The ICC in the shadow of double standard (1-2)
By Stephen Par.Kuol
The League of Nations can misjudge weak nations like mine but God and history will remember its judgment- Emperor Haile Selisia II (Geneva 1936)
The history of the International Criminal Justice has it that humanity has come a long way and eternally agonized under the yoke of the so called nation state since time immemorial. All we have come to know is that the beast called nation state is inherently immune by a supreme legal status known as sovereignty which it has often used as a shield against external criticism on issues pertaining to human right abuses and atrocities within its own border. Charters of all regional and international clubs including that of the United Nations have corroborated that shield. This state of affairs has imposed a diplomatic language that equates the word” intervention” even on humanitarian ground with the most loathed term in the book (interference) in the internal affairs of a sovereign state. A culture of impunity has thus developed across time and space. Numerous global attempts to liberate humanity from this odious scourge have achieved so little, so far! National politics, conflicting ideologies and divergent moral values have thwarted all efforts to attain coherent international criminal justice system with organic and functioning jurisdictional authority.
Historically, international criminal courts have been established on a case-by-case basis, as needed. From criminal tribunals in Nuremberg and Tokyo following World War II in the 1940s, to ad hoc tribunals for Rwanda and the former Yugoslavia in the 1990s.These special courts have prosecuted war crimes, genocide and crimes against humanity. Although some gurus in the field have criticized those courts as arbitrary courts of war victors against vanquished, anyone with keen interest in international humanitarian law can see the mere fact that they happened as an encouraging trend. The Rome statue that culminated in establishing the International Criminal Court( ICC) in The Hague was the boldest step along this direction because it was primarily aimed at dealing with sovereignty as a catalyst of impunity. Signed by 90 countries, this historic document was celebrated as a legal instrument that will herald victory for the powerless victims of state oppression, ushering in an era in which human rights and justice will reign and in which states will be held accountable on behalf of their citizens. Unfortunately, the Rome statue was rejected outright by the supper powers of the United Nations Security Council some of who have time and again claimed moral authority on human right issues in global fora. That debacle shocked the world to the core. This in my book as student of this discipline (International Criminal Law)has put the ICC in what I call the shadow of double standard. This straight face contradiction has exposed the cold truth that the so called international law is no body’s business in the rouge world governed in hollow of power game and mutual cynicism. No wonder some legal scholars have called it soft law!
In a very undiplomatic manner, China, Russia and the United States criticized Rome Statue on the ground that it subjects their citizens to trial outside their jurisdictions. With the ICC continuous endeavor to expand its jurisdiction, the United States has been seeking bilateral agreements with allies agreeing not to turn American soldiers on their territories over to the International Criminal Court for prosecution. Countries not signing such agreements face the loss of military and financial aides in what we call carrot and stick diplomacy. For instance, at the request of the United States, the U.N. Security Council voted 12-0 to exempt U.S. soldiers serving on U.N. peacekeeping forces from prosecution by the International Criminal Court for one year in the year 2003. U.N. Secretary-General Kofi Annan protested and France, Syria and Germany abstained in dissent. Most of the diplomats from many developing countries and human rights activists protested and maintained that the resolution was inappropriate and illegal but nothing happened to that effect. The Greek Bar Association filed a complaint with the new court charging British Prime Minister Tony Blair with war crimes in Iraq. President George W. Bush avoided charges because the United States did not sign the treaty. Using their economic and political leverage at the world stage, the super powers of the United Nations have continued to keep their citizens out of The Hague. The rhetorical question that begs for critical answer is: whose citizens deserve to be used as guinea pigs for this experimental court? Citizens of weak nations I guest! Should that be the case, then the apparent cogent is that the International Criminal Court is not just about justice, as it could have been with careful drafting of the Rome statute. It is equally about international politics and altering the balance of power. Meanwhile the concept of an International Criminal Court could and should represent strengthening of international justice and the rule of law, the devil in the details has revealed that the world is not ready for a cohesive criminal justice system free of double standard. This lack of political will makes mockery of the quest for international justice which inspired treaties such as Rome Statue in the first place.
The Rome Statute’s preamble and Articles 1 and 17 provide that states, not the ICC have the primary responsibility for bringing those responsible for genocide, crimes against humanity and war crimes to justice. In the preamble, they affirm that ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by international cooperation. Paragraph 10 in the Preamble emphasizes that the Court ‘shall be complementary to national criminal jurisdictions. This means that ICC intervenes only if the nation in question fails to deliver justice for the victims within her jurisdictional authorities. This has not been adequately practiced given ICC’s disdain on African and the third world national legal systems.
The etiological shortcoming of the international law making process is that there is neither supreme law-making body (legislative institution) for it nor central judicial authority to interpret and enforce the law. The main sources of the international law are treaties that are signed or eschewed at will.. Customary to that practice, treaties are negotiated between states on an ad hoc basis and only bind states which are parties to a treaty.
The Rome Statue like all other international treaties, only states which become parties to it have certain obligations to enforce it. One face saving argument we were charged to make along this line as diplomats of an indicted head of state during my tenure with the Sudanese Foreign Service was that Sudan is not a signatory to Rome Statue and therefore is not subject to answering anything pertinent to ICC. The premise of this argument entails that any country can choose to stay away from ICC in order to avoid accountability. A kin to that is the recent attempt by Kenya after it got herself in the hot soup of prosecution. In protest of the double standard ICC has been known for, African stat parties to Rome statue are now threatening mass withdrawal from ICC. Thank to the powerful diplomacy of the defendant states (Sudan and Kenya). The question any commoner can then ask is: Whose court is ICC and whose law is Rome Statue? My former President Omer Al-Bashir and his African cohorts in the AU called it European political court in March 2009 amidst the heat of his indictment by ICC in The Hague. That made sense to the African head of states he reminded that it was him then but it could be any of them next time around as what goes around, comes around. Human right activists and many western diplomats did not buy that fallacious argument but one salient fact against the ICC was and is still that the integrity of the court is badly tarnished by what lawyers call selective justice in prosecuting the crime under its jurisdiction. The International Criminal Court in The Hague has been operational since mid-2003, following the entry into force of the Rome Statute on 1 July 2002 but it has succeeded in prosecuting only offenders from the weak third world nations in Africa and Balkan. So far, ICC has turned a blind eye on atrocities committed by the United States in Afghanistan and Iraq, Chinese atrocities in Tibet and Russian atrocities in Chechnya.
The Rome Statute is among the most complex international treaties. It is a combination of public international law, international humanitarian law and criminal law, both international and domestic. This complexity can be simplified only by genuine inter-state cooperation which is the missing-link at the time this writing. Pursuance to Article 86 of Rome Statue, states parties to it have two fundamental obligations: the first is complimentarity and the second is full cooperation. I practically witnessed my former host country, the United Republic of Tanzania, a state party to Rome Statue violating this article by siding with an indicted offender called Omer Al-Bahir in the year 2009 and I did not blame the country for it. I personally believe that history will not record this as Tanzanian’s own failure but a collective one. Indeed, it will go down in the history of international justice as a failure of United Nations which initiated the ICC with UN the Resolution Number 260 of 9 December 1948 but miserably failed to hold its top members to account for rejecting it. This is a bizarre contradiction on the part of an international organization whose founding objectives is securing universal respect for human rights and fundamental freedoms of individuals throughout the world. Hence, the records are hereby informed that this is where UN took over from the defunct League of Nations that was abolished for flagrant failure to do just that!. As history repeats itself, the world and the humanity in all of us will have to remember the wisdom of Emperor Haile Selesia that the world must not be governed as two spheres of weak and strong if we want to ensure global justice and collective security. Otherwise, the United Nations can not fail more than this!. One’s fond hope is that the world’s supper powers will see moral reason to join the rest boarding this plane of ICC and Rome Statue en route to the world of global justice without contradictions and double standard.
The author is the minister of Education in Jonglei state, South Sudan