The ICC: Legitimacy and Sovereignty
Unquestionably, the International Criminal Court or the ICC as it is widely known, has the potential to be one of the most important actors in International Criminal Law. It fundamentally aims to trial and prosecute those who are responsible for crimes against humanity, like genocide, ethnic cleansing, aggression and other crimes of war. However, like the majority of human rights regimes, it has been subjected to certain criticisms since its establishment in 1997.
For many developing nations, the International Criminal Court is seen as yet another Western imperialist mission, this is no truer than in Africa, where the African Union (the AU) has hit out at the ICC by suggesting that it is primarily an “African Court”(Goldstone 2009: 1), which deals with prosecuting only Africans. This has been echoed by many African leaders including the recently assassinated ex president of Libya Muammar Gaddafi, who accompanied by his son and chief spy, were also indicted by the court for crimes against humanity in 2011, just at the beginning of the Libyan uprising.
What makes the court even more interesting is the simple fact that it can still undertake investigations into crimes of war and genocide in countries that have not signed up to it, once it is recommended to do so by the UN Security Council. The Security Council can make the recommendation if they see the atrocity in question as a threat to “regional or international peace and security” (The Economist 2011; pp 1). Unsurprisingly, this is not a rare phenomenon, and there have been instances like Darfur and Libya, where the Security Council has recommended an investigation into goings on in each country.
According to The Economist (2011), Africa is one the courts biggest critics because it provides the court with the biggest block of members at 31 out of 114 states in total. More significantly, most of the cases currently under investigation by the court are also instances of African atrocities. This has lead to a continuous debate between the United Nations and the African Union, who call for an “African Solution to an African problem”(Ibid; pp 2). In an effort to elude the ICC, the African Union merged both the African Court of Justice with the African Court of Human’s and Peoples Rights, which is now known as the African Court of Justice and Human Rights. This itself has been open to a certain amount of criticisms because the majority of global legal systems argue, “standards of justice in Africa are often poor. Courts …are packed with pliant judges keen to do their masters’ bidding” (Ibid).
Leaving the alleged indiscretions of the African Judicial system aside, one can certainly see why the African Union posits certain criticisms against the International Criminal Court. The Court, like the United Nations is highly interconnected and depended on certain nations, like the United States, China and Russia who in the past have all committed atrocities against their own citizens and citizens of other countries. I posit this question, how can the International Criminal Court really be a trusted international judicial regime if it fails to prosecute all those that are responsible for violations regardless of their status within the United Nations and the P5 (Permanent members of the UN Security Council)? If the ICC was a truly fair and just system, why were both George W. Bush and Tony Blair not indicted for their roles in the ‘War on Terror’, which was responsible for the extermination of hundreds of thousands of innocent civilians and are also guilty of the practice of ‘enhanced interrogation’ methods, which is a direct violation of the Geneva Convention of 1986.
Unsurprisingly, Justice Luis Moreno – Ocampo, the chief prosecutor for the International Criminal Court refused to prosecute George W. Bush on the grounds that the United States had not signed up to the ICC, but either was Sudan when they indicted the Sudanese President Omar al – Bashir. Once more, what we can see in the International system is what Aryeh Neier refers to as the “The New Double Standard” (1997). Neier suggests that the human rights “… movement needs to develop the argument that the promotion of human rights should not be weighed against competing concerns”(Neier 1997: pp 95). Neier’s argument is not only concerned with the abuses of the United States, he suggests other significant human rights abusers like China, Russia, Brazil, India and Indonesia. He further points out that these states are also some of the most populous countries in the world and hold some form of significance for the developed world, like either China and India’s vast export markets, which are important to the developed world for trade reasons. Neier’s argument is simple, he suggests that Western or developed states like the United States and their allies, be it economic or for some strategic one, quite often have their human rights violations ignored because of some form of interdependence, like China or India (Ibid; pp 95-97)
This hypocrisy, or ‘double standards’ as Neier refers to it is one of the central criticisms associated with the ICC and outweighs Mendes (2010) argument regarding the lack of proper structure in the African Judicial system to deal with Human Rights atrocities. Ultimately, the practice of ‘double standards’ is incredibly damaging and undermines the legitimacy of the Court throughout the international community. The argument is quite simple, how can the ICC expect to rule fairly if it only rules over a select few that do not significantly contribute to the developed world in some way or another. Unquestionably, one can see how the ICC is used as yet another tool of Western Imperialism, to impose us on the developing world.
The ICC, like the United Nations has very similar issues when it comes to sovereignty. Realistically speaking, neither institution is truly sovereign because they are both highly dependent on individual states. The ICC is not only made up of individual member states that have adhered to the court, but it also relies heavily on these member states to take any individual indicted by the court into custody.
Ultimately, I would argue that in order for the ICC to become a truly legitimate entity. It needs to become a sovereign one, free from the shadow of the United Nations and the developed world. Obviously, this would involve ruling fairly and justly to all states and not just a select few and maybe that way, entities like the African Union may be more willing to embrace it, as opposed to pulling against it.