LAST week Kenya became the latest country to be placed in the spotlight of the International Criminal Court (ICC) reports Stephen Wager.
As Kenya took a giant step towards a brighter future, heralding a New ‘Liberal’ Constitution, standing tall, clapping freely amongst the rejoicing crowd stood the controversial figure Omar Al Bashir, President of Sudan. Vividly the world saw the two contrasting faces of Africa: Hope and Suppression. Why does such a scene epitomise the failings of the ICC and the world’s ‘perpetual’ drive for ‘justice’?
Omar Al Bashir has ruled Sudan with an iron fist since coming to power in a coup in 1989. When he seized power, Sudan was in the middle of a 21-year bloody civil war between north and south which would claim the lives of over 2 million people. In 2005, he oversaw the peace negotiations that put an end to the devastating war. Unfortunately, however; conflict in Sudan would rage on until January 2010, this time in West Darfur.
It was yet another 21st century conflict that disrupted Africa’s unity and stifled Sudan’s broad development. A conflict based along significant ethnic and cultural divergence, the United Nations has accused pro-government Arab militias of a campaign of ethnic cleansing against non-Arab locals, predominantly black Christians. Some 2.7m people were forcibly removed from their homes during the six-year conflict and the UN states about 300,000 have died, although some NGOs believe the figure could be as much as 500,000.
For years many western countries; though more poignantly the ICC, have accused Al Bashir of organising war crimes and crimes against humanity and as such he should be brought to trial in The Hague. It is argued that he played a crucial role in backing and funding the brutal Arab Janjaweed militia and therefore in human rights terms, he, as leader of Sudan, must be held accountable to the resultant violence. Three arrest warrants have been issued by the ICC, the latest one charging Bashir on grounds of genocide – the most grave and serious human rights abuse.
As damning as this charge is in reality, it will make little practical difference on the ground. Indeed, Mr Bashir has not been arrested yet for the two lesser charges because there is no one to arrest him.
Theoretically according to Article 17(1) of the Rome Statute- the complementary principle- which states that the ICC will not have jurisdiction over crimes “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”, the ICC can legally enforce Al Bashir’s arrest. However, aligned with the most obvious flaw of international justice mechanisms, the ICC has no Hobbesian, coercive police force to arrest Bashir and thus relies on interior forces (not going to happen in an authoritarian state) or ratified member states of the ICC to arrest charged individuals.
Kenya, as a signatory to the treaty which set up the ICC, was legally obliged and urged by many within the international community to arrest President Bashir. Its emphatic failure to do so has in essence made a mockery of the ICC and collective justice, whilst deepening the wounds of victims seeking and relying on accountability and retribution. President Obama said he was “disappointed that Kenya hosted Sudanese President Omar al-Bashir. He added: “In Kenya and beyond, justice is a critical ingredient for lasting peace.” One prominent scholar rendered the ICC “ineffective, irrelevant and full of hypocrisy”.
Nevertheless, it should be remembered that the ICC is a fledgling international organisation. The 8 years since its creation has seen its membership increase from 39 to 110 states: A positive evolution in itself. In principle it represents a symbolic and legal confrontation to the inhumane of this world and despite its obvious shortfalls – it remains the only feasible hope Darfurians and other victims of genocide have in bringing those mostly responsible to justice. The ICC serves a practical purpose by raising the profile of crimes against humanity, stigmatizing and shaming those leaders most accountable and it should isolate Mr Bashir, reducing the range of his contacts and sources of support. Theoretically and optimistically the ICC is a platform to world justice.
If the international community could demonstrate a greater unifying vigor and translate words into action the ICCs power and influence would simultaneously increase and equally it would be seen as a potent deterrent to tyrants. But this is no more than an idealized hope, remaining ignorant to the fundamental historic trait of global politics: national interest. The whole system relies on each nation-state to work for each other; it collapses in integrity and resolve if one fails to act, like in a domino effect. The longer Bashir remains free to defy the ICC, the more the credibility of the ICC drains away and with it the cause of international justice.