Reflecting on the International Criminal Court’s ability to deliver justice globally
Celebrating its 15 years of existence this year, the International Criminal Court hereinafter referred to as the ICC has been one of the most controversial international institutions over the years. The ICC is founded by a document referred to as the Roman Statute of which party states, ratify and incorporate in their national law. An example of this would be the section 39 (1) (b) in the South African Constitution, 1996 which stipulates that when interpreting the law, courts must consider international law.
The ICC just like the International Court of Justice and other international tribunals or forums, are custodians of both public and private international law. As a tool to give effect to the Roman Statute and to narrow legal ambiguities, various states have created various conventions which sanction a particular conduct of a member state or state party to the Roman Statute and subsequently the ICC. The ICC therefore in a nutshell, is a forum used to monitor and safeguard human rights as per the Universal Declaration of Human Rights of 1948.
The most contentious issue regarding the ICC is its ability to deliver global justice. By global justice some legal scholars look at it as giving equal attention to all who violate the international norms of Human Rights. Other legal scholars differ by saying international law is not “must-do”, it is merely optional for a state to bind itself. Article 26 of the Vienna Convention of treaties provides that,”Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.
The ambiguity of the latter article is one example. The convention leaves space for good faith which has proved to be cumbersome and the scientific rationale is that there is an inherent conflict between national interests of a state and international obligations. The concepts which challenge the orthodox account of international law are the peremptory norms, known as jus cogens and obligations erga omnes.
This then leads to the initial argument, is the ICC able to deliver on global justice considering the above legal arguments? This is one answer which is hard to find but easy to rattle about from a legal perspective. From a political perspective, the Universal Declaration of Human Rights came after a dark period in the history of mankind, well that is at least in Europe. African countries continued to be a platform of gross human rights violations by both colonizers and the colonized. South Africa bearing a good testament as to how the Universal Declaration of Human Rights was only good on paper, went through a catastrophic period called apartheid which only saw its collapse in the early 1990s of which is also debatable.
This being the case the ICC faces a huge political challenge. The seat of the ICC raises a number of issues. The Hague is a city in the Netherlands, a country popularly known for the Dutch. The Dutch colonized parts of Africa and built modern Netherlands on the backs of those it had colonized. The crux of their development, politically and legally was through the exploitation of the African people and monopolization of their wealth and mineral resources.
With all of the above in mind how does a court situated in a country built on injustice able to deliver justice? The historical context of the political and legal spectrum does not allow. The question then rises as to, in whose interest is the ICC acting in when its seat is in the haven of injustice? Do we then play the forgive and forget game? I beg to differ.
The framework of justice is influenced by the surroundings and most importantly, the foundation. The foundation of the framework in the Netherlands is not only a problem but an impediment to justice.
Other scholars believe that, through the transformation of the officials of the court then there could be a balance of interests. This is a flawed argument. The problem with this approach is that it speaks to the flesh of the human being not the skeleton which gives it structure. Looking at the political framework concerned with the ICC it is then easy to diagnose as to why majority of its cases are focused on Africa. Paraphrasing what Professor Nuame from John Hopkins University said to me in one of our discussions, is that African states do not want to hold each other accountable and they easily rely on the ICC for justice and made special reference to the Omar Al-Bashir case in South Africa.
The problem with this argument is that it looses touch with core realities Africa as a continent is facing. The continent cannot look for solutions outside its own borders, Africans must solve their problems the African way. The ICC does not solve any of the problems but escalates them. It is against this background that the ICC cannot deliver global justice because of the inherent biases informed by the political and legal historical context.