ICC stance blamed for fractures
Publish date: 15 July 2019
Issue Number: 832
Diary: IBA Legalbrief Africa
Category: Corruption
It’s been another busy week for the International Criminal Court (ICC) which convicted another former African militia leader and set its sights on another. Legalbrief reports that it has coincided with fresh calls for the court to take note of objections about its jurisdiction and accusations of bias towards the continent. A week ago, it convicted Congolese former rebel leader Bosco Ntaganda for war crimes and crimes against humanity. Ntaganda was charged with overseeing the slaughter of civilians by his soldiers in the DRC's volatile, mineral-rich Ituri region in 2002 and 2003. Al Jazeera reports that prosecutors gave horrific details of victims who were disembowelled and had their throats slit during his three-year trial at The Hague. The Irish Times reports that the case centred on 2002 and 2003, when the 45-year-old former militia leader ordered the massacre of civilians in Ituri Province. 'Men, women and children and babies were found in the field,' said Judge Robert Fremr. 'Some bodies were found naked, some had hands tied up, some had their heads crushed. Several bodies were disembowelled or otherwise mutilated.' Ntaganda told the court that he was a 'soldier not a criminal' and that his 'Terminator' nickname did not apply to him. He faced 13 counts of war crimes and five counts of crimes against humanity. Prosecutors portrayed him as the ruthless leader of ethnic Tutsi revolts amid the wars that wracked the DRC after the 1994 genocide of Tutsis in neighbouring Rwanda. Ntaganda, who was born in 1973 in Rwanda, but brought up in the DRC, has been accused by UN investigators of amassing considerable wealth by running a large extortion empire in North Kivu, manning rogue checkpoints and taxing the area's many mines.
The ICC’s prosecutor has now asked judges to approve war crimes and crimes against humanity charges against a man suspected of committing atrocities in Timbuktu in Mali. Al Hassan Mahmoud is suspected of crimes including destroying cultural monuments and enforcing policies that led to the sexual enslavement of women and girls, allegedly committed while he acted as the de-facto chief of Islamic police in Timbuktu during a 2012/2013 rebel takeover of the city. A BusinessLIVE report notes that Fatou Bensouda argued that he bore important responsibility for abuses of civilians who 'were subjected to a climate of constant fear and repression'. 'In fact, all aspects of life were restricted and disobedience led to severe punishment.' But lawyers for Al Hassan said he was innocent of wrongdoing and his case should be dismissed before it begins. Defence lawyer Melinda Taylor said the prosecution had conducted its investigation 'with its eyes wide shut and failed to disclose evidence that could potentially exonerate Al Hassan. The report notes that judges have not yet set a date for a decision.
The role of the court in Africa, and the very serious need for the court to consider the concerns which were raised at Rome in 1998 is taken up by Advocate Max du Plessis SC and the University of KZN’s Christopher Gevers, who argue that while threats of a mass withdrawal have simmered for some time, there seems to be little hope of a rapprochement. They say that the fractures within the relationship of member states and the court have come about as the result of the actions and inactions of the ICC, and its supporters; and that these were general concerns African states’ had about the ICC that were present in 1998 – and which have come to be realised, for the worse, with each year passing. In the first of a two-part analysis on the OpinioJuris site, the authors examine various concerns:
Concern 1: The Office of the Prosecutor (OTP) must be impartial: To date the ICC has only prosecuted Africans. The authors point to the dispute on whether the OTP has ‘targeted’ African states, adding there is minimal consensus that the OTP has failed to pursue merit worthy cases outside of Africa; and the OTP has failed to adequately address the perception that it has targeted African states, which has compounded matters further. They point out that the Palestine situation remains stuck in the preliminary examination stage; and that a similar pattern can be seen in the efforts of the former and present OTP to ‘not-select’ the situations in Iraq and Afghanistan. They add there has been little to suggest a willingness on the part of either the former or current OTP to accede to pleas from African states to take these concerns seriously.
Concern 2: The Security Council must exercise powers consistently: This failing was most notable in the refusal of the Security Council to exercise its powers in Syria, even after 65 UN states signed a petition requesting it to do so. The authors say that over the past decade, academics have ‘fiercely’ debated the status of President Al-Bashir’s immunity. When the issue came before the ICC Appeals Chamber in 2018 the prosecutor was presented with a number of lines of reasoning from which to choose. ‘Tellingly, she settled on an argument that not only further legitimates the role of the Security Council under the Rome Statute, it grants it extraordinary power beyond it (power that it did not even ask for), by endorsing the power of the Security Council to bind a state to a treaty to which it did not accede (and did so based on an expansive interpretation of the Security Council’s powers, and the terms of its resolutions).’
Concern 3: The Trojan ‘workhorse’ of complementarity: The ICC and its supporters have deliberately sought to abandon the ‘horizontal framework’ contained in the Rome Statute in favour of a ‘vertical framework’ where it enjoys priority over the national jurisdiction. The authors argue that African states expressed a clear preference for a ‘horizontal framework, rooted in state consent and deferential to the state’s primacy of action regarding criminal prosecutions’. They add that the shift towards ‘verticality or supranationality’ would have been more difficult had its effects been felt by ‘stronger states’. Beyond weak and strong states, the gradual shift that empowers a global, largely-Western elite to ‘oversee and manage’ so-called ‘positive complementarity’ efforts almost exclusively directed at African states has unavoidable colonial parallels.
Concern 4: From ‘peace versus justice’ to ‘no peace without justice’: in 1998, African states hoped that the ICC would be ‘a necessary element for peace and security in the world’, and ‘ultimately contribute to the attainment of international peace’. However, African states have been left at the mercy of the Security Council when it came to airing their concerns about the effects of the ICC’s proceedings on peace, security and reconciliation. The authors argue that since 1998, the ‘turn to criminal law’ by human rights advocates, institutions and courts has meant that the obligation to prosecute atrocities has become absolute, as exemplified by the hard-line ‘no lasting peace without justice’ moniker that predominates today.
Du Plessis and Gervers argue that while the ICC has been ‘navigating treacherous waters’ and seemingly omnipotent actors, it has made decisions (and non-decisions) along the way which have made matters worse. They argue that ‘the journey is far from over’ – as in April 2019, Sudanese President Omar Al-Bashir was removed from office in a coup d’état. If the ICC is going to try correct its course, they say, then it would do well to learn from its own failings. Even its own supporters would struggle to resist the charge that the ICC has been acting out of self-interest. They point out that calls for the ICC and international criminal law to adopt a more modest assessment of its own ability have come from supporters and critics alike. They add if the ICC chooses to correct course, it should start with redressing its relationship with African states by taking their concerns seriously. It must also recognise that it cannot survive without the group of 54 countries which continue to provide support.
