Debate on the relevance of the International Criminal Court (ICC) has polarized the world and focused attention on its ever-growing list of suspects from Africa.
Critics say The Hague-based court is largely a tool by the West to target leaders of poor countries, while others see the criticism as meant to shield human rights abusers from international justice. As Sulaiman Kakaire writes, the debate is delicately poised.
For over a century the world searched for a permanent court with international jurisdiction to try individuals who committed heinous acts such as genocide, crimes against humanity and war crimes.
This was because national criminal justice systems were too weak to effectively punish such crimes – within the international criminal law (ICL).
The matter dates back to the Paris Peace Conference, at the end of World War I, and to the concept of universal jurisdiction over international crimes. Unlike national jurisdictions which respect the head of state’s immunity, universal jurisdiction does not waive criminal liability.
“Today a sitting president can face criminal proceedings. You see many leaders stay in office for so long and they commit acts that go unpunished,” says Prof Daniel Ntanda Nsereko, a judge of the ICC.
On July 17, 1998, during the UN General Assembly, 120 states adopted the Rome Statute, which established the ICC. During the UN vote, nearly 30 nations including China, Israel and the US, did not support the treaty.
But it gained popularity after 60 countries ratified it to become binding. Today the court has been ratified by 122 countries, 34 in Africa. Complementing national jurisdictions, the court tries offences such as genocide, which national jurisdictions have failed to handle.
“In order to determine inability in a particular case, the court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings,” says Article 17 of the Rome Statute.
The court has jurisdiction over the offences if the accused is a national of a state party to the Rome Statute, if the alleged crime took place on the territory of a state party, if a situation is referred to the court by the United Nations Security Council or if a state not party to the statute ‘accepts’ the court’s jurisdiction.
So far, the court has exercised its jurisdiction over eight countries – DR Congo, Uganda, the Central African Republic, Sudan (Darfur), Kenya, Libya, Ivory Coast and Mali.
As ICC continues to dispense justice, Africa has started to express discontent with the way it is conducting business. This came to light when the African Union questioned the court’s handling of proceedings against Kenya President Uhuru Kenyatta and his deputy, William Ruto.
The AU argues that the ICC is not respecting the sovereignty of African states. Some African leaders including President Museveni have sold the view that ICC is targeting African leaders. Kenya has sponsored a resolution in its national Assembly to withdraw the country’s subscription to the Rome Statute.
“I think that what we are seeing today is an expression of displeasure,” says Daniel Ruhweza, a lecturer of International Law at Makerere University.
Ruhweza adds: “They (African leaders) feel like it is a tool of Western imperialism because all the cases that have been considered by the court are coming from the African continent.”
However, others think the critics could be speaking out of fear that the court could soon come for them.
“It is true that all cases are from Africa but what is its relationship with the court?” says Justice Nsereko. “Have African states been prevented from exercising their national jurisdiction? And, how do cases reach the court?”
Nsereko points out that Africa forms the biggest block of membership (34) of the court and the cases before it come from African countries since they don’t have capacity to try individuals against international crimes.
“Of the eight cases before the court, four were referred to the court by the affected states (Uganda, DRC, Central African Republic and Mali). While two were referred by the United Nations Security Council (Sudan and Libya) and two (Kenya and Côte d’Ivoire) were begun by the Prosecutor after the two countries agreed to seek justice through such means. Who is targeting who?” he said last week.
Nsereko adds: “The ICC only comes in where the national courts have failed. It cannot try a case which is before the national courts. Let them try the cases and see whether the ICC will intervene.”
Prof Christopher Mbazira, a lecturer of Public International Law at Makerere University, argues that politics and judicial system are inseparable, a reality that can only be overcome by achieving impartiality. Mbazira further says that the ICC proceedings generally reflect judicial independence.
“The only thing to focus on is selective prosecution. And, I think that African states should engage to change the system from within rather than moving out…It is the African states that started the work of the ICC; so, they should not run away from it,” Mbazira argues.
However, some scholars say public perception is instrumental in assessing the legitimacy of ICC. “What is the effectiveness of the institutions of this court?
You see perception seems to be tilted against its legitimacy and this is why a section feels like it is applying its jurisdiction selectively,” says Kabumba Busingye, a lecturer of International Law at Makerere University.
Some legal practitioners also query the way the court considers evidence. For instance, John Bosco Kakooza, a Kampala lawyer, says the ICC practice of concealing witnesses’ identity violates the right to fair hearing.
Justice Moses Mukiibi, the head of the International Crimes division of the High court in Uganda, says section 46 of the Rules of Procedure for the ICC does not specify agencies that have the obligation of providing evidence.
This, he told a seminar last week, has impeded the operations of the court. Yet, whatever its weaknesses, the ICC’s trump card seems to be in the widely-accepted need to fight impunity that is so common in repressive regimes.
“The court deals with legality, not legitimacy. Legality is about what the law says yet legitimacy is about social acceptance. The court is about providing justice for the minority, not seeking for populism,” says Dr David Donat Cattin, a senior director International Law and Human Rights Programme at the Parliamentarians for Global Action.
In light of Kenya’s vote to withdraw from the ICC, there is a move by some nations in Africa to do the same.
Besides, the AU is contemplating to extend the jurisdiction of the African Court on People’s and Human Rights as an alternative to the ICC while other leaders including Museveni are pushing for the extension of the jurisdiction of regional courts like the East African Court of Justice.
However, Mbazira is sceptical: “With the legalities aside, who does not know the record of performance of these courts? They are weak, they don’t have capacity. Besides, even when they are to be strengthened, there is no political will and commitment on the part of the African leaders to see them function.”
The ICC, then, finds itself in a difficult situation – doing legal work but facing increasing accusations of illegitimacy by leaders whose domestic legitimacy is contentious but whose hold on power is firm.
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