© Springer International Publishing Switzerland 2015Andrew NovakThe International Criminal Court10.1007/978-3-319-15832-7_7
7. Current Controversies
Criminology, Law, and Society, George Mason University, Fairfax, VA, USA
This chapter will explore pressing issues facing the International Criminal Court, such as the perceived targeting of the continent of Africa and the poor relations between the Court and the African Union . In addition, the special case of Palestine will be discussed, as the Israeli-Palestinian conflict will be a source of controversy in coming years. Finally, this chapter will look at the role of local criminal justice processes in the Court’s operations, especially as to the principle of complementarity .
KeywordsAfricaAfrican UnionCustomary criminal justice Gacaca Israel Mato oput Nahe biti Palestine
7.1 The Court’s “Africa” Problem
The Rome Statute came into force during the wave of democratization and improved transparency that swept across the African continent in the 1990s; this was also the era, however, of brutal internal conflicts and state collapse as crumbing regimes succumbed to economic austerity and civil strife. In April 1999, the Organization of African Unity (later the African Union ) called on all African states to ratify the Rome Statute . However, ten years later, the African Union encouraged member states not to cooperate with the International Criminal Court because of a perceived targeting of the continent in case selection and prosecution (Mills 2012: 405). The Court was unprepared for the backlash from the African Union criticizing its involvement in Darfur, Sudan, and the imbroglio over the Kenyan election violence case. To be sure, the African Union is not a monolithic body. While some political leaders have sought to preserve their sovereignty, others have been more accepting of human rights principles. In addition, Fatou Bensouda , herself an African, may have a better relationship with the African continent than her predecessor as Prosecutor, Luis Moreno Ocampo. African delegations lobbied heavily for Bensouda’s selection in the Assembly of States Parties . The continent of Africa felt sidelined by the power politics of the Security Council ’s Sudan referral and by the Kenyan investigation, though this was less true for Libya , where Gaddafi was isolated and even the African members of the Council voted for the resolution (ibid.: 440–447). In addition, despite early indications that African countries would readily embrace the Court, they were slow to enact implementing legislation that made it possible for the government to cooperate with the tribunal and domestically prosecute the four core crimes (Bekou and Shah 2006: 501–504).
The most obvious defense of the Court’s conduct is that the continent of Africa includes several intractable conflicts, including a large, self-reinforcing conflict system that spans the Congo basin and reaches into the Central African Republic, Chad, northern Uganda, and Sudan. Besides being the site of serious atrocity crimes, the violence has also tended to weaken these states’ capacities to investigate and prosecute international crimes (Nkhata 2011: 281–282). Mendes (2010: 35–36, 168) is critical of the position of African countries that the Court is biased against the Global South and reckless as to the potential for peaceful settlement of violent conflicts in Africa. He notes that African countries were among the first to ratify the Rome Statute and in sheer numbers constitute the largest regional bloc of states parties . Five of the pending situations were referred to the Court by African governments themselves, and the situation in Kenya , the first proprio motu investigation, initially had the full blessing of the government. As for Sudan , Mendes argues that the Court showed impartiality in investigating not only President Omar al-Bashir , but also one of the rebel leaders in Darfur , Bahr Idriss Abu Garda, although the Court’s judges ultimately did not confirm the charges against him (ibid.: 44). At least 47 African countries participated at the Rome Conference, including many as members of the Like-Minded Group . Prominent among these was South Africa , a supporter of the Court, which even refused to sign a bilateral immunity agreement with the United States . Domestically, South Africa was the first African country to pass full implementing legislation, the International Criminal Court Act, to create a domestic framework for cooperation with the Court, which has served as a model law for other African countries. Nonetheless, South Africa had an ambiguous position on the arrest warrant for President al-Bashir in Sudan , joining the African Union in calling for the withdrawal of the warrant (Stone 2011: 307–308, 323–326; Clarke 2009: 72). Another prominent critic of the International Criminal Court’s African prosecutions is President Paul Kagame of Rwanda , which perhaps surprisingly is not a state party to the Rome Statute given the role the Rwandan genocide played in formulating the current international justice regime. However, Kagame had a similarly ambiguous relationship with the Rwanda tribunal. He has called the ICC a fraudulent institution created for poor African states as a form of imperialism aimed at control (Cole 2013: 15).
African criticism of the Court is not based solely on the cases on the Court’s docket, but also on the cases that the Court has not taken. The Prosecutor has had a tendency to shy away from more politically difficult cases in favor of ones that are more palatable to the major powers, and in practice this means African cases. In the world of major power politics, this may have been a prudent course for a new institution as fragile as the Court. But it may come at a political cost. Many African governments view the ICC as a hegemonic tool used by Western powers to bully states from the Global South and the indictments of Sudanese officials in particular as insufficiently sensitive to the peace process in Darfur (Reinold 2012: 1089). The African Union’s proposal to the UN Security Council to defer the prosecution of Sudanese officials pending resolution of the peace process did not even receive serious consideration, even though the Security Council willingly passed a deferral for American troops serving as UN peacekeepers (ibid: 1098). After the Security Council failed to act, the African Union’s objections centered on Article 16, the provision authorizing the Security Council to defer an investigation for a one-year renewable period. African states proposed an amendment to the Rome Statute allowing the UN General Assembly to consider a deferral request when the Security Council fails to do so. The unavoidable problem with Article 16, of course, is that it incorporates into the Rome Statute the inequitable distribution of power on the Security Council, especially through the veto held by the five permanent powers (Jalloh et al. 2011: 8–9).
In an effort to find “African solutions to African problems,” the African Union Assembly sought to empower a regional court to try serious crimes of international concern, including genocide, crimes against humanity, and war crimes, which would be complementary to national jurisdiction. The result was the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights , which would reorganize the African Court and add criminal jurisdiction to its mandate. Organized into pre-trial, trial, and appeals chambers, the African Court would be competent to try the same four core crimes as under the Rome Statute, as well as unconstitutional changes of government, piracy, terrorism, mercenarism, corruption, money laundering, human and drug trafficking, trafficking in hazardous waste, and illicit exploitation of natural resources (Martin and Bröhmer 2012: 254–257). In July 2014, the African Union Assembly adopted an amendment to the Protocol that would immunize African leaders from criminal prosecution before the proposed African Court. Article 46A-bis of the Protocol now states that “[n]o charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” Over 40 civil society groups expressed disapproval at the inclusion of immunity for heads of state and senior officials in the mandate of the new African Court (International Justice Resource Center 2014).
If implemented, the African Court of Justice and Human Rights would be the first international court to combine cases involving state responsibility for human rights violations with cases involving individual responsibility for criminal violations, distinct functions that require different evidentiary standards and enforcement mechanisms. The prosecutor would be independent and the African Court would respect the principle of complementarity. Whether the International Criminal Court would cooperate with the new institution, however, remains unanswered. Although the Rome Statute pledges to respect national prosecutions, it says nothing of regional prosecutions for purposes of complementarity . Overlapping jurisdiction could result in dual prosecutions for the same conduct and could cause states to violate their obligations under the Rome Statute, by, for instance, transferring defendants to the African Court when they are obliged to transfer them to The Hague. In addition, although the Rome Statute can reach non-member states by Security Council referral, the African Court would only bind member states (Martin and Bröhmer 2012: 259–264).
The “Africa problem” unexpectedly affected the Court’s legitimacy in the Global South among perhaps the Court’s largest and most committed bloc of states parties. Yet, the Sudan referral in particular was precisely the type of case for which the Rome Statute contemplated Security Council referral: Sudan simply had not shown good faith in negotiating over the Darfur conflict and took no meaningful steps to combat the impunity of the perpetrators despite overwhelming support in the international community (Jalloh et al. 2011: 42–43). In other words, the system worked precisely as intended. Clarke (2009) presents a more fundamental critique of the International Criminal Court beyond objections against the Rome Statute itself and the cases that the Court has selected to pursue. In essence, the international justice project as a whole casts “black” bodies as helpless victims and “white” lawyers as saviors to protect Africans from themselves, supported by large amounts of financial capital from the Global North through development aid and lending while simultaneously ignoring the abuses committed in Africa by multinational corporations, arms manufacturers, and mercenaries from the Global North. Despite considerable African support for the international justice project given the weakness of domestic legal institutions and the problem of impunity, the North-South nature of the ICC and international justice generally may tend to reinforce Africa’s subordinate position in international relations.
Though it ultimately voted against the Rome Statute, Israel was an early supporter of the International Criminal Court and actively participated at the Rome Conference. On December 31, 2000, Israel joined the United States in signing the Rome Statute (Blumenthal 2002: 593). Like the United States, however, Israel subsequently “unsigned.” Israel’s main objection is that its settlement activity in the occupied territories has been targeted as a prosecutable war crime. The Rome Statute defines “war crimes ” to include the indirect transfer of a state’s own civilian population into the territories it occupies, which could leave vulnerable individuals living in Israeli settlements in Palestine . International law has never definitively settled the question of whether the Israeli occupation of Palestine is legal, and Israel argues that it captured the occupied territories of West Bank and the Gaza Strip from other occupying powers in the 1967 defensive war, as these territories were unallocated portions of the British Mandate and therefore not legally part of any country (Levy 1999: 208–209, 239–247). The Golan Heights region along the Syrian border may also be considered “occupied” for the same reason, though Syria is not a Court member. Like the United States, Israel expressed concern over the Court’s ability to prosecute non-members and for the broad definition of the crime of aggression. Israel and its allies perceive the country to be a potential target of a political Court prosecution (Blumenthal 2002: 605–607).