4. Playing the ‘Devil’s Advocate’

These outbursts by the AU could be seen as a spontaneous reaction against what many African leaders increasingly perceive as neo-imperialism,[48] a view that is gaining acceptance even in scholarly circles.[49] In fact, some commentators suggest that the current international criminal law is imperialistic, given the “oppressive practices by which states may seek to redefine the world in their image, by defining a ‘universal’ in opposition to an ‘other’ – the idea of the ‘dynamic of difference’ – and seeking to bring the other within the universal by way of the ‘civilizing mission.’”[50] There may be some truths in these accusations, given the complicity in the conflicts that often results in heinous crimes and the selectivity in holding perpetrators of these crimes accountable. The current indictments, which parades virtually only African suspects at the ICC, raise credibility questions and give impression that the ICC is tool for the collective humiliation of Africa.

Reacting to those who oppose the ICC for being fixated on Africa, Annan asks: “Is the court’s failure to date to answer the calls of victims outside of Africa really a reason to leave the calls of African victims unheeded?”[51] Of course not; the fact that all the current case dockets are on Africa do not diminish the seriousness of the crimes, but they raise questions of equality before the law. As a principle that regulates the members of a society, justice should be applied on the basis of fairness and equality. Thus, when different sets of principles are applied to similar situations – when, for example, one person is condemned for an offense while the other is treated far more leniently for the same offense –, then such actions dilute not only the meaning of ‘equality before the law’, but also the fundamental principle of ‘non-discrimination’ on the basis of geography or other considerations. Truth and justice must be uncompromisable because they represent the first virtues of human society.[52] And if international criminal justice is a universal ideal, then major powers ought not to take distinctive approaches to justice that reflects their values and interests.

Africans, therefore, have a right to ask – and to receive answers to – some puzzling questions: Why are Western countries reluctant to demonstrate equal missionary zeal for justice in respect of grave crimes committed in Iraq, Afghanistan, Pakistan, Chechnya, Gaza, and etcetera? Why is Africa such an attraction as to earn it the unedifying title of “the ICC’s favourite customer”?[53]

In 2011, the Security Council quickly authorized military intervention in Libya – pursuant to Security Council adopted Resolution 1973 of 2011 – and referred the alleged egregious crimes to the OTP for investigation. Why is the Council playing a hide-and-seek game on Syria? Are the brutal massacres in Syria of less magnitude than those in Libya? Why are Western countries looking ‘the other way’ as vicious regimes in other Arab countries murder unarmed civilian protestors? What reasons, if not strategic economic interest, account for the West’s reluctance to take action against these brutal regimes? Why should “a body of law that purports to be based on universal values of all humanity … be animated by exclusions, notions of civilization, and imperialism”?[54]

The AU’s response to the referrals against some African personalities is obviously political, but it is probably informed by the politicization of the ICC itself. If the Security Council had authorised a military intervention to stop the heinous crimes in Darfur when the crisis began, as some commentators advocated,[55] it would have achieved, at least, two ends. First, the authorization would have saved many lives and sent a strong message to al-Bashir that impunity is no longer an option. Second, it would have legitimised any post-conflict measures taken to bring perpetrators of the crimes to justice. Having failed to fulfil its original UN Charter mandate, the Security Council is now using the ICC to reassert its diminished authority, as it did with the International Criminal Tribunal for Rwanda (ICTR). These after-the-fact measures do not achieve much result or appease Africans; they are like learning geology after a devastating earthquake.

Perhaps, one way of building confidence in the ICC is for the OTP to strive to initiate timely investigations and prosecutions on genuinely grave cases without waiting for referrals from the politically charged UN Security Council. As Bassiouni remarks, “it is better not to have an ICC than to have it in the service of a political body that has hardly distinguished itself by adherence to the rule of law”.[56] When the Security Council takes the initiative, it undermines the ICC’s legitimacy and undercut the argument that it is free from bias. Here is why:

The fact that the Security Council can bar ICC activities on particular situations and the possibility that the Security Council can refer situations concerning states not party to the Rome Statute can create a perception that the ICC is a tool of the stronger Western states supporting the Security Council. Since the Security Council makes these decisions based on the political calculations and tradeoffs among the five permanent members, rather than a judicial investigation of the facts of a situation by the ICC, a perception that the interests of the permanent five is the more important determinant is unavoidable.[57]

5. Concluding Thoughts

International expectations of the ICC are very high. The objective that the Rome Statute assigns to the ICC is to end impunity for the perpetrators of the worst crimes known to humanity. Attaining this objective requires the Court to conduct high-quality investigations and prosecutions, to encourage effective domestic responses to the commission of the most serious crimes of concern to the international community as a whole, to be sensitive to the needs of victims of these crimes, and to be transparent in its activities. It is vital for the creditability of the entire Rome System that the Court is able to rise to these challenges.

Notwithstanding the current face-off, the ICC should not give up its efforts to dialogue with the AU and its Member States. The Court must not assume that all criticisms of its work are done in bad faith. In any event, all stakeholder – including African States Parties – have the right to demand improvements to an institution they were integral in creating. As Max du Plessis rightly noted, “the process of changing and improving an international institution requires meaningful and engaged debate”.[58]

Finally, international institutions, judicial or otherwise, have significant roles to play in establishing humane and just social orders. It is the absence of democratic accountability that largely accounts for rebellion, conflicts, and human suffering in many states. Taking international justice seriously entails taking democracy and good governance seriously. Since there can be no true justice without true democracy, the global community has legal and moral obligations to assist weak states achieve the kind of democracy that reinforces the rule of law. And if international criminal justice is a universal ideal, then the major powers ought not to take distinctive approaches to justice that reflect their values and interests.[59] If the two global infrastructures for maintaining peace (the Security Council) and curbing impunity (the ICC) continue to work selectively, neither will advance, let alone entrench, the rule of law. Double standard diminishes faith in the project of international criminal accountability and increases anti-ICC sentiments.