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Thursday, April 8, 2010

Q&A on the ICC and Africa: is the criticism on the legitimacy of the Court legitimate? Part 2

Question 4: The increased dissatisfaction with the ICC from the African Union seems to be based largely on the al-Bashir indictment (please correct me if you think I’m wrong). Some ICC advocates might say that this is merely a sign of African despots guarding their future impunity, and thus, the AU criticism actually shows that the ICC is heading in the right direction – that is, going after ‘the big fish’. Do you agree with this? Also, should one differentiate between support from African leaders and support from the civil society in this regard, or do you think that disappointment with the ICC is widespread in Africa?
I think I’ve broadly answered this question within my previous answers. You are right in considering that the dissatisfaction with the ICC in Africa is largely due to the Bashir arrest warrant which has made other African leaders a little weary of ICC intervention in their affairs, without their consent. As for this meaning that the ICC is going in the right direction, I told you before how skeptical I am of the “big fish” approach, despite its apparent appeal. If you really want my opinion on Darfur, I have exposed part of it in an opinion on the Hague Justice Portal, where I comment on the recent Bashir decision. I actually have my doubts, both in international law and from a policy point of view, of the Prosecutor over-insistence on the genocide charge and his reading of the political situation in Darfur. But should the prosecutor have to “read” political situations? I put some general remarks on this at the end of question 5.
On the complexity of African support for the ICC, I mentioned previously the variety of actors involved who will all have different reasons to be dissatisfied or satisfied with the court, so I think you have a good intuition in asking this question.
Question 5: What could the ICC do to regain some of the legitimacy that it appears to have lost in Africa? (Someone has suggested that the court should expand its focus beyond Africa – might this be helpful?)
Again, I have already started to answer your question in my previous answers. Legitimacy is not this monolithic object that an institution possesses or doesn’t possess. The question makes no sense as a general question. The answer depends on who you are trying to be legitimate to. For a lot of Human Rights activists, the question of Africa is irrelevant. What constitutes the legitimacy of the court is whether it is prosecuting the crimes that these activists consider as important, be that child soldiers, or forced marriage. The same is true for victims of crimes. Generally, the Court will always be “legitimate” to some and “illegitimate” to others, depending on each person’s or group’s agenda.
Linked to “legitimacy” is the question of expectations. Depending on your expectations, your disappointment will be more or less strong. And I think this is the real question that runs through all your other questions. What are the expectations of the court, and are those expectations legitimate? In my opinion, in my cases they are actually not, and this is where perception problems arise. Indeed, fundamentally, this is a Criminal Court, not an actor in peace negotiations, not primarily a “reconciler” or a granter of reparations to victims. Of course, I’m not naïve, politics are everywhere. But it is totally different to acknowledge that the ICC is one actor in a complex international political scene, and another to want to “import” international politics within the workings of the court. For example, is it really the role of the court to prosecute both sides to a conflict? I’m not sure. More broadly, should the situations investigated be equally distributed across the globe? Again, I don’t think so. Defenders of the ICC have created in my opinion too many and too high expectations of what the court is and what is should and can do, and for me this, correcting these incorrect perceptions  is the first place to start before dealing with the actual question of legitimacy.
Of course, moving back to more pragmatic considerations, and I’m sorry if my previous remarks are too theoretical for the purposes of your article, if the ICC does move to other parts of the world, it will obviously help its case in relation to this criticism. And as I mentioned before, this could happen both in Columbia and in Gaza. But one musn’t forget one important thing: the prosecutor is dependent on the fact that States must have signed and ratified the Statute. And the fact remains that the African continent contains, after Europe, the biggest number of State parties, and there are indeed a lot of crimes being committed there that are within the jurisdiction of the court. Other situations in the world would require a Security Council referral, but this is beyond prosecutorial policy and the power of the ICC as an institution. It is not really fair that the ICC should receive the criticism that should be aimed in fact the at the Security Council.
Question 6: The question of crimes of aggression is up for debate later this year. According to the Daily Telegraph, there has been talk in Britain about whether an agreement upon this crime opens the possibility of an indictment of Tony Blair. I know it is probably unlikely that an agreement would have retroactive effects, but even leaving that aside, is it not unrealistic that we will ever see Western leaders appear before the ICC (perhaps this also goes for Western soldiers, given the OTP’s refusal to go after British soldiers in Iraq)? If so, does this make the ICC vulnerable to charges of a ‘Western bias’?
In relation to aggression, you are right to point out that even  if there is an agreement on the definition at the Review Conference in Kampala later this year, it will in any case not apply retroactively.
As for the likelihood of seeing western leaders and soldiers being prosecuted at the ICC, you are probably right. But again, I’m not convinced about the “western bias” argument. The Iraq situation is quite specific, and there is no doubt (in my opinion) that the invasion of the country by the US and UK is an aggression under international law, and that specific war crimes have been committed. But most situations where western soldiers are involved are less ambiguous humanitarian or UN operations. There are often isolated cases of war crimes, but rarely the widespread situations of crimes that we all expect the ICC to deal with. Calling the fact that the ICC will more likely prosecute a perpetrator of crimes against humanity in Africa rather than a western soldier who committed a rape a “western bias” is just misplaced political correctness. Moreover, soldiers of western states are more likely to be prosecuted nationally, thus triggering the principle of complementarity. But it is totally disingenuine to use legitimate outrage about Irak to generalize on “western bias”. The fact is that in most cases, the widespread and systematic crimes that affect world peace will not be committed by western leaders and western soldiers.
Again, there is the specific situation of Irak and you mention the Prosecutor refusing to prosecute british soldiers. But this decision does make sense in the context of the ICC. For one, for reasons of jurisdiction, the prosecutor could not look at aggression. Second of all, he could only look at nationals of State parties, given that Irak is not a State party. With this in mind, the prosecutor did acknowledge that there was evidence of some cases of war crimes from british soldiers (based also on evidence provided by the British MoD), but that there was no evidence of a widespread commission of them by british soldiers and therefore decided not to pursue the investigation. Beyond the general issues with Irak, would it really be understandable that so much money be spent to prosecute these crimes (however reprehensible they are) when other situations legitimately deserve more attention, particularly applying the big fish theory? 

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