THE ICC - IS IT AN AFRICAN CRIMINAL COURT?

By Imogen Reed
March 2012The

With the conviction of Congolese warlord Thomas Lubanga by the ‘ICC’ this week, many commentators have highlighted the focus on African leaders when it comes to the work of the court. The conviction of Lubanga, indicted for recruiting child soldiers, marks the court’s first sentence and follows a 10-year case. No one ever argued that the UN and its myriad organizations and decisions are fair, but the conviction marks a good time to review what the court is involved in and whether these charges of bias are valid.

The International Criminal Court was set up in 2002 by the United Nations at a cost of 100m dollars a year. Its purpose was to serve as a tribunal of last resort where justice could be meted out for figures that individual member-states were unwilling to try. In that ten year history, the emphasis has undoubtedly been on Africa with its 15 cases being from seven African countries: Central African Republic, Democratic Republic of Congo, Ivory Coast, Kenya, Libya, Sudan and Uganda. It is no surprise that Rwandan President Paul Kagame has said the court was "put in place only for African countries".

Investigations

There are seven ongoing investigations at the ‘ICC’, all of them into figures from Africa. Following investigations, the ‘ICC’ ruled in January that four Kenyans accused of crimes against humanity diring the tribal violence that followed the disputed election of 2007 would stand trial: among them presidential hopefuls Uhuru Kenyatta and William Ruto.

Arrest warrants and indictments

The first arrest warrant issued by the court was for Joseph Kony, the Lord's Resistance Army warlord who has shot to international fame this week on the back of a controversial video that went viral on social media networks.

An arrest warrant for the Sudanese President Omar al-Bashir was issued three years ago. He remains in his post as the ‘ICC’ has no power to arrest him, which is one of the factors listed as among its weaknesses. It has no power to arrest, so it depends upon states to hand over figures who have been indicted.

Libyan – yes, more African - leaders were indicted by the court during the Libyan uprising. The leader Muammar Gadaffi, his son Saif and his intelligence chief were indicted. Gadaffi senior was killed, his son is being held by forces of the new Libyan leadership with discussions about his fate ongoing, and the intelligence chief fled.

Calls for investigation

Cases can be brought by ‘ICC’ member countries, the UN Security Council and the prosecutor. In Libya’s case, the Security Council brought the referral. There have been calls for Syrian President Bashar al-Asad to be investigated by the court, including by UN officials. With Syria, there are Chinese and Russian hurdles to be cleared if the Security Council is to press for Al-Asad to be charged.

Syria is in the company of heavyweights who refuse to be party to the ‘ICC’. Security Council members China, Russia and the US are not signed up members, nor are India or Israel. Many African countries signed up straight away in 2002, giving them the right to bring cases. There are now 120 members but the fact that not all UN member-states are signatories is what made Ocampo say that he is "not the world prosecutor. I am the prosecutor of [member] states” when asked about racist leanings at the court.

This is why some who argue that the court is not biased say that in four of the seven African cases it was African countries themselves that put forward figures for investigation. This might have been because a trial would not be possible on home turf for political or economic reasons (though when you see the efforts it took for the Lubanga case, one asks whether the most efficient route was taken). They argue that elsewhere, criminal charges are pursued at home and that the remit of the ‘ICC’ is that of a last resort. For example: Pinochet’s case was handled, though not completed, in Argentina and trials arising from atrocities in the former Yugoslavia were handled by a special tribunal.

Moving forward?

The court is aware of the criticism and has taken steps to try to change its image. In June, an African General Prosecutor will take over from Luis Moreno-Ocampo; former Gambian Justice Minister Fatou Bensouda. This is in part due to lobbying by the African Union. That an African is to hold such a prominent post is good news.

Also, preliminary examinations are taking place in Afghanistan, Colombia, Gaza, Georgia, Honduras and North Korea. Though quite how Gaza qualifies for investigation is worth raising.

Many young people’s lives are ruined by adults. This might be because they are affected by atrocities by Lubanga and others like him, or their socio-economic circumstanes, like being forced to live in slums or work out how to help an alcoholic parent. The child-soldiers have now seen a degree of justice for wrongs done and for this the court must be praised. Now that Lubanga has given the opportunity for the ‘ICC’ to be seen as having some muscle, the court’s work must be applied internationally. That should include all UN member-states being party to and figures from all continents pursued by it. Only then will the court merit its name.

Imogen is a passionate advocate of justice and fair politics. When she isn't writing on such issues, she also writes on such varied subjects as how to help an alcoholic parent and other good causes.