THE INTERNATIONAL CRIMINAL COURT IS BIASED?

THE INTERNATIONAL CRIMINAL COURT
 

The court was established in 2002, in accordance with the Rome Statute, a treaty first adopted in 1998. Today, 122 countries are parties to the treaty -- excluding some notable heavyweights CHAMPIONS like the United States, China and Russia, which are not under the court's jurisdiction. Indeed, African countries make up nearly one-third of all ICC members, and these joined states voluntarily. 
Kenya has not yet formally withdrawn from ICC; that's pending a bill expected to be introduced in parliament this month. But even if it withdraws, ICC officials say the move wouldn't have any bearing on the Kenyatta/Ruto case since it's already in motion. In addition arrest warrant for those gentlemen wouldn't be out of the question should they become necessary.

The International Criminal Court (ICC) continues to face increasing criticisms about its purely African case docket since all 8 of its active investigations (situations) and all 18 prosecutions (cases) are against Africans. The Court’s expanding global reach and the Office of the Prosecutor’s (OTP) overall prosecutorial strategy in selecting situations and cases, has raised concerns about the legitimacy of the ICC and its ability to dispense indiscriminate justice for crimes under its jurisdiction. The ICC’s focus on Africa has prompted many within and beyond Africa to ask why it is only Africans facing international justice in The Hague when crimes are widespread in other parts of the world. 

Some have gone so far as to accuse the Court of being a neo-colonialist institution peddling a Western agenda that seeks to control African politics through ICC investigations and prosecutions. This perception of the Court held by some Africans and non-Africans alike as well as some individuals in countries where the ICC is operating should not be ignored. There is need for a stronger complementarity agenda and more substantive engagement with African leaders, civil society and victims if the Court is to be successful and effective in administering justice in Africa. Supporters of the Court, which includes most victims, see it as the only avenue to hold certain military and political leaders accountable. They know all too well that without the ICC, impunity will prevail for state-sponsored and other mass crimes. 

This author takes the view that the ICC’s focus on Africa is both necessary and appropriate. Assessing the legitimacy and fairness of ICC’s intervention in Africa requires a more detailed analysis that goes beyond the geographical make-up of its case docket. Ideally, and Africa should further this pursuit, African victims should have recourse to justice and accountability in African courts that are easily accessible to them. Indeed this is best approach to curtail the ICC’s intervention. We must not forget that ICC intervention signals first and foremost a failure of states, which have the primary responsibility to fairly and impartially investigate and prosecute crimes within their jurisdiction...

Abdul Tejan-Cole Executive Director Open Society Initiative for West Africa (OSIWA)

 The ICC has invoked its own jurisdiction in only one situation. The other situations have all come to the Court through referrals from the States concerned and the Security Council. Moreover, the ICC has declined to investigate only two situations outside of Africa. This small number of decisions provides an insufficient basis to conclude that the ICC is discriminating in its selection practices. Moreover, the ICC has crediblly asserted that its decisions have been based on the gravity of the situations..

.Margaret M. deGuzman Associate Professor Temple University Beasley School of Law

The ICC has developed a test to decide whether a situation is grave enough to justify opening a formal investigation. The assessment “includes both quantitative and qualitative considerations based on the prevailing facts and circumstances.” It particularly looks at the scale of the crimes, including the number of direct and indirect victims; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes. “A key consideration is the number of victims of particularly serious crimes, such as willful killing or rape.”

HOWEVER...,

 

For most conflicts between 2003 and 2011,  estimates of the number of civilians who have been intentionally targeted, battle related deaths in armed conflict, and internally displaced persons (IDPs) has been compiled. By using these metrics as proxies for the ICC’s gravity assessment, we can see which conflicts in this time-span have been the most severe. After taking into account the jurisdictional realities of the ICC, we find that the only non-African country that the Court can pursue in which the situation is at least as grave as that in the current ICC investigations is Afghanistan. The fact that Afghanistan is currently under preliminary examination by the Court suggests that the ICC does not have an African bias.. 

until next time....