In 1998, when 120 countries at a United Nations conference in Rome agreed, miraculously, to a treaty that would govern the world’s first permanent international criminal court, few thought the road ahead would be easy.
The United States was opposed, as were other major powers, such as Russia and China, who viewed the future institution as a threat to their sovereignty. Although the U.S. now offers important strategic support and has facilitated ICC interests at the Security Council, it still has not ratified the Rome Statute, meaning that its citizens remain largely immune from potential indictments. This political positioning has damaged the reputation of the court as a purveyor of even-handed justice, through no fault of its own. When George W. Bush and Dick Cheney remain unaccountable for having approved torture at prison sites around the globe, people elsewhere notice.
The controversies surrounding the court heated up last month when the African Union met to vote on whether or not its 34 member states would withdraw from the Rome Statute. The move was triggered by Kenya, whose recently elected President and Vice-President both face ICC trials for their role in the violence that killed more than 1,000 civilians following the elections of 2007. Last March, both men campaigned on their willingness to face justice. Once elected, they changed their minds.
It wasn’t difficult to stir up anger among African leaders. Since the ICC came into force in 2002, every one of its cases has been from that continent. These were not capricious choices. Since 2002, many, if not most, of the world’s worst atrocities have been committed on African soil: in Darfur, Uganda, the Central African Republic and Congo.
But the apparent immunity of Western leaders has rankled, and as the Kenyan trials approached, the AU mounted a campaign using familiar language. The ICC, they charged, was racist and a tool of Western colonialism.
In angry response, Bishop Desmond Tutu instigated a worldwide petition accusing African leaders of trying to “drag Africa out of the ICC, allowing them the freedom to kill, rape and inspire hatred without consequences.” The AU backed down. Its members would stay with the court, it announced at the close of its weekend meeting, on one condition: that no ICC charges be brought against any serving head of state. Then they applied to the Security Council to defer the Kenyan trials.
Since the ICC cannot possibly accede to this demand, the standoff continues. The tribunal was created precisely to move the international criminal justice system beyond self-serving licence to a foundational structure of equality before a growing body of international law. Besides, some African dictators had a nasty habit of clinging to power for decades.
Although its members stopped short of withdrawing from the court, the African Union has dealt the ICC a serious blow. The tribunal’s first prosecutor, Luis Moreno Ocampo, may have erred in focusing all his cases on that continent, regardless of their undisputed gravity. His successor, Gambia’s Fatou Bensouda, will need to move quickly to democratize the dock.
What will remain unchanged is that the court, a judicial institution of high standards, operates within a volatile environment of international politics. These include the de facto immunity of Americans and citizens of other non-member states.
As the AU meeting demonstrated, an apparent double standard threatens the credibility of a tribunal that was more than a century in the making. This must be addressed without delay.
Erna Paris is the author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.