And How ICC Can Worsen Conflict
Gabriel C Banda
IT was eventually bound to come to this! This October at Addis Ababa, Ethipoia, Africa’s rulers gather, as the continental African Union grouping, to discuss whether their governments should continue to be part of the International Criminal Court, ICC.
The ICC has the task of helping humanity through the trial of genocide, war crimes, crimes against humanity, and the crime of aggression. While the ICC can be an important institution for the world, it has been considered partial, selective, in picking who to prosecute.
There is increasing concern that the ICC prosecution has targeted rulers from Africa while some possible offenders from other parts of the world, including the western world, have not been brought before international judicial platforms, including the ICC at The Hague.
The ICC has decided to put to trial Uhuru Kenyatta, the president of Kenya, and his deputy, William Ruto, who has already been at The Hague for trial. Kenyatta and Ruto had been on opposite sides in the national elections of 2007. They were accused of organising violent attacks on each other’s supporters.
But in March 2013 elections, the two stood together as a pact for president and vice president, and emerged winners. There are accusations that some external forces had not wanted Uhuru to be president and thus moved the ICC charge to prevent him from standing for elections and winning.
From the Kenya case, there are practical issues. How will a country function when its president and vice president are not around because they are out of the country, and on trial? The two are not convicts. How does ICC deal with sitting rulers?
The earlier reluctance of Africa’s rulers to support arrest and trial of Sudan’s Omar al-Bashir by ICC may have been more linked to potential effects of the trial on society, at a particular time, than shielding the ruler. There are many stability factors that Africa’s rulers may be considering.
Some persons consider ICC prosecutions as Made for Africa. Some persons in the West are considered, from their actions as government rulers, to have caused huge suffering of societies and humanity. They are not being touched.
While there is talk about details of crimes some persons of Africa are accused of, we hear no proper answer about why George W Bush Jr and Tony Blair have not been brought for trial before international crime platforms. George W Bush Jr, besides the 2003 invasion and occupation of Iraq, has over him some warrants issued for torture. So far, he is not being touched.
If the USA is not part of ICC, the UK still is. There seem strong reasons to consider the trial of Tony Blair for crimes of aggression over Iraq, with the deep suffering and instability that followed.
There is also need to deal with crimes that may have been committed in Libya by external and local forces fighting the Muammar Gaddafi regime. There is need to investigate the targeted killings and harming of Black Libyans and Black Africa migrants during the Nicolas Sarkozy’s French forces 2011 campaign in support of some opponents fighting Gaddafi?
And in Libya, UN Security Council Resolutions 1970 and 1973, over Libya, did not allow external governments to have troops on the ground. Yet anti-Gaddafi external coalition forces and troops from neighbours like Qatar and Sudan where on the ground fighting the Gaddafi forces. International systems should consider investigating crimes of aggression.
As in Libya and Syria, some consider the ICC as another front against some regimes targeted for change. The ICC, United Nations, and others cannot just sit by and say Africa’s governments have no reason to pull out from ICC.
And it is not enough to say Africa’s rulers are against ICC because they are thinking of escaping justice. To avoid being ignored and going into a cocoon and decline, there is urgent need to address concerns raised by critics of the ICC.
Fearing that membership of ICC has potential punishments, many may withdraw membership. Withdrawal may be a safety, protective, mechanism against possible arrest. And not all who will pull out have things to fear but may just believe the ICC has been unfair. Even clean rulers may leave the ICC.
Criticism of ICC is beyond Africa. Already, besides Rwanda in Africa, China, India, Israel, Syria, the United States, and many others do not cooperate with ICC.
Now, I believe issues are more than about ICC being partial and biased against Africa. Away from issues of leaving out non-African offenders, one believes we also must, worldwide, consider concepts of punishment and retribution and their effects.
In some situations, ICC may, unintentionally, act as an instrument fanning war, strife, and conflict. What are effects of ICC trials on conflicts and societies? And we must consider other factors like the timing of ICC action and how that affects societies.
The ICC can end up worsening a situation. The threat of ICC over members of Gaddafi’s Libya regime may have contributed to more vicious conflict. Similarly, threats of ICC charges against Syria regime members may actually harden the current armed conflict.
Whether guilty or not, there are times when some arrest, punishment or sanction, or their timing, end up causing many others to suffer, beyond the convicted persons. Many generations can be negatively affected.
In some cases, the primary objective is to stop atrocities and heal a society. Poorly applied punishment will create further problems, especially for fragile or divided societies. Instability may follow.
Yes, it is crucial to stop atrocities and their causes. But the ways of the ICC may not be the best to deal with conflict in some societies. While reigning in guilty actors, a harsh judicial retributive approach may actually worsen armed conflict. Thus the ICC may be contributing to continuation of wars, instability, and delay of ending armed conflict.
There is need to consider how proportional ICC processes and judgement are when related to various potential effects on a society. Poorly timed and executed, ICC action can lead to further suffering and disharmony.
Although not perfect, South Africa’s landmark Truth and Reconciliation process showed humankind possible ways of dealing with injustice and moving towards healing.
One’s argument is not that the ICC should not be there, but must be fair. ICC must be just. Its actions, focussed on punishment, must not cause the suffering of many others. Its concept of “justice” needs to be broader than just achieving some narrow accountability, punishment, and retribution.
The ICC can be an important international instrument for protection of basic human rights worldwide. It can help avoid biased local prosecution of opponents by those who control governments.
Those who conquer others and get into government may affect the fairness of local trials of their vanquished opponents. It is not easy for Saif Al-Islam Gaddafi to be tried in his native Libya. Thus, for fairness and basic human rights, there is need for international legal institutions beyond states.
It is important not to dismiss concerns raised about the ICC by persons from Africa and other places. It is important to answer the issues raised.
International and state systems must not be biased to prosecute or not prosecute some persons because of factors like colour, culture, religion, language, origin, citizenship, political link, social status, being male or female, and other conditions.
The international community needs to consider issues of selective prosecution, timing, and effects of ICC procedures on stability of societies. October 2013 is a turning point for Africa, the ICC, and all of us worldwide.
Based in Lusaka, Zambia, the author is involved in writing, social development, and peace issues.
– GCB September, +Thursday, October 10, 2013, LUSAKA.