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Africa and US worry the frayed edges of international criminal justice

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Frayed denimTwo key developments in the past month have once more called into question whether the International Criminal Court (ICC) can end impunity for the most serious international crimes.

First, the African Union's (AU) request to the United Nations Security Council to suspend the trials of sittings Kenyan heads of state. Emerging from a special meeting of the AU in Addis Ababa on 11-12 October, the request comes on the back of perceptions of ICC bias in prosecuting Africans.

Secondly, recently released Amnesty International and Human Rights Watch reports raise the real possibility that any killing of civilians by United States' drones violate the laws of war.

The United States has signed but not ratified the Rome Statute, the international law instrument that enables membership of the ICC. This means Unites States citizens involved in the use of drones that leads to the death of civilians in an armed conflict cannot be brought before the court.

Both situations threaten the mandate of the ICC to end impunity for serious international crimes, and with it threaten the project of international criminal justice.

The International Criminal Court

The ICC came into operation in 2002 with a mandate to bring to justice individual perpetrators of the most serious international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.

Following the Court's establishment, then UN Secretary-General Kofi Annan said 'Impunity has been dealt a decisive blow ... a missing link in the international justice system is now in place ... Humanity will be able to defend itself — responding to the worst of human nature with one of the greatest achievements: the rule of law.'

One hundred and twenty-two states have now acceded to the Rome Statute, including 32 African nations. China, Russia and the United States, all permanent members of the Unites Nations Security Council, have not signed on to the ICC, as well as regional powers India and Indonesia.

In its 11 years of operation, 20 cases from eight situations have been brought to trial, with just one case completed (Thomas Lubanga of the Democratic Republic of Congo was convicted for war crimes in 2012). The AU's claims of Afro-centrism seem particularly well founded when one considers that all eight situations are African, though four were referred to the ICC by the countries themselves.

African frustrations and sovereign immunity

The AU request seeks a one-year suspension of the ICC cases against Kenya's President Uhuru Kenyatta and Vice-President William Ruto. Both are facing charges of crimes against humanity in connection with the bloodshed that killed more than 1000 people after elections in 2007.

It also seeks the deferral of the ICC case against President Omar al-Bashir of Sudan, for whom an arrest warrant was issued in 2008 for crimes against humanity, war crimes and genocide in Darfur.

Under Article 16 of the Rome Statute the United Nations Security Council, of which Australia is a non-permanent member, can suspend any ICC prosecution for one year.

The Addis Ababa meeting was an expression of African frustration with the ICC. In opening the meeting, Ethiopian Foreign Minister Tedros Adhanom said, 'the court has transformed itself into a political instrument targeting Africa and Africans'. AU delegates emphasised the long-held international principle of immunity from liability for sitting heads of state, stating the Kenyan case 'could undermine the sovereignty, stability, and peace' of the country.

The AU resolution flowing from the summit further provides that no international charges should be brought against a head of state until the end of their term. This is in conflict with Article 27 of the Rome Statute, which provides that state parties waive all immunities, including for current heads of state.

United States drone strikes

A recent Amnesty report investigates drone killings of civilians in northwest Pakistan by the United States. Human Rights Watch outlines similar cases of civilian deaths in Yemen. The deaths of between 400 and 900 civilians by these unpiloted aircraft are reported within the last decade.

Both reports are careful to avoid declaring the killings violations of international humanitarian law amounting to war crimes. The lack of public information the US provides about its drone program makes a legal case almost impossible. The first recommendation of Human Rights Watch is to 'explain the full legal basis' upon which the US carries out targeted killings, including drone strikes.

Nevertheless, Amnesty concludes that the civilian deaths 'raise serious concerns' that the actions of the US may amount to war crimes. Article 7 of the Rome Statute defines war crimes as 'grave breaches of the Geneva Conventions', including wilful killing.

Amnesty calls for the US to investigate and, where there is sufficient evidence, bring those responsible for the killing of civilians to justice. As the US does not accept the jurisdiction of the ICC over its citizens, there is no current possibility to bring such individuals to trial at the international court.

Kenya is currently in the process of passing legislation to withdraw its accession to the Rome Statute and cancel its membership of the ICC. While this withdrawal would not affect the legality of the cases against Kenyatta and Ruto, it would be a major blow to the ICC's standing, especially in Africa.

Credibility under threat

Both situations highlight the fragility of international justice. The ICC is hamstrung by the perception — whether well-founded or otherwise — of targeting Africans.

The AU's pushback against ICC investigations raises the spectre of mass withdrawals from the court's jurisdiction by states of the most troubled continent on earth. Even the lesser result of Kenya's imminent withdrawal would be a blow to the ICC.

At the same time, the real possibility that the killing of civilians by US drones constitutes war crimes demonstrates the limitations of the court's reach. This further undermines the ICC's project to end impunity for the most serious international crimes. 


Nik Tan headshotNik Tan is a lawyer and former DFAT officer currently studying a master of laws at the University of Copenhagen, Denmark.

Frayed denim image from Shutterstock

Topic tags: International Criminal Court, Omar al-Bashir, Sudan, Thomas Lubanga, Democratic Republic of Congo

 

 

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Existing comments

The USA goes around like a policeman, but commits crimes against humanity which it deems itself immune to any prosecution. The USA should have no standing in the world in regard to any such activity by others. We need international laws, but everyone needs to be compliant.
Ronny Bryson | 19 November 2013


Thank you for the article. The world desperately needs this type of information .We would do well to watch any super power, as power could ultimately corrupt. The information given is vital for all. The Americans Drones, send a shiver down my spine. They could , and may be, used unethically, without our knowledge.. Their activities go unnoticed, which is quite frightening. Let us challenge America to be upfront in all military activities. They have a responsibility as a super power to be accountable to the world., to try to work towards peace. . This may only happen if other countries speak their concerns...
bernie introna | 02 May 2014


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