Mixed scorecard on ‘court of last resort’ as Justice Day marked

Friday marked the 2015 edition of the International Justice Day, a day celebrated on July 17 as part of efforts to recognise the emerging system of international criminal justice.

State parties to the Rome Statute meeting in Kampala in 2010 chose July 17 because it is the anniversary of the adoption of the Rome Statute, the treaty that created the International Criminal Court (ICC). 

The anniversary of the Rome Statute justifies a look at the steps that have been taken in promoting the system of justice envisioned.

A number of positive developments have occurred since then, including the actual establishment of a physical court at The Hague, whose work has been seen in a number of countries, including here in Kenya.

Currently, four state parties to the Rome Statute — Uganda, the Democratic Republic of Congo, the Central African Republic and Mali — have referred local situations to the court. In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya. Both are non-states parties.

Further, the court is dealing with the post-election violence in Kenya, whose referral to the court was the result of agreements reached during the country’s AU-led mediation.

Although not a state party to the ICC at the time, Cote d’Ivoire had accepted the jurisdiction of the court, which allowed the prosecutor to open investigations in the country. In all, there are nine countries whose situations are before the court.

In the relatively short period that the ICC has been in place, it has faced, and is having to address, a number of challenges.

CONSTRUCTIVE RELATIONSHIP

Initially, the United States showed active hostility towards the court because of the fear that its nationals risked the possibility of prosecution before the court. The Bush administration expended considerable energy negotiating bilateral immunity agreements both with states parties and non-states parties to the Rome Statute, aimed at shielding US nationals from prosecution by the court.
Although the US remains a non-state party, the end of the Bush administration has enabled a more constructive relationship with the court.

Another major issue has revolved around managing the court’s relationship with Africa. Since 2009, the AU has deployed a massive political strategy against the court, portraying it as carrying an anti-African agenda.

The fact that all the nine situations before the court are from African countries has been used to support the accusations. The argument that five of the nine African situations before the court (including Cote d’Ivoire) were the result of voluntary invitations by the concerned countries, and that the remaining three are referrals by the UN Security Council, a body that is independent of the court, has not necessarily reduced AU hostility towards the ICC.

While this hostility is interpreted as evidence of the failure of the court, an alternative view is that the current difficulties between the two constitute the teething problems that the international justice system must face as it tries to establish itself.

Between them, the nine situation countries have produced a total of 22 cases before the court. African leaders have scant interest in the rest of the cases and are only concerned about three of them, the one against President Bashir and the two cases from Kenya against President Kenyatta and his deputy, Mr William Ruto.

The true AU grievance against the ICC is not that it is targeting Africa but that the court has dared to include African rulers among those it has sought to prosecute.

The reaction by African states, which through their own legal instruments have moved to shield African rulers from the possibility of prosecution, shows the true nature of the disagreement.

The prevailing challenges have not prevented the emergence of positive developments in Africa towards the court, including last year’s election of Senegal’s foreign minister, Mr Sidiki Kaba, as president of the Assembly of States Parties, and the election of Kenya’s Justice Joyce Aluoch as vice president of the court.

On the courtroom front, although the case against Kenyatta was finally dropped — a victory for the unremitting pressure that the AU applied to the ICC — the one against Mr Ruto, even though not without its own challenges, remains alive.

Whatever its outcome, a decision on merits in the Ruto case, rather than on a technicality as happened in the Kenyatta case, will go a long way towards institutionalising the ICC as a forum for responding to atrocities in Africa and around the world.

The ICC was established as a court of last resort, to investigate and prosecute in situations where states are unable or unwilling to do so themselves. It should be of great concern, on International Justice Day, that a civil war has been raging in South Sudan since December 2013. An estimated 50,000 to 100,000 people have been killed and there are grim humanitarian predictions, including against children, if the war is not brought to an end soon.

Although some setbacks have been experienced, the developments surrounding international justice in Africa are greatly encouraging. There is now a growing collective consciousness on the continent that atrocious crimes are not acceptable.

This is a big step forward in a continent where, only three decades ago, tyrants like Jean-Bedel Bokassa, Macias Nguema and Idi Amin had no fear of external accountability when they butchered their people.

The new international justice system now challenges that and, although still very weak, a “still small voice” has emerged which rejects atrocious crimes.

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