The ICC – A Natural Progression
JANE DUNDON

The focal article highlights how the objections of African states towards the ICC are poorly founded. Here I will further the argument that there are few signs of bias emanating from the ICC and furthermore, due to the short life of the court, (created in 2002, holding its first trial in 2009), it is still in its developmental period. Substantial work on procedural, technical and content issues – as well as implementation of the Rome statute into domestic law (Goldstone, 2009 : 20) – lies ahead. Yet less than three years since it has been operational, the outspoken objections could be interpreted as a symbol that the ICC is already being taken seriously[1].

The court faces a difficult challenge of maintaining its non-bias, independent, non-politicised role, and assuring that it remains consistent with its fundamental principles of complementarity (court of last resort).  Complementarity, as well as questions over the court’s jurisdiction has been widely debated, and can act as a source of contention for non-members (Fairlie, 2011: 529).

Despite broad support from African nations in its early years, The ICC’s relationship with the continent has been uneasy. The dominant feature of the ICC, which ensures the institutions success, is its reliance on other states to cooperate and fulfil their obligations under the Rome Statute (Fairlie, 2011: 545). The ICC however has generated much opposition in both the African, American and Arab world. Here I will develop the issue of Africa’s objections as outlined in the focal article.

Among the principal protests put forward by African nations is that the African continent has been unfairly targeted by the ICC. This has led to the criticism that the ICC symbolises a new form of western imperialism that engages in politicised decisions or impinges on the sovereignty of nations (Goldstone, 2009: 7). In addition, it has been argued that the activities of the ICC can hinder efforts in conflict situations to broker peace, can contribute to prolonging the conflict, or may even discourage a leader from stepping down (such as in Sudan or Libya) and it has been suggested that the ICC has failed to understand the nature of the conflict in Africa (Goldstone, 2009: 3).

Some of these criticisms are understandable, though are essentially weak. As pointed out in the focal article the continent is the scene of all cases currently being investigated. Out of the seven cases currently being investigated, three have been voluntary referrals, two were referred to by the UN Security Council, and two have been initiated by Moreno-Ocampo – the ICC prosecutor. Only recently in the case of Cote d’Ivoire (2011), and Kenya (2010), has the prosecutor made use of his proprio moto powers to initiate an investigation.

At the same time the ICC’s prosecutor’s office is reportedly analyzing a number of other situations on different continents including Afghanistan, Chad, Colombia, Georgia, Guinea, Honduras, Nigeria, the Occupied Palestinian Territories, and the Republic of Korea, and has concluded investigations into Iraq and Venezuela. While it still remains true that the only ongoing cases are involving African states, this geographically widespread preliminary analyses indicate that the suspicion of an ICC-continent specific agenda is most likely untrue. Furthermore due to the small number of cases and the short life of the court –  having only begun its first trial in 2009 – it would be premature to presume any consistent trends of bias.

Much of the resentment towards the court comes from leaders who have either been accused of grave crimes or who fear the possible repercussions it may have for them (Kagame, Mugabe, Al-Bashir). Promoting an anti-ICC sentiment is the closest that some of these leaders may get to saving themselves from prosecution. Furthermore efforts to demean the ICC are a clear illustration of a growing perception that the court presents a real threat. It seems logical that a leader possibly guilty of the aforementioned crimes, will be unsupportive of a body that is likely to end the impunity they may currently hold.

The focal article points out that the standards of justice in Africa are often poor and that any regional attempts to  create a regional system of African justice have failed. Post-colonial Africa has been and continues to be plagued by authoritarian rulers that pay little respect to the rule of law and enjoy the benefits of impunity. The African Union, as well as SADC, have a notorious reputation for failing to speak out against well-known atrocities, for instance in Zimbabwe (Goldstone, 2011 : 25).

In addition several of the recent chairpersons of the African Union (AU) include Gaddafi, Kikwete, Obiang Nguema Mbasogo who have a reputation of  involvement in either corruption or human rights violations. Ellis accurately describes the remaining culture of impunity in Africa, ‘The failure to deter gross violations of international law is not the result of the absence of law, but rather of a failure of political will to curtail these violators’ (Goldstone, 2009 : 25).

As the focal article notes, many ‘African leaders appear ready to protect their erring colleagues from the law in case they may one day need the favour returned’. In addition the AU has recently been showing increasing signs of fracturing which make the argument for an African response to an African problem weaker. It is precisely for these reasons, such as were reflected in the cases of Zimbabwe, and currently regarding Al-Bashir, that the ICC can act as an important institution for Africa.

The authors ending remark that in fact the ICC may yet prove to gain a strong position, seems to be an accurate estimation of the course the ICC is on. Disapproval and non-compliance with the Rome Statute by the AU and many of its members have undermined the court. However, overall it appears that the continent is increasingly cooperating with the ICC and as noted, South Africa and Botswana have recently said Al-Bashir is unwelcome in their countries.

In addition, a controversial ruling in November in Kenya, ordered the government to arrest Sudan’s president al-Bashir if he stepped foot in Kenya again. Furthermore two new members from the continent have ratified the Rome Statute, Tunisia and Cape Verde while the new government of Egypt has expressed intentions to ratify it also. In another sign of increasing cooperation, Mali has momentously become the first African state to agree to imprison ICC convicts.

In conclusion, the ICC has not yet developed to the level whereby impunity is rare or getting cooperation is easy task, however it appears to be going in the right direction. Leaders worldwide, and perhaps even firstly in Africa, may be quicker to think twice in the future about committing such atrocities such as genocide, in light of seeing the possible future consequences that can result from such behaviour.