ICC or UN Double Standards?

In July 2009, the African Union (AU) announced that it would not cooperate with the International Criminal Court (ICC) in arresting the President of Sudan, Omar- al-Bashir. This decision followed the ICC arrest-warrant for al-Bashir on charges of crimes against humanity and war crimes in Darfur. Several AU leaders, including Libya’s Omar el-Gaddafi and Rwanda’s Paul Kagame, claim that the ICC is placing undue focus on the African continent while neglecting human rights violations in places like Gaza, Tsetsenia, Iraq and Afghanistan. They also claim that the ICC’s search for justice undermines the ongoing efforts for peace in the Sudan region. These claims were reinforced when the ICC Appeals Chamber decided to renew the possibility of a genocide charge against al-Bashir and the Court’s new investigations into alleged human rights violations in the Ivory Coast, Kenya, Guinea and Nigeria. However, the question is whether these accusations are justified. One might consider that it is in fact the UN Security Council who’s applying double standards and not the ICC.

The jurisdiction of the ICC is based on the principle of complementarity. In other words, the ICC only has jurisdiction when a domestic legal system is unable or unwilling to deal with an international crime. The statute of the ICC provides that the Court can only exercise jurisdiction if the alleged crimes took place on the territory of a state party, when the accused is a national of the state party, or when a situation is referred to the ICC by the Security Council. Furthermore, the Court can only exercise jurisdiction with respect to crimes committed after 2002. Another important provision is that high-ranking state officials do not enjoy immunity before the ICC.

To date the ICC has only brought cases against African residents from Uganda, the Democratic Republic of Congo, the Central African Republic and Sudan. The first three countries are all parties to the ICC and have referred the cases themselves as a result of their domestic inability to prosecute the suspects. Thus, the principle of complementarity has been relevant in all three cases. Sudan is not a party to the ICC. The Security Council referred the Darfur case to the ICC after a UN investigation. Similar to Sudan, the United States, Israel and Russia have not ratified the ICC Statute. Thus, the only way for the ICC to bring cases against persons from these countries would be through action by the Security Council. This of course will never happen as long as the United States and Russia remain permanent members of the Security Council with their exclusive veto rights. Therefore, African leaders should not blame the ICC but rather the UN where double standards are deeply rooted, especially within the Security Council. The ICC is an independent and impartial Court. Its role is to apply the law wherever and whenever it can. The African cases are merely an illustration of the ICC’s narrow jurisdiction and not its misuse of indictments.

Paulo da Rosa