Searching for the justice: The ICC and war-crime indictment

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It is hardly a secret that in many African countries today, the name, ICC (International Criminal Court) is received with some degree of scepticism. One of the reasons for the negative perception amongst Africans is not unconnected with the fact that Africans top the list of individuals indicted by the ICC.

The list is endless….Omar al-Bashir, Uhuru Kenyatta, Charles Taylor, Jean-Pierre Bemba, William Ruto, Charles Blé Goudé, Muammar Gaddafi, Saif al-Islam Gaddafi, Laurent Gbagbo, Simone Gbagbo, Joseph Kony, Dominic Ongwen, Bosco Ntaganda, Afred Yekatom, Patrice-Edouard Ngaïssona, Still counting? 

However, if one uses the indictment statistics as a parameter, then it may be equally fair to consider the fact that Africa has the highest share of war-crime related atrocities, with more than five million African victims displaced while other more than 40,000 African victims lost their lives. Furthermore, thousands of African children are not only recruited as child soldiers, but these innocent children, who are denied basic education and a bright future are equally systematically turned into killers. Sadly, thousands of African women and girls are victims of rape as a result of atrocity committed in several African states under the ICC Court’s jurisdiction. Morally speaking, it would be an irresponsible rape of justice and unfair to the victims of these impunities not to hold the culprits accountable for their crimes.

Some individuals have argued that the lack of full understanding of the Court’s mandate and the limits and potentials of its jurisdiction fuels the idea that the court unduly targets Africans. They insist that a better understanding of the Court’s legal limitations can help explain the logic behind the indictment. That might be true.

But many people equally believe that those heinous crimes would not have taken place without the active finance and support of the West and other rich countries. Apart from the near-total anarchy in Iraq, which was caused by the USA inglorious invasion and war, accusing fingers are equally being pointed at the wars in Yemen, Afghanistan, Syria, where countries like Russia, Iran, Saudi Arabia, United Arab Emirate are actively involved as well as greedily making billions of dollars in military sales. These military arsenals are being turned against innocent citizens in the war zones, causing unnecessary deaths, refugee crises, humanitarian catastrophe, economic and social destitution. This leads some camps to question why those who provide the instruments and conditions that enable war crime to take place are themselves not held accountable for their brutal acts. This failure makes some to label the ICC as an extension of the Western neo-colonialism ideology. 

In an exclusive interview with Kata Kata Magazine, the ICC Chief Prosecutor Fatou Bensouda explained:

 “ It’s important to understand that my mandate is subject to a number of legal limitations. A critical restriction for my discretion to act as Prosecutor is that the country where atrocity crimes are committed has to be a member of the ICC or that the perpetrator must be a national of a member state of the ICC.”

“Wherever the law gives us the power to act, and victims need us, we will not let them down. In Africa, no less than six times, it is African governments themselves who asked the ICC to exercise its jurisdiction.  Africa represents the largest regional grouping of states, which has embraced the ICC by joining the Court.” She went on.  

Truly, even though the USA has often provided both military and logistics assistance to the ICC, especially, when the country’s interest is at stake, the country is officially not a signatory to the Rome Statute, which created the ICC. Nor is Iraq an ICC member. That means the ICC does not have jurisdiction over the alleged US or Iraqi crimes in Iraq. However, the ICC can investigate crimes committed in Iraq based on the UK’s status as a State Party to the Rome Statute.  In other words, because the UK (their soldiers have been accused of war crimes in Iraq) is a State Party, the ICC has jurisdiction over the alleged conduct of the country’s nationals in Iraq. In the case of Afghanistan, a party to the Rome Statute, the ICC Chief Prosecutor indicated that her court:

 “Has jurisdiction over any war crimes, crimes against humanity or genocide committed on the territory of Afghanistan, irrespective of the nationality of the perpetrator. “  

That brings one to another question being asked in certain quarters: Why is the ICC yet to indict those responsible, directly or indirectly, for the atrocities committed in Afghanistan, Iraq and alike?

Put all the above powerful arguments together, one is faced with many lingering questions. Is the ICC unfairly targeting Africans? Given that Africa has the highest share of war-crime related atrocities, is it (not) fair for the ICC to pay more attention to crimes committed in Africa to do justice to the African victims and bring the perpetrators of the gruesome crimes to book? By hardly indicting alleged culprits of war crimes, genocide, a crime against humanity committed in other parts of the world, is the ICC raping the justice it sets out to uphold? Having in mind that the above-alleged crimes are actively supported and financed by powerful countries, is the ICC turning itself into an instrument of the Western neo-colonialism as well as sending very wrong signals to criminals around the world, by the seemingly lukewarm attitude towards those allegedly, indirectly, behind the world conflicts?