Khotso Molekane argues that the International Criminal Court (ICC) has neither the moral standing nor integrity on which to prosecute anyone….
Sudanese President Omar Al Bashir
International criminal justice has its roots in the trials of the Nazis and Imperial Japan after the Second World War. It is based on the belief that there are good guys who fought a good war and the bad guys who lost because they are bad.
Once the moral side has been established, the country is absolved of all war crimes it has committed. According to this narrative, the losing side lacks moral standing and therefore all their actions are punishable as war crimes. Judges are appointed do dish out the predetermined verdict. This is the reason why US leaders were never held accountable for the air bombings of the German city of Dresden and Japanese cities of Hiroshima and Nagasaki, using nuclear weapons, despite widespread consensus that their actions were classical war crimes.
The ICC is modeled on the above picture, except that there is no pretence of due process or equality before the law within its corridors.
Firstly, the appointment of judicial officers leaves much to be desired. Consider the case of Fumiko Saiga, a Japanese diplomat who became an ICC judge from 2005 until shortly before her death in 2009. Her appointment as a judge was meant to accommodate Japan as the second biggest donor to the ICC after the European Union. Unfortunately, Japan did not have a judge with a good command of any of the official languages of the court. As a diplomat, Saiga had a good command of English and was therefore given the job despite her lack of legal training and judicial experience.
After her death in 2009, she was replaced by another Japanese diplomat, Professor Oniko Ozaki, who possesed no judicial experience whatsoever. If our constitutional court orders our government to ensure that suspects extradited to countries that apply the death penalty are exempted from it, how can our constitution allow suspects to be extradited to a court that employs incompetent judges and falls far short of our expectations of competence?
How is all of the above possible? It became possible because the ICC was never intended to try Westerners. It was intended for the former subjects of colonialism. The court is the new instrument of colonialism. This was confirmed by the former British Foreign secretary, Robin Cook, who said: “If I may say so, this is not a court (meaning the ICC) setup to bring to book Prime Minister of the UK or President of the US”. Obviously this degree of honesty would not help to sell the court, especially to Africans. A more benign explanation had to be sought. It came in the form of offering protection to vulnerable Africans from their leaders. Professor Mahmood Mamdani reminds us that the History of modern Western Colonialism in the 18th and 19th century and imperialism of the 21st century claimed to be done for the protection of vulnerable groups.
The issue of Impunity
Anyone who opposes the court is labeled as a supporter of impunity. Let us examine the concept of impunity where the ICC is concerned. At the recent conference of State Parties to the Rome statute, Botswana warned African countries wishing to exercise their right to terminate their membership of the court that their actions would lead to increased impunity. What is strange about this statement is that Botswana, Nigeria and Rwanda are amongst numerous African countries that have signed Article 98 waivers. Articles 98 waivers were introduced to modify American Service Members Protection Act (ASMP Act) of 2002. Section 2007(a) of the act prohibits military assistance to countries that are parties to the ICC. Articles 98 waivers were introduced to allow countries that were members of the ICC to continue to receive US military assistance on condition that they make the following concession; the signatories of the waiver committed not to hand over to the court any American serviceman accused of ANY war crime regardless of its seriousness. ASMP Act empowers the US armed forces to free by force any US service men held in The Hague by the ICC. This Act was subsequently dubbed ‘The Hague invasion law”. As a signatory to Article 98, I struggle to understand how Botswana can preach about impunity. Article 98 waivers are the Holy Grail of impunity.
The coterie that went to court to force the Republic of South Africa to hand over Sudanese President Omar al Bashir to the ICC would not want this inconvenient detail to distract us from saving Africa.
Western countries are aware that they have no credibility in the eyes of ordinary Africans. As has been the case since the arrival of colonialists, the dirty work of selling colonialism falls on the shoulders of the modern day askaris (NGOs like Southern Africa Litigation Center).
India declined to join the court after its reasonable request that usage of weapons of mass destruction (Nuclear, Chemical, Biological and land mines) be classified as war crimes, was turned down at a gathering of State Parties. If usage of weapons of mass destruction is not a war crime, what is?
Lets now focus our attention on what the court has been up-to on our continent. The court has indicted two sitting heads of state on the continent- Uhuru Kenyatta and Omar al Bashir. Al Bashir’s indictment was based on reports collected by western backed NGOs. The ICC prosecutor and his staff indicted him without setting their feet in Sudan or Dafur. The Kenyatta case crumbled and had to be thrown out. Al Bashir remains a free man.
The trial of former Liberian President Charles Taylor had the hallmarks of a Kafkan trial. I will quote the words of the Senegalese Judge, Justice El Hadji Malick Sow who sat on the bench during Taylor’s trial: “I disagree with the findings and conclusions of the other judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the prosecution. And my only worry is that the whole system is not consistent with all the values of international criminal justice, and I am afraid the whole system is under grave danger of just losing all credibility, and I am afraid this whole thing is headed for failure.”
As soon as Judge Sow started reading his dissenting opinion, the other Judges walked out of the room and the court technician turned off his microphone and brought-down the curtains of the public Gallery. If this is how the court treats a dissenting judge what of a marked accused? Compare this with the DRC where close to four million people died in the most savage conflict since the Second World War. None of the leaders of the surrounding countries who supported different factions and even had their troops in the DRC were indicted. The reason is quite simple, they were and remain poster boys of what can be achieved if you work with the West and the US specifically.
The composition, conduct and procedures of this court stand in stark contrast to the values of our constitution. It’s either we keep our constitution or leave this court or stay with this court and change our constitution. We can’t have it both ways.