A Crisis of Legitimacy at the ICC?

28th Nov.
The Chat

Ever since the collapsed prosecutions of Kenya’s President and Vice-President, the International Criminal Court has faced growing criticism that it seeks to solely trial Africans. Now, South Africa is threatening to withdraw, and Russia and the Philippines have publicly cut ties with the court. The BTP team discuss how the ICC has managed to court such controversy and what it can do to stem a potential wave of walkouts from its member states.

7 Mins (1703 Words)

Albane de RochebruneMark, Charles, it has been a rough few weeks for the International Criminal Court (ICC). First of all, I want to ask you if you believe there can be any peace without justice?

Mark PurseyYes, It’s been proved on many occasions. You just have to look at Northern Ireland where key individuals involved in the civil conflict, with allegations against them, have not been brought to trials purposely in order to ensure peace and reconciliation takes precedence. There are people on both sides of the government of Northern Ireland who would like to see some - at the very least - questioned for activities that happened in the past. And yet some are there today in prominent roles in the Northern Ireland Executive.

That was done intentionally in order to ensure that peace, reconciliation and unity prevailed. Similarly, in South Africa an active and quite controversial decision was made at the time, back in the mid 90s after the end of apartheid, not to prosecute those coming forward and telling the truth before the truth and reconciliation commission over their actions during the apartheid years. That was a conscious decision to go through a reconciliation process – a restorative rather than a court-based disciplinary justice approach - to ensure peace and unity came first.

Charles AnglinI agree with everything Mark said. But for me, what you’re asking is almost a philosophical question and you first have to ask yourself what you mean by justice. I’m not entirely sure that the international justice system we have set up at the moment leads to justice, so much as a process for finding someone, anyone, to blame. I think that this approach - trying to find someone to blame and on whom to pin all the sins - of often very complex and intricate political situations, is actually the problem itself. So I’d rather say that it’s the pursuit of this very narrow definition of justice, which actually undermines stability and peace.

AlbaneI get your point. Still, it’s more than understandable for a victim who was – for example - raped multiple times in atrocious conditions - to be calling for punishment of the perpetrators in a court , surely.

CharlesI think that’s right, but I don’t think that requires necessarily an elaborate and expensive system of international justice. It’s the question of restorative justice at a local level and spending in institutions locally that are able to do that. I think that Rwandans with their “Gacaca” courts showed the world how that can be done at a local level, while also ensuring peace. So, I don’t think that a multi-billion-dollar court in The Hague in an elaborate building the only answer.

MarkThat example that you give - it’s the difficulty you would face with any decision that is made not to have primarily a court and trials and prison-sentences-style justice system to address any former conflict. Again, looking at Northern Ireland, you know there are hundreds or perhaps thousands of families in Northern Ireland who would in some cases still want trials to take place of those they believe - or have accused of - murdering or injuring their loved ones. For right or wrong this decision was taken to not go down that route and instead go down the route whereby peace and reconciliation would be achieved. The decision was taken because of the likelihood that that method would ensure peace and stability in the future. We could all argue whether it was right or wrong, but I think the proof demonstrates, certainly in Northern Ireland and South Africa (similar processes in many ways) that for them it has worked.

AlbaneRegarding South Africa, The Gambia and Burundi’s decisions to leave the ICC, what do you think are the real reasons behind these decisions?

MarkI think the real reason behind it is firstly politics – but not reasonable politics. What these countries and many other African nations thought they had signed up to was an organisation that would assist them in dealing with justice and judicial matters. Instead what they got was an organisation that they believe interferes in their sovereignty and their own self-governance; paid for by mainly European countries, who African governments see as using the ICC as a vehicle through which to conduct foreign policy and wield power in Africa. Some of these concerns are, somewhat provable in fact, and in these instances several African nations can be said to hold quite understandable grievances that make them want to leave.

An important point to make, is that when a case is brought before the ICC- despite the court being based in The Hague – it is not automatic that a trial must be held in this city in Europe. For any intervention that the ICC makes, it has a whole range of potential ways to deal with that decision. For instance, there is nothing to prevent the ICC in principle from conducting trials in another country or continent, such as in Africa; neither is there anything to prevent the ICC in principle in making the decision to assist local courts to oversee trials by increasing their capacity and supporting them. The International Criminal Tribunal for Rwanda – a predecessor international court to the ICC sat in Arusha in Tanzania. In many ways the ICC have done themselves a disservice insisting that people are arrested and dragged out of Africa and put on trial in Europe. That perhaps alone has been their biggest mistake; both the perception and the reality of seeing solely African men on trial in a courtroom in Europe.

CharlesI think that’s right. The optics of that have been terrible. The ICC has been extraordinarily insensitive to the very legitimate concerns that have been raised. Part of the problem as well is that there was a great deal of hope and expectation that under Fatou Bensouda - an African attorney general- the ICC would take a more sympathetic and more nuanced approach.

African countries in particular have been badly served by the way the court itself is structured. Either the prosecutor opens an investigation or a Government refers itself or the UN security council can refer a Government. What the effect of that is, because of the “political order”, virtually no other continent in the world is exposed to such a pressure to go to the court. All the other key areas have got much more proactive mechanisms to protect them from the court. In Africa, it is the reverse; former colonial powers who retain a strong interest in their former colony - like Britain and Kenya- strongly push cases to the ICC.

There is a sense of frustration and a real sense that they are being done wrong by an international community who are firstly not even members of the court. Secondly, they have ignored repeated concerns and requests for change by the ICC for a number of years. This has made this exit inevitable for a very long time.

AlbaneWhat would be your advice as a communications specialist to Fatou Bensouda?

MarkFirstly, don’t feel it is a weakness to drop cases, especially legacy cases that you were given by your predecessor. As we can see they hold endless communications traps; a lot of these cases also appear to be somewhat unsound. Secondly, move forward very fast to find cases in other parts of the world. Show that your remit is wider and communicate that you are doing that. Thirdly – while doing so, refrain from threatening elected leaders for their activities in their own countries – as happened with in the Philippines recently. The ICC Chief Prosecutor publicly warning an elected national President might for a good, quick headline – but in the longer term it only pits the court against democratically elected leaders holding a popular mandate that the ICC does not; there is only one consequence of that, which will be that the court won’t win, with the potential that more countries abandon the court.

CharlesYes, I am broadly in agreement with that! Don’t pick fights you can’t win, which they have been doing repeatedly. It’s not just cases they can’t win, but they start arguments they don’t need to have. The ICC should attempt to listen more to the concerns of its State Parties, not least when their concerns are heartfelt and serious; the court should not assume that those problems are just smoke and mirrors to get out of a case. There are legitimate questions that have been raised and need to be addressed. Some of the very simple things that Mark mentioned earlier, like holding trials in Africa, would potentially make a very significant difference. And certainly, if you were to see indictees who are not black and African on trial in the foreseeable future that might go a very long way to soothing African concerns.

AlbaneAlso, it seems to me the ICC has a structural problem of political legitimacy. I mean justice is built through political will and I must say that the ICC’s distrust of some of its members questions its legitimacy.

CharlesYes, it goes back to that question “what do you mean by justice and who decides what justice is?”.  The very central issue is, who decides which countries should have a non-court based reconciliation process like Northern Ireland and South Africa? Or for instance, like the process that we’ve seen emerging in Burma, where their former military dictatorship which has ethnically cleansed, committed genocide and used mass rape as a systematic tool of warfare has been defeated – yet no one has been put on trial.  They’ve been left in place in a kind of a shadow government in partnership with the newly democratically elected administration. So, who makes that decision? Clearly the decision making is political. And if the court refuses to recognize that and refuses to recognize that just as it is shaped by the political realities forced on it by countries who are not its members, like Russia and the United States, how much more aware should it be of the political democratic realities of countries that are its members?

AlbaneThank you so much Charles and Mark, I think that is an excellent question to end on.

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