ICC heading for a fall

Desmond Davies
WHEN Fatou Bensouda, the Prosecutor at the International Criminal Court (ICC) in The Hague, addressed the London-based think-tank, Chatham House, in April, she was asked after her presentation how the ICC would react if, during its investigations in Iraq, nationals of major countries were involved in war crimes. “I will be guided by the evidence,” she said, adding that all parties in the conflict in Iraq were being investigated.

In May, Bensouda officially announced that the ICC would re-open a preliminary examination into international crimes allegedly committed by British armed forces in Iraq. A preliminary examination is carried out to determine whether a full investigation is warranted.

The prosecutor’s latest announcement came after a criminal complaint was lodged with the court in January by the European Centre for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) alleging systemic detainee abuse by UK forces in Iraq between 2003 and 2008.

Given that the alleged crimes were said to have been committed in Iraq — a country that has not joined the ICC or accepted its jurisdiction — the ICC would not have territorial jurisdiction. But because the alleged perpetrators of the alleged crimes were UK nationals, the ICC could have personal jurisdiction.

At this point the prosecutor is looking for and examining any relevant national proceedings and investigative efforts made into the alleged crimes to determine whether the case would be admissible before the ICC. The court will only step in if the UK is not itself genuinely investigating or prosecuting those suspected of having committed the crimes in question — a concept known as complementarity that is at very heart of the Rome Statute that governs the ICC.

In the Iraq preliminary examination, the prosecutor will be looking for any cases being investigated or prosecuted in the UK or elsewhere in relation to the potential cases being considered for an investigation by the Office of the Prosecutor (OTP). Finally, the prosecutor will also look at whether the case is of sufficient gravity in terms of both quantity and quality to justify further action.

In 2006, the then Prosecutor, Luis Moreno-Ocampo, decided not to open a full investigation in Iraq after a preliminary examination found that alleged crimes were not serious or widespread enough to meet the gravity threshold. However, he noted that the matter could be revisited if new evidence came to light.

Bensouda’s decision to investigate alleged UK crimes in Iraq has led to strong reactions from British politicians and military brass.

Indeed, the matter has been compounded by the revelation that the ICC is paying a British lawyer to observe the trial in Libya of Saif Gaddafi, the son of the late Colonel Muammar Gaddafi. Politicians and senior military figures were rather enraged that while the ICC was investigating alleged UK war crimes in Iraq it was using British taxpayers’ money to “fund the defence” of the young Gaddafi. The ICC’s argument is that he would not get a fair trial in his country and that he should face trial in The Hague.

This did not wash with those in the UK who felt the ICC had no right to spend money in this manner. According to The Sunday Telegraph, Rob Wilson, the parliamentary private secretary to Chancellor George Osborne, said: “The ICC should reconsider its decision to offer Saif Gaddafi what is effectively legal aid. The court’s own guidance on the matter states this support is normally available to those who are ‘wholly or partly indigent’. This does not seem to be the case with Saif Gaddafi, who comes from a hugely wealthy family and is thought to have siphoned off millions of pounds over the years.”

Wilson also told the newspaper: “Our support for the ICC’s running costs is something of which Britain should be proud, but this cannot be allowed to be a blank cheque. If the court is determined to fritter away taxpayers’ money, we have every right to consider whether the ICC is actually using our contribution to meet the aims it was set up to fulfil.”

Retired Major General Julian Thompson also waded into the argument, calling for the UK to leave the ICC. “We should have followed the American lead and never signed up to the court in the first place. This is a complete waste of our money,” he told The Sunday Telegraph.
Many in Africa who are opposed to the ICC will take heart from these arguments while the court’s supporters would be disheartened by what they could only view as unwarranted statements made in a knee-jerk reaction to the Iraq investigations. The African Union (AU) has been reluctant to cooperate with the ICC because the pan-African body claims that the court is targeting African leaders.

Many had feared that last year’s AU Extraordinary Summit on the Implementation of International Jurisdiction, Justice and the International Criminal Court (ICC), a follow-up to the AU’s Summit in May where it criticised the ICC for “witch-hunting African leaders”, would bring about a mass walk-out by African countries from the ICC. But this did not happen.

In all this, one thing that the AU itself has failed to realise is that it does not have the power to stop African signatories to the Rome Statute from cooperating with the court. This is because it was African legislatures — not the then OAU — that created laws giving the go-ahead for African membership of the ICC. Therefore, it is African legislatures that have the ultimate power to halt cooperation with the ICC.

The AU has been consistent in its critical stance against the ICC since 2009, when the world court issued a warrant of arrest against President Omar al-Bashir. At the 2009 Summit held in Sirte, the Assembly of Heads of State issued a Joint Declaration stating that AU member states would ignore the ICC arrest warrant and would not take any measures to transfer Al-Bashir to The Hague. Accordingly when Al-Bashir subsequently visited Kenya, Malawi, Chad, Ethiopia, and Nigeria he was not arrested.

The AU has repeatedly reaffirmed its stance against the ICC. The lobbying against the ICC by some African leaders has been relentless since the indictment of Kenyan President Uhuru Kenyatta, Deputy President William Ruto and radio host Joshua Arap Sang following the post-election violence of 2008.

During the AU Summit in Malabo in June, African leaders decided that an expanded African Court of Justice and Human Rights would grant immunity to African heads of state for grave crimes. But, as human rights activists point out, the principle of no immunity for grave crimes is well established in international law. The Rome Statute provides no immunity based on present or past official capacity.

Also in Malabo, the AU failed to agree on Africa’s candidate for the presidency of the Assembly of States Parties (ASP), the management oversight and legislative body of the ICC. Three candidates had been lined up from Senegal, Botswana and Sierra Leone.

The failure to select an African candidate for the ASP presidency could mean one thing: that leaders wanted to express their opposition to the ICC. African governments now find themselves in a Catch 22 position: while they don’t want to cooperate with the ICC, they could have thrown away a chance to have a strong say on how the ICC progresses under an African ASP president.

Indeed, activists argue that it is better for the AU to assist the ICC rather than try to obstruct its work.

“There is no contradiction here,” one human rights activist told New African. “Africa is the only region in the world which has not had a president of the Assembly of States Parties, therefore African states parties to the Rome Statute are arguing that this is the time for them to serve the ICC. There are states in Africa who believe the ICC is doing a good job and those who believe it isn’t.

“In a nutshell, it is not good to stereotype the entire African continent as being against the ICC. Some states have issues with the court, but some remain committed to the court. That is why, to date, none of them has withdrawn from the ICC.”

These are issues that could eventually see the collapse of the international justice system that is meant to end impunity. Indeed Bensouda’s claim about the status of the ICC, while speaking at Chatham House, arguably perhaps sounds hollow: “Whether we like it or not the ICC has become a relevant player in international law.”

But this will, surely, depend on whether the court successfully negotiates the various obstacles in its way as it strives to achieve international justice. — New African.