There’s no need to spin the facts that have destroyed the ICC’s legitimacy

THE recent decision by South Africa, an International Criminal Court member state, not to enforce an ICC arrest warrant for President Omar al-Bashir of Sudan while he was at the 25th African Union Summit in Johannesburg was a disaster for the ICC’s credibility.

The AU Heads of State and Government met from June 14 to 15. Bashir arrived on the evening of June 13 as planned and left shortly before midday on June 15.

The heads of state had concluded their business. Several presidents had already left, some having departed the previous day. Bashir left as scheduled. He had been guaranteed immunity from prosecution as a sitting head of state, immunity that had been gazetted some weeks before the summit.

The South African government had clearly thought long and hard about the issues before it and chose to make its position with regard to the ICC crystal clear. It would not co-operate with or assist the ICC. In so doing, it echoed several unanimous AU summit resolutions and similar refusals by several other African ICC member states to act on arrest warrants seen as being deeply questionable.

Those at the head of the ICC have, however, continued to display what can only but be described as delusional behaviour.

ICC chief prosecutor Fatou Bensouda, for example, claimed in a statement to the UN Security Council at the end of June that Bashir had made an “unanticipated and premature departure” from the 25th AU Summit in South Africa and this exit demonstrated that the ICC remained a potent instrument of justice.

This was an all-too-clear attempt to put a positive spin on Bashir’s ability to travel to and depart from South Africa.

The ICC is either still unaware of exactly how discredited the institution is within Africa or it is continuing to turn a blind eye to that reality. The fact is that the billionEuro-plus ICC industry is fighting for its life. The blame lies largely with itself. There is no need to spin the simple facts that have destroyed the legitimacy of the International Criminal Court.

Bensouda also spoke of the ICC’s commitment to “independent and impartial justice”.

Instead of pursuing those guilty of war crimes and crimes against humanity without fear or favour, however, it has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states.

The ICC has instead chosen to focus exclusively on Africa. Despite having received almost 9 000 formal complaints about alleged war crimes in at least 139 countries, the ICC has chosen to indict 36 black Africans in eight African countries.

African heads of state have understandably spoken of “race hunting”. While the ICC’s key first two cases were African “self-referrals”, it is now clear that the African governments were made a Godfather-esque “offer they could not refuse”: refer your country and we will only indict your rebels – if not we will indict both government and rebels. A court is also only as credible as its independence. Far from being an independent and impartial court, the ICC grants special “prosecutorial” rights of referral and deferral to the Security Council – that is to say its five permanent members (three of which are not even ICC members). Political interference in the ICC was thus made part of the court’s founding terms of reference.

Africa is always being lectured to by Western countries about democratic deficits. The ICC would seem to be party to the mother of democratic deficits – three non-ICC signatories trying to force other nonsignatories such as Sudan and Libya to accept laws to which their people had also never consented.

It also goes against elementary international law – no country can be bound by a treaty to which they are not party. The ICC is inextricably tied to the European Union, which provides over 60 percent of its funding. It is time that Bensouda, the International Criminal Court and the broader international human rights industry realised that African concerns about the double standards, structural failure and procedural miscarriages of justice that have come to define the ICC are legitimate and well founded.

Dr David Hoile is the author of Justice Denied: The Reality of the International Criminal Court, a 610page study of the International Criminal Court published by the Africa Research Centre. The book is available to read or download at www.africaresearchcentre.org. The author can be contacted by e-mail at africaresearchcentre@gmail.com