Changing realities: Five things that must be done to make ICC effective in discharging justice

There has been discussion on the need to a review the international criminal justice system. The debate has been sharpened by the collapse of Kenyan cases at the International Criminal Court (ICC), the most high-profile set of cases the court has taken since it was formed.

The international justice system is primarily made up of UN organs — the UN Security Council (UNSC) and the ICC or the Rome Statute.

Kenya recognises the importance and potentially beneficial role of the system for orderly and just management of world affairs. This is evidenced by the Constitution’s recognition of international treaties, constitutional provisions on Kenya’s obligations under international treaties and timeliness of Kenya’s ratification of the Rome Statute.

As is the case with all systems, periodic review, reflections and informed appraisal of the international criminal justice system is key. Indeed the UN Secretary General is required to convene a Review Conference to consider amendments to the Rome Statute “seven years after its entry into force”.

This provision was informed by the fact that situations and realities change with time and post-implementation experiences. The need to review and amend certain critical elements of the Rome Statute has been a matter of concern to AU member states. Justifiably, AU has strongly felt that ICC has primarily targeted its members.

The Review Conference of the Rome Statute was held in Kampala in June 2010 where a number of amendments were agreed upon. In just two months, it will be six years since the Kampala Amendments were agreed upon.

However, has been done in terms of their adoption, ratification and implementation. This speaks volumes over commitment to the Rome Statute by the community of nations, especially those presumed to be drivers of the ICC, those who sit “permanently” in the UNSC.

Acquittal of Deputy President William Ruto and journalist Joshua Sang was victory for AU, which had been fighting for unconditional acquittal of the Kenyans. This gives the organisation renewed impetus to push for the implementation of the Kampala Amendments.

To start with, for informed dialogue on poor application of UNSC resolutions and inherent challenges of the ICC, all UN member states should adopt and ratify the Rome Statute. Some are yet to do so and this is undermining its “universalism” and “internationalism”.

Also, as long as decisions of the Security Council are disproportionately determined by its five Permanent Members, (USA, Britain, Russia, France and China), perceptions of partiality and discrimination are unavoidable. This undermines legitimacy and moral of enforceability of UN resolutions and judicial decisions by ICC. The various UNSC Resolutions on Libya and Iraq are cases in point.

It has been argued that the paralysis holding back the UNSC from acting decisively on the Syrian crisis is due to low levels of trust and doubtful objectivity and impartiality of the Council. This has created space for a free for all military intervention regimes, unimaginable devastation, the migration crisis, global ISIS and unparallel humanitarian crisis in modern history.
Meanwhile, equal and universal application of law are key pillars for credible and meaningful justice systems. But the question is; do the ICC code and ethos of UNSC resolutions in respect to international crime against humanity apply equally and universally to all member states? The answer is obviously NO, for various reasons including the fact that not all UN members have adopted and ratified the Rome Statute. Also, those that have not done so are not necessarily obligated by its rules. At the same time, UNSC Permanent Members cannot be expected to pass resolutions that incriminate them. Thus, they are exempted from the justice system which other states are expected to obey and submit to.
Universal justice
Such perceptions portray the UNSC as a discriminative law maker, an instrument for double standards and purveyor of selective injustice. Equally, they deny ICC the potency as an agent of universal justice. From the AU perspective, discriminative application of ICC rules explain why African cases are in the majority at The Hague.

Another question on people’s minds has been; are ICC and UNSC political tools of the powerful against the weak? Complains, especially by Africa, that rich nations are using the two to intimidate the weak are common. A hypothesis is constructed on what presents itself as an obsession of the ICC and the UNSC with alleged crimes against humanity committed in Africa.

Yet evidences of excessive use of military force and widespread abuse of human rights by powerful UN member states in Iraq, Libya, Afghanistan and Syria abound. These military “playing fields” powerful nations are using to test their latest weapons remain no go zones for the ICC.

Impacts of poor application of the international criminal justice system for world peace have also been felt. The various UNSC resolutions authorizing military interventions in Libya and Iraq were forced through in total disregard to advice (specifically by the AU in the Libyan case) to apply peaceful means.

Key members of the Gaddafi and Saddam Hussein regimes were hunted down and either killed or presented to the ICC to face charges of crimes against humanity. However, the state parties responsible for the excessive use of force and indiscriminate bombings that destroyed whole cities and state institutions forcing thousands into destitution are cushioned from legal action under international law because they were faithfully carrying out UNSC resolutions.

While effecting regime change, many arms and munitions went to chaotic, murderous groups of youthful non-state actors alias “champions of Arab Springs”. The groups later mutated into ISIS. In a recent interview, President Barack Obama admitted failing to prepare for the aftermath of the overthrow of Libyan leader Muammar Gaddafi was the worst mistake of his presidency. President Bush should do the same in regard to Iraq.

PROLIFERATION OF ARMS

Poor applications of justice in Libya and Iraq have also empowered Boko Haram, Al-Qaeda in the Maghreb (AQIM) and other armed militias that have benefited from escalated proliferation of arms and large scale pilferage of oil and other natural resources of countries whose governance institutions have collapsed.

Closer home, insecurity in northern Uganda and Kenya, in South Sudan and Somalia; and in much of IGAD region has been aggravated by ripple effects of collapsed regime of Libya as ex-Libyan arms fell into the hands of cattle rustlers and criminal militias such as the Al-Shabaab.

The ICC may also need to consider Alternative Dispute Resolution (ADR) than the Prosecutorial Strand. Restorative justice and long lasting peace are achievable if the ICC does not narrow itself to exclusive use of the prosecutorial strand of justice. Both the use of military and the prosecutorial strands leave behind deep wounds whose scars are seen long afterwards.

The scars remind latter generations of affected persons and thus form basis of possible re-emergence of conflicts in retaliation or to rectify historical injustices.

USA and the UK use the reconciliatory procedures of ADR in civil and certain classes of criminal cases. The foremost of these are inter-party negotiation, third party assisted mediation and arbitration.

The credibility of these alternatives to third party determination by courts has seen Common Law Courts assume the extra role of facilitators of the negotiations.

The writer is a former policy advisor in the ministry of Foreign Affairs and International Trade. [email protected]