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Is the International Criminal Court racist?

Conflict
Politics
Law
International Criminal Court

The International Criminal Court in The Hague. by Vincent van Zeijst under Creative Commons licence CC-BY-SA-3.0

David

I am sure that we can both agree that the pursuit of justice in the face of wrongdoing – especially crimes against humanity and war crimes – is at the heart of human values. The International Criminal Court (ICC) was embraced by many when it was established in 2002 for that reason.

YES: David Hoile is an African scholar and consultant at the Africa Research Centre in London. He is also visiting professor at Sudan’s International University. His latest book Justice Denied: The Reality of the International Criminal Court, was published earlier this year by the Africa Research Centre.

Many Africans supported establishing the ICC, believing that it was a court that would dispense justice without fear or favour. The ICC has spent the past 12 years proving that its critics were right. It has proved to be a deeply flawed, hypocritical and professionally incompetent institution that has done more than any American neoconservative to destroy whatever faith there may have been in the concept of international criminal justice.

In so doing, the ICC has also shown itself to be institutionally racist, deliberately choosing to focus exclusively on Africa and Africans. From over 9,000 complaints about alleged crimes in over 139 countries on several continents, the ICC decided to indict 36 Africans within eight African countries.

If the British legal system chose only to arrest and try black Britons, while ignoring crimes by any other racial group – as the ICC has done – it would be seen as racist.

Angela

The Court’s focus on Africa in its first few years is justifiable. Agreed, the pursuit of justice is a serious priority, which is why the creation of the first permanent international criminal court has been a vital step. Allegations of racism are unfounded for the following reasons.

Of the eight countries before the Court, five (Uganda, DR Congo, Central African Republic, Côte d’Ivoire and Mali) are African nations making use of the Court and requesting the Court’s intervention by using the self-referral mechanism.

NO: Angela Mudukuti is an international criminal justice project lawyer with the Southern Africa Litigation Centre, based in Johannesburg. Prior to this she worked at the International Criminal Court in The Hague and the International Institute for Higher Studies in Criminal Sciences in Italy.

Two situations – Libya and Darfur, Sudan – were referred by the UN Security Council, with the support of its African members. The case of Kenya – where President Uhuru Kenyatta, Deputy President William Ruto and Joshua Arap Sang have been charged with orchestrating deadly post-election violence in 2007 – is the only situation where the ICC’s Office of the Prosecutor acted on its own initiative, but only after Kenya was given ample time and still failed to take action to ensure justice domestically.

The ICC has other non-Africa situations under investigation, including Georgia and Colombia, and so it is working on broadening the geographical image of its docket. Egregious crimes continue to be perpetrated in Africa and beyond and justice must be done. Victims, including Africans, should have recourse to justice and accountability. The ICC is not perfect and, granted, it has limited jurisdictional powers; but where it can act, it must act.

David

The myth of African self-referrals is just that. It is public knowledge that the ICC Prosecutor Luis Ocampo made the governments of Uganda and DR Congo an offer they could not refuse: refer your countries to the ICC and we will only investigate your rebels; refuse and we will indict you as well.

The ICC is a racist court. It has only pursued Africans, in spite of allegations of egregious war-crimes committed by Europeans and North Americans – David

That is why only the rebels – such as Congolese Patriotic Union leader Thomas Lubanga, who got 14 years for war crimes in 2012 – were indicted. The ICC can simply refuse any referral. The deeply political UN referrals should have been declined.

Instead, the ICC jumped to service the Security Council: in the case of Libya the ICC provided the indictments and NATO provided the war. The referrals by the Central African Republic, Côte d’Ivoire and Mali are all seen by independent observers as self-serving both to their governments and the ICC bureaucracy.

The fiasco of ICC involvement in Kenya, with the court accused of manufacturing evidence and buying witnesses, continues to unfold. African faces here and there at the ICC will not change the simple fact that it is overwhelmingly funded by European Union states, is directed by Africa’s former European colonial powers and has emerged as little more than a racist instrument of European foreign policy focused exclusively on Africa. No Europeans will ever come before the ICC.

Angela

Questioning self-referrals is intimating that independent, autonomous African leaders and their elected governments are incapable of making legally sound decisions, which is precisely what former colonial powers like to think of Africa.

By referring situations that their judiciaries clearly cannot handle to a competent impartial court dedicated to justice and redress for victims, African leaders are wisely making use of the Court they created.

Claiming the Court is racist is unfounded. It is undeniable that crimes have been committed in Africa and the ICC is giving them the attention they warrant – Angela

Central to the work of the Court is the understanding that there are victims who deserve justice and when nations have requested the Court’s assistance in the interest of accountability that decision must be respected and action taken.

The Office of the Prosecutor follows existing evidence. The Pre-Trial Chamber of the ICC has confirmed indictments and to do that they must have the evidence. Whether by UN Security Council referral or self-referral, evidence exists and there are victims. Impunity must not be tolerated. Funders cannot ‘manufacture’ evidence required to try egregious crimes at the ICC.

Africa’s former colonial powers would want nothing more than to see impunity tear the continent to shreds and the ICC can assist in preventing this. The ICC is re-investigating British conduct in Iraq – let us see what comes of that before we assume that a Court that is only 12 years old will only ever try Africans.

David

Questioning African self-referrals is merely acknowledging that some African governments are just as prone to playing politics with the ICC as the European states that fund, control and direct it. The ICC is self-evidently neither impartial nor competent.

It is a case study in judicial corruption, highlighted by the Prosecutor trying to hide hundreds of items of exculpatory evidence from both the defence and the bench in its first case. And far from being victim-orientated, even Human Rights Watch has found it necessary to criticize publicly the ICC’s ambivalence towards victim communities.

The bald fact is that the ICC is a racist ‘court’. It has existed for 12 years and has only pursued Africans, in spite of allegations of egregious war crimes committed by Europeans and North Americans, including the deaths of thousands of civilians in NATO actions in Afghanistan. Any alleged war crimes, regardless of who committed them, can be pursued, as Afghanistan is an ICC-member state. The ICC has declined to do so.

Africa’s European former rulers are seeking a degree of political control and regime change in Africa by way of a corrupt legal façade. The question that Africans must ask is what would Lumumba, Nkrumah or Mandela have thought about this European attempt to recolonize Africa?

Angela

Mistakes in the trial of Thomas Lubanga (found guilty of using child soldiers in the DR Congo) have been admitted by all. No-one is suggesting that the Court is perfect and above reproach, but simply that claims of racism are without merit.

Criticism must be directed appropriately, so blame the politics at UN Security Council, and blame the inefficiency at the Assembly of States Parties where constructive and positive amendments to the Rome Statute could be made. Claiming the Court is racist is unfounded and too convenient in a world where we are quick to draw the ‘racial discrimination card’.

It is undeniable that crimes have been committed in Africa and the ICC is a necessary accountability mechanism giving those crimes the attention they warrant. The ICC has jurisdictional limits dictated by the Rome Statute. These legal limits prevent action against North Americans and other offenders who have not signed the Rome Statute.

I believe the liberation heroes of Africa would fully support an organization working to ensure accountability and justice for the people. Those are the principles that guide the work of the ICC. The Court is not perfect, and has a long way to go, but attempting to undermine its legitimacy with allegations of racism will take the global international criminal justice project no further.