, it is firstly important to understand the structure of the ICC and to thus dig deeper into understanding where the controversy lies.
The International Criminal Court was established in 1998 after member states of the United Nations General Assembly voted in favor of the Rome Statute. The ICC was established through the International Law Commission whose mandate was passed through the United Nations. This had come after there had been numerous calls by the international community to establish a permanent court which could try individuals whose crimes constituted any act(s) of genocide, crimes against humanity, war crimes, and crimes of aggression. Despite there being increased discussion surrounding the establishment of an International Criminal Court after the 2nd World War, little action had been undertaken as powerful countries were reluctant to commit to the establishment of such a court. However, subsequent to the events in Bosnia, Herzegovina, Croatia, and Rwanda, the international community reconvened to firmly put in place a permanent court that could try individuals whose crimes amounted to crimes against humanity.
At present, the court enjoys participation by 152 member states of which 120 states have signed and ratified the Rome Statute. The Rome Statute is the treaty that established the ICC and was adopted at the diplomatic conference in Rome on the 17thof July 1998. It was entered into force on the 1st of July 2002. The Statute outlines the jurisdiction, functions, and structure of the ICC. Notable countries that are not signatories to the Rome Statute include the United States of America, Iran, China, Zimbabwe, Israel, and Sudan.
In structure, the ICC is designed to counterpart existing national judicial systems. The court can also exercise jurisdiction if the accused is a national of a state party, if the alleged crime took place on the territory of a state party, or if a situation is referred to the court by the United Nations Security Council.
The first area of controversy that surrounds the ICC surrounds the processes through which decisions are made. It is seemingly surprising that cases can be passed on to the ICC by the Security Council when 3 of the 5 permanent members of the UNSC are not signatories to the ICC. With such a structure it is apparent that despite not being members, more powerful countries still have a strong say on precisely who is tried.
Furthermore; to date, the ICC has indicted 28 people of which 7 have been African. However, all the alleged criminals that have actually been tried by the ICC have all been former African leaders. The most recent prosecutions awaiting trial and eventual verdict involve Saif Al Gaddafi and former president of Ivory Coast; Llaurent Gbagbo. With such a structure and history, the African Union has voiced its vehement opposition to the credibility of the ICC as the Court seems to be overly concerned with trying members of smaller countries. More specifically, the African Union has also suggested that the major powers are also using the ICC as a political tool to punish leaders whose behavior is antithetic to their interests. Additionally, because signing on to the Rome Statute involves surrendering any suspected individuals and parties under investigation to the ICC; it is increasingly looking as though the ICC assumes a position of superiority to the local courts regarding the trials of individuals. It is thus from here that the implications and problems of national sovereignty and the security of smaller states come into play.
Further to the crisis that has taken place in Libya, the African Union (AU) has issued a firm message to its members states and to the international community that it will not bow to pressures in surrendering individuals to the ICC. The AU holds its position on the assertion that double standards and selective justice is at work surrounding the decision making processes and in the dispersion of justice. The Chairman to the Commission of the African Union; Jean Ping explained that the AU is not against the mandate of the ICC; however it is diametrically opposed to its presumed double standards. Ping pointed to the ICC’s inactivity surrounding Sino-Tibet relations, Russian (through the Putin and Medvedev administration) abuses against the Chechnyan population, and the conduct surrounding the Bush and Obama administrations’ military activity in Afghanistan, Iraq, and Libya. Ping also went on to list further potential cases that should be brought to the ICC such as the French intervention in the Ivory Coast and with Israeli activities in Palestinian territories. Consequently, the AU has advised member states not to recognize the legitimacy of the ICCs’ indictments until repairs are made to the manner in which it functions and in precisely who is tried. Until then, he suggested that the ICC will always be a political tool used to undermine leaders of smaller countries.
As demonstrated herein, the African Union holds legitimacy in its opposition to the current structure, functions, and operations of the ICC. This indicates that at the very least; in the interest of preserving international peace and in enacting equal justice around the world, the international community has to take several steps in reconsidering its interactions vis-à-vis the ICC. More specifically, more steps have to be taken in re-evaluating the decision making processes and in deciding precisely who is tried. Participating states, signatories and parties to the Rome Statue have to either acknowledge the presence of the ICC in trying individuals accused of war crimes or completely refute its presence. A continued sense of ambiguity surrounding its authority poses more of a threat to political stability in the world. However, the ICC’s flaws do not signify that the African Union should use this as an excuse to shield leaders from justice. If anything, this should strengthen the need for the AU to form its own court whose functions equate to that of the ICC. This way, while it seeks to display opposition to the current form of the ICC, it will still be working towards bringing justice to members who may be guilty of crimes against humanity. This is especially important if the AU is to gain a credible presence in the international community and in fellow member states.
by Karia Sekumbo
Recently, the African Union and the International Criminal Court have been entangled in a political tussle as each party attempts to assert its superiority over another. The African Union has been especially critical of the ICC after suggesting that the functions of the ICC are to undermine the sovereignty of smaller countries. The most recent of these confrontations arrived after the African Union refused to recognize an arrest warrant for North Sudan’s Omar Bashir and six former members of the Kenyan government with the most notable member being Uhuru Kenyatta; former finance minister to president: Mwai Kibaki. Prior to delving into the intricacies of the above mentioned cases, it is firstly important to understand the structure of the ICC and to thus dig deeper into understanding where the controversy lies.
The International Criminal Court was established in 1998 after member states of the United Nations General Assembly voted in favor of the Rome Statute. The ICC was established through the International Law Commission whose mandate was passed through the United Nations. This had come after there had been numerous calls by the international community to establish a permanent court which could try individuals whose crimes constituted any act(s) of genocide, crimes against humanity, war crimes, and crimes of aggression. Despite there being increased discussion surrounding the establishment of an International Criminal Court after the 2nd World War, little action had been undertaken as powerful countries were reluctant to commit to the establishment of such a court. However, subsequent to the events in Bosnia, Herzegovina, Croatia, and Rwanda, the international community reconvened to firmly put in place a permanent court that could try individuals whose crimes amounted to crimes against humanity.
At present, the court enjoys participation by 152 member states of which 120 states have signed and ratified the Rome Statute. The Rome Statute is the treaty that established the ICC and was adopted at the diplomatic conference in Rome on the 17thof July 1998. It was entered into force on the 1st of July 2002. The Statute outlines the jurisdiction, functions, and structure of the ICC. Notable countries that are not signatories to the Rome Statute include the United States of America, Iran, China, Zimbabwe, Israel, and Sudan.
In structure, the ICC is designed to counterpart existing national judicial systems. The court can also exercise jurisdiction if the accused is a national of a state party, if the alleged crime took place on the territory of a state party, or if a situation is referred to the court by the United Nations Security Council.
The first area of controversy that surrounds the ICC surrounds the processes through which decisions are made. It is seemingly surprising that cases can be passed on to the ICC by the Security Council when 3 of the 5 permanent members of the UNSC are not signatories to the ICC. With such a structure it is apparent that despite not being members, more powerful countries still have a strong say on precisely who is tried.
Furthermore; to date, the ICC has indicted 28 people of which 7 have been African. However, all the alleged criminals that have actually been tried by the ICC have all been former African leaders. The most recent prosecutions awaiting trial and eventual verdict involve Saif Al Gaddafi and former president of Ivory Coast; Llaurent Gbagbo. With such a structure and history, the African Union has voiced its vehement opposition to the credibility of the ICC as the Court seems to be overly concerned with trying members of smaller countries. More specifically, the African Union has also suggested that the major powers are also using the ICC as a political tool to punish leaders whose behavior is antithetic to their interests. Additionally, because signing on to the Rome Statute involves surrendering any suspected individuals and parties under investigation to the ICC; it is increasingly looking as though the ICC assumes a position of superiority to the local courts regarding the trials of individuals. It is thus from here that the implications and problems of national sovereignty and the security of smaller states come into play.
Further to the crisis that has taken place in Libya, the African Union (AU) has issued a firm message to its members states and to the international community that it will not bow to pressures in surrendering individuals to the ICC. The AU holds its position on the assertion that double standards and selective justice is at work surrounding the decision making processes and in the dispersion of justice. The Chairman to the Commission of the African Union; Jean Ping explained that the AU is not against the mandate of the ICC; however it is diametrically opposed to its presumed double standards. Ping pointed to the ICC’s inactivity surrounding Sino-Tibet relations, Russian (through the Putin and Medvedev administration) abuses against the Chechnyan population, and the conduct surrounding the Bush and Obama administrations’ military activity in Afghanistan, Iraq, and Libya. Ping also went on to list further potential cases that should be brought to the ICC such as the French intervention in the Ivory Coast and with Israeli activities in Palestinian territories. Consequently, the AU has advised member states not to recognize the legitimacy of the ICCs’ indictments until repairs are made to the manner in which it functions and in precisely who is tried. Until then, he suggested that the ICC will always be a political tool used to undermine leaders of smaller countries.
As demonstrated herein, the African Union holds legitimacy in its opposition to the current structure, functions, and operations of the ICC. This indicates that at the very least; in the interest of preserving international peace and in enacting equal justice around the world, the international community has to take several steps in reconsidering its interactions vis-à-vis the ICC. More specifically, more steps have to be taken in re-evaluating the decision making processes and in deciding precisely who is tried. Participating states, signatories and parties to the Rome Statue have to either acknowledge the presence of the ICC in trying individuals accused of war crimes or completely refute its presence. A continued sense of ambiguity surrounding its authority poses more of a threat to political stability in the world. However, the ICC’s flaws do not signify that the African Union should use this as an excuse to shield leaders from justice. If anything, this should strengthen the need for the AU to form its own court whose functions equate to that of the ICC. This way, while it seeks to display opposition to the current form of the ICC, it will still be working towards bringing justice to members who may be guilty of crimes against humanity. This is especially important if the AU is to gain a credible presence in the international community and in fellow member states.
