The fall of Tripoli has everyone on tenterhooks. From the toing and froing, between loyalists and rebels, as the last dilapidated pillar of Qaddafi’s rule begins to crumble, has us all glued to the screens. The lasting image is the monument of the defiant fist crushing the American fighter jet. But he, as well as his son, Saif al-Islam remain defiant at this moment. Crudely transmitted audio messages communicated his disdain at the interventionist NATO campaign. His son, Saif al-Islam, held a victory rally suggesting that they have ‘broken the backbone’ of the rebel offensive. The constant unknowing keeps the realists on edge while the optimists cover the avenues of the newly named Martyr’s Square in jubilation. The ICC issued arrest warrants for Col. Qaddafi, his son and their spy chief, accusing them of Crimes against Humanity.
At the same time, in the equally tumultuous courtrooms of The Hague, the final stages of former Democratic Republic of the Congo’s militia commander Thomas Lubanga Dyilo’s case have commenced. Not without its stops and starts, it is slowly arriving at its terminus. There is an obvious pattern emerging here. Many critics of the ICC suggest that the court’s focus on African countries is an example of orientalism in disguise. The former commissioner for Peace and Security for the African Union highlighted these double standards saying that the International Criminal Court, its origins in Rome, is essentially a bastion of ‘western imperialism’ in developing nations.
Indeed, the empirical evidence seems to resonate in this school of thought but such an accusation that has less to do with double standards and more to do with the ICC’s judicial infancy. The court has received correspondence from over 130 countries but as of March 2011, the Prosecutor of the Court has commenced ‘official investigations’ of 6 states, all within the African continent. One can argue that there has been a blind ignorance toward the court’s inability to indict well-documented crimes of U.S. and British military intervention in Iraq. The issue of jurisdiction comes into the foreground in which the court aims to strike a harmony between its noble commitments to an international rule of law whilst respecting the sovereignty of party states. Under the principles of complimentarity, the ‘more developed’ legal systems of the West are equipped to deal with indicting their own.
Although well intentioned, we see that the problem goes much further to the root of international law rather than just the ICC itself. Indeed, there is that paradox that Western states (as the European Union) are the largest contributors to the ICC and it would seem unusual that they would indict their own. We seem to be placed in a perpetual conflict between a commitment to equality before the law and the general sustenance of the court.
But another argument presents itself lying squarely with the rigour of international law. Our domestic conception, often infused with a strong Austinian influence of a command backed by threats does not necessarily extend to the international arena. Therefore, the problem is much more fundamental than merely being a vestige of the west. The problem seems to lie with the primitivism of the international legal system. Recently speaking with a practitioner at Doughty Street Chambers, he seemed to argue that this was a premature accusation and that given the relative infancy of the court, coupled with popular support, the court was only to go from strength to strength.
But passivity and the wisdom of time alone are not going to bolster the courts universality. Resolution of the latter, apparent double standards, does not necessarily solve the problems of the former, international laws fluidity. What are the courts doing to bring actions against non-African governments when international crimes are clearly being committed? Work needs to be done within rather than exclusively without; lobbying and campaigning governments to change their preliminary endorsements to ratification of the Rome Statute.
In an article published in an online Kenyan newspaper, The Standard, ICC Deputy Fatou Bensouda affirmed that the ICC protects rather than targets Africans. Often there is an inability from municipal courts to indict these war criminals and the ICC is seen as a safeguard to step in and protect the countries civilians. Certainly no one can doubt this as the intention of the ICC. And indeed, successful public prosecutions have been made with a compelling argument that African leaders are taking leadership in international criminal justice. But some critics suggest that the ICC exacerbates the current conflicts which are often still happening as the proceedings are taking place. Uganda’s Joseph Kony, leader of the LRA, refused a peace deal until the ICC dropped indictments against him and his comrades. Indeed, the African Union, traditionally hostile to the court, in an ad hominem attack called the prosecutor egotistical and prejudiced against Africa.
There is no suggestion that those in the great continent who commit crimes should be absolved so as to ‘balance it out’ and thus prove a point. The position is rather that we extend its jurisdiction and make active efforts to universalise the rule of law. The tribunals in former Yugoslavia are credit to the fact that it can be done. But as well as highlighting the commendable endeavours of the court, work within non-ratified states needs to be done to reassure and empower those that through the principles of complementarity, the traditional notions of sovereignty and security can be maintained.
In the case of R v Sussex Justices, ex parte McCarthy, the courts famously said that ‘not only must justice be done, it must also be seen to be done.’ The ICC needs to adhere to this by truly seeking justice wherever injustice is committed regardless of its geographical location. There is more resonance, based on the evidence, who say that the ICC is picking on African leaders. It is a difficult accusation to escape. The only resolution for the court is to expand its work. Is Africa therefore a victim of leader of International Criminal Justice? It is difficult to tell at this primitive stage. One thing is for certain, if things continue as they are, the great Continent will have legitimate grounds to vilify the court.