A joke, and not a very amusing one, among Africa’s foreign ministers according to one very distinguished member of this fraternity, is the International Criminal Court. All 28 cases brought formally by this body have been lodged against Africans.
As a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes (though not, strictly speaking, terrorism), the statute establishing the ICC became a binding treaty 11 years ago this month. Yet in a number of respects it was flawed from its conception.
One central flaw is that the United States and Israel still have refused to ratify, acknowledge or even adhere to the ICC — fearing, perhaps rightly, that the court would delight in turning its full force on politicians of both countries for highly politicized prosecutions of actions that hardly qualify as crimes within either country. Indeed, there’s no requirement at all that the crimes prosecuted by the ICC be considered crimes in the place they are committed. Quite the contrary. With this court as the only court, or certainly the court of last resort, in so many cases, it often is the only place that can fill in some yawning judicial lacunae.
Then there’s the — by contrast — trivial reality that the court can only prosecute crimes committed after the date it came into existence. (Though there is a not-inconsiderable well of horrors and the miscreants who perpetrated them to draw upon even since that late date.) And there are further caveats limiting its jurisdiction. The accused has to be a citizen of one of the member countries; the crime has to have taken place on the territory of such a country; in certain cases the entire affair is referred to the court by the United Nations Security Council. With the veto powers of the five permanent members of the Council — Britain, France, Russia, China and the United States — in play, the chances of such a referral are slim, though as we shall see not impossible. Oh, and the ICC can step in only if courts within the country in question have washed their hands of or turned a blind eye to the crime and the criminal.
So with all these jurisdictional rules tying its hands, the Court has launched investigations of issues in eight countries: the Democratic Republic of the Congo, Uganda, the Central African Republic, Mali, Sudan (Darfur), Libya, Kenya, and Côte d’Ivoire. In the first four, the countries themselves referred the cases to the court. Darfur and Libya came via the Security Council — among the rare issues that were universally horrific that no country dared exercise a veto — while the last two were taken up by the chief prosecutor of the court itself.
All of these cases, you may notice, are in Africa. As it happens, the court’s chief prosecutor now is African: Fatou Bensouda of the Gambia, a 52-year-old career prosecutor. She won particular renown for serving as lead trial attorney for the genocide tribunal in Rwanda where in a period of just three months in 1994 more than 500,000 Tutsis were massacred by Hutu tribesmen and militia. Since this took place well before the ICC was convened, a special international tribunal was set up; it conducted more than 60 trials. Bensouda’s predecessor as chief prosecutor for the ICC, Luis Morena Ocampo of Argentina, served for nine years before her arrival in 2012. During his tenure, not a single case was brought against a Latin American nation or against a single individual or organization from the developed world.
“The conviction of Charles Taylor, the former president of Liberia, is said to have sent an unequivocal message to current leaders: that great office confers no immunity,” British political activist George Monbiot wrote in The Guardian, discussing the war crimes trial of Taylor by the ICC — one of its rare and highly trumpeted successes. “In fact, it sent two messages: if you run a small, weak nation, you may be subject to the full force of international law; if you run a powerful nation, you have nothing to fear.” (He’s trying to remedy that imbalance himself via his website, www.arrestblair.org, which proclaims its sole mission is to “reward people attempting a peaceful citizen’s arrest of the former British prime minister.” To date, the former prime minister remains at liberty.)
The impunity that Monbiot — not without cause — sees shielding Western leaders from the reach of the ICC is but one of the reason a host of African governments are appalled by the operations of the ICC, which has indicted 30 people, of whom 23 are subject to ongoing proceedings. The ICC has issued arrest warrants for another 21 individuals and summonses to nine others, with five in custody, one found guilty and sentenced. One trial is pending appeal, and three others are, in a desultory fashion, now under way. “In my corner of Africa, the ICC has turned out as we feared,” sighed an African foreign minister who spoke with me. “There has been no prosecution in Syria or Afghanistan . . . What we want is a pan-African court.” In other words, if the ICC is only going to try Africans, let Africans try themselves.
The central question is one that the United States happens to be facing at this very moment — who tries whom, and where? There are those in Washington who would turn the accused Boston Bomber, Dzhokhar Tsarnaev, over to a military court as perpetrator of a war crime. But that would seem to be precisely the species of crime the ICC was created to address. There’s never been even a feint of a move toward seeking international prosecution of the inmates of Guantanamo. Not surprising, as the United States hasn’t even ratified the ICC convention.
As I suggest in my column “Global Libra” in the Spring issue of World Policy Journal, judicial systems and the courts are so vitally important because it’s there that governmental systems most directly impact the vast mass of a nation’s citizens. Yet the ICC seems — quite intentionally — to have distanced itself from these very citizens. The idea put forward by that foreign minister would be a step toward returning this judicial process more closely and more immediately to those whose interests it would (or should) serve. After all, many Western constitutions provide for trial by a jury of one’s peers. When those trying them are continents and oceans apart — to say nothing of the ethnic, linguistic, cultural and religious gulfs that complicate the geographical ones — the very system invites foundational challenges to its legitimacy, from a host of quarters.
David A. Andelman is the Editor of World Policy Journal. Previously he served as Executive Editor of Forbes.com. Earlier, he was a domestic and foreign correspondent for The New York Times in various posts in New York and Washington, as Southeast Asia bureau chief, based in Bangkok, then East European bureau chief, based in Belgrade. He then moved to CBS News where he served for seven years as Paris correspondent, traveling through and reporting from more than 70 countries. He is the author of three books, most recently, A Shattered Peace: Versailles 1919 and the Price We Pay Today.