A few days ago, we celebrated 20 years of the Rome Statute, the international agreement that gave birth to the International Criminal Court (ICC).
Back then, it looked like a great idea; it was Nuremberg re-enacted, to stay forever. The ICC was paraded as the permanent solution to universal justice.
Twenty years later, Africa (governments, accused, condemned and victims) wonders if the hullaballoo was worth the effort, the money and the publicity.
Can the ICC live without Africa or can Africa live without the ICC? African states were at the forefront of the delegations that established the Rome Statute. In fact, you can find some of the African nuances in the Statute, such as the prohibition against apartheid, which has been defined as a crime against humanity in Article 7, inspired by the South African delegation.
Stunningly, South Africa was one of the first African countries to formally announce its intention to withdraw from the ICC. This government decision, which was confirmed by the ANC, is now under reconsideration by Ramaphosa’s cabinet.
African governments’ tumultuous relationship with the court was further crystallised by a February 2017 African Union directive, calling upon member states not to cooperate and in fact withdraw from the Rome Statute. How did it go so bad, so fast?
ICC'S MAJOR CONTRADICTION
To many, the ICC is being used as a tool against less powerful states – a majority of which are African. How could countries with veto power over ICC cases not have ratified the Rome Statute? Isn’t this a contradiction?
The most powerful nations in the world, including the United States, China and Russia, are not members to the Rome Statute yet they have a key say through the referral mechanism to the UN Security Council (UNSC), and make decisions regarding members to the Statute.
This creates an avenue for these hegemonic states to be directly involved in the ICC through UNSC referrals yet they are not subject to that same Statute. This is not new; it also happens in our modern justice system in most developing nations, where the poor and disenfranchised end up on the receiving end of ‘justice’ while the more powerful individuals often get away scot-free.
This has made the international criminal justice system look like cobwebs that catch small flies but let wasps and hornets break through.
The solution is simple and yet painfully difficult: either the powerful member states of the UNSC ratify the Rome Statute to provide some semblance of global equality and justice, or the ICC may need to completely delink itself from the UNSC, such that these states do not involve themselves in justice matters and agree to be subjects to the law and seek justice as any other state would do.
The ICC also faces a myriad of other challenges that were perhaps miscalculated when the court was designed. Evidence collection and management in countries that may be reluctant to cooperate. The issue of victims and reparation.
It is not common for a criminal court to venture into reparation. It could be a step in the right direction, but it is also a reflection of the high hopes everyone had placed in universal justice as the solution to all our local problems. Were we hoping for too much justice from just a court?
From a realist perspective, it made little sense to expect immediate and efficient justice from an international criminal court, founded on a complementarity principle, with no jurisprudence, unforeseen challenges, no history, no clear enforcement mechanisms and political interference in a politically unbalanced world.
To bring justice closer to home, the African Union has been negotiating a new agreement, the Malabo Protocol. This Protocol enlarges the African Court of Human Rights by merging it with the African Court of Justice to create a new court: The African Court of Justice and Human Rights. This new court would include a criminal chamber.
To gather enough political support and enhance the chances of getting countries to commit to this venture, the Protocol included Article 46A bis. This article grants immunity from prosecution to any sitting heads of state and other senior state officials.
Considering the nature of translational and international crimes, this is like putting up a criminal court where masterminds cannot be tried, but only the little fish, those who stab, cut or pull the trigger.
RUNNING AWAY FROM JUSTICE?
This seems to undermine the very reason for creating the new criminal chamber, but it was also the political compromise to entice countries to ratify the Protocol. It did not work, and to date no country has ratified the Malabo Protocol.
Are African states pushing for a regional criminal court to foster justice or to run away from it? Is running from the ICC running from justice or another type of domination? Has the ICC focused on Africa or was Africa used to impunity in the commission of atrocities? Have African countries thrown upon themselves a legal curse by subjecting themselves to it or is this the beginning of accountability? What happens to horrible crimes committed elsewhere?
The Rome Statute triggered a necessary but also difficult process. I look at it with a sensation of vertigo. A lot has been learnt in the past 20 years; a lot is yet to be achieved. It opened wide the rotten wound of world inequality; the uncomfortable and often poisonous relationship of justice and politics.
Too many things must change, though one fact remains valid: The Rome Statute provoked (and will continue doing so) a deeper self-examination of our approach to justice, to victims, to reparation and the complex interplay between politics, justice and peace.
Salma Khamala told me in an informal conversation just before an ICJ conference, “After all, injustice anywhere is a threat to justice everywhere.” She is right! We cannot guarantee success, but we do guarantee failure by giving up.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi