Justice for whom? Hypocrisy of the International Criminal Court

Many African countries vigorously participated in the Rome Diplomatic Conference in 1998, culminating in the treaty creating the International Criminal Court (ICC). The late minister of justice, Dullah Omar, represented South Africa in Rome as an enthusiastic participant. I recall his excitement at the prospect of creating an impartial court to ensure that serious violations of international criminal law would not go unpunished.

Fast forward two decades later, and many are severely disappointed at how this vision has played out. The integrity of the ICC lies severely eroded. Instead of a global forum where the most severe crimes against the international community would be held to account, the ICC has instead entrenched the status quo world order and insulated war criminals from the most powerful nations while selectively prosecuting leaders from others. Today, South Africa is talking about exiting the ICC.

Since its inception, the ICC has predominantly focused its attention on the Global South. Every single one of the 31 defendants in active and past cases on the ICC website is from Africa.

Except for five indictments against Russian leaders in 2022 and 2023, all 52 public impeachments — in a period spanning 18 years — are against Africans. At least 17 investigations – with the exception of investigations into abuses in Georgia, Ukraine, and Palestine – are targeted at perpetrators who are not white.

In the wake of mass atrocities by Western powers – including an American torture and extraordinary rendition programme worldwide, British war crimes in Iraq, and French atrocities in Mali – one must ask, is this a case of justice for thee, but for me?

A Western institution?

Perhaps this was by design. One of the ways an indictment is brought is through the referral of the UN Security Council, which consists of global superpowers keen to preserve their power and punish those who interfere with their interests. Some have argued that the US's fixation on atrocities in Darfur when Sudan was ruled by Omar al Bashir was essentially a ruse to draw the world’s attention away from mass casualties and failures in Iraq. As a result, the US played a significant role in pushing the Security Council to refer Sudanese leaders to the ICC.

Moreover, the ICC is overwhelmingly funded by European Union member states, many of which are former European colonial powers. There exists a close relationship between funding and staffing at the ICC—crucial positions that are tasked with investigating and preparing cases are overwhelmingly filled by Europeans.

Professor Mahmood Mamdani, a reputed scholar from Uganda at the Columbia University, has noted that the “ICC is dancing to the tune of Western States. Given Africa’s traumatic experience with the very same colonial powers that now, in effect, direct the ICC, it is an unfortunate case of déjà vu.”

Some African countries have since reported that they were pressured to sign the Rome Statute by the EU as a precondition to joining the Cotonou Agreement, an EU-Africa trade pact.

Alas, the Western countries never intended to be subject to ICC investigations. A former British Foreign Secretary was blunt - the ICC was not designed to investigate Western countries. Kenneth Roth, the former Executive Director of Human Rights Watch, goes further - European states never intended for the ICC to prosecute crimes in their jurisdictions.

The US famously signed the Rome Statute but refused to ratify it, thereby endorsing its message and avoiding accountability.

Attempts to hold Western countries and their allies to account have thus far failed. For those committed to an unbiased international rule-based system, realising and implementing a global rule of law have proved impossible to achieve where the mighty powers or their favourite allies have yet to be held accountable.

US hypocrisy

Take the attempts to hold America accountable. In 2017, ICC chief prosecutor Fatou Bensouda formally requested to launch an official investigation into the “serious crimes” conducted by the US in the context of its Afghan invasion, including its widespread black site programme.

In an unprecedented move, in 2019, the ICC denied the authorisation, citing the “political climate” surrounding the investigation. The decision was successfully appealed in March 2020, but it resulted in the Trump administration taking drastic measures to send a message to the ICC and its enablers that international accountability is not for Americans.

The US government imposed sanctions on Bensouda, other ICC officials and their families for investigating US personnel. The US even banned the ICC officials and their families from entering the country, and their assets in the US were frozen. Under the ban, US parties were prohibited from trading or offering any services to any of the listed persons. The sanctions were lifted in April 2021, but the message was loud and clear.

As an aside, many developing countries have faced the wrath and pernicious consequences of US sanctions when they do not kowtow to Washington’s foreign policy interests. Many in the developing world seek to end this economic coercion.

The draconian response to the ICC is not an invention of the Trump administration. The US has long sought to punish those who seek to bring them and their allies to justice. American Service-Members Protection Act (ASPA), often referred to as the ‘Hague Invasion Act’, has been in effect almost as long as the Rome Statute. This legislation prohibits any American party from cooperating with the ICC, providing any information to the court, or deporting anyone from the US to the ICC. The statute gives the President the authority to use military force to free US service members or members of allies detained by or on behalf of the ICC. The President is also authorised to use military force to halt the investigation of US personnel and its allies. Let that sink in for a moment. The US allows for military force against anyone who seeks to bring its partners to justice on the world stage. Undoubtedly, Israel was at the top of the drafters’ minds when writing this legislation.

The US has entered into Status of Force Agreements (SOFAs) with many countries, particularly African countries, that preclude the handing over of US personnel to the ICC. The SOFA violates the ICC statute, which does not allow the conclusion of new agreements by state parties contrary to the Rome Statute. Moreover, the SOFA is a precondition to these countries receiving US financial assistance – a further manifestation of economic coercion against vulnerable states.

Biased organisation

These actions clearly influenced the ICC. Early in his tenure, and citing the limited resources of the ICC, chief prosecutor Karim Khan decided to restrict his investigation into atrocities in Afghanistan to only those committed by the Taliban and Daesh. Therefore, US atrocities – including torture, maintenance of ‘black sites’, extrajudicial killings, and drone strikes against civilians that fall within the jurisdictional ambit of the ICC – were not considered worth the expense to the ICC to investigate and punish.

In December 2020, the previous ICC chief prosecutor took the same decision against Britain, despite a 180-page report detailing British abuses in Iraq that amounted to war crimes.

As with the US, domestic accountability and prosecution are lacking, which should trigger an investigation by the ICC. Most tellingly, human rights advocates have called out Khan’s bias seen in how he sees his mandate shifting back to the “war on terror” as constituting “a global threat to international peace and security”. Yet, nowhere in the statute of the court does one find any reference to terrorism.

Israel, a darling of the US and the European Union, has also evaded ICC accountability. The ICC prosecutor started an investigation into Israel’s actions in 2021.

Unlike Russia or Libya, where warrants of arrest were issued with unprecedented speed, no warrant of arrest has been issued for any Israeli official. Chief ICC prosecutor Karim Khan from Britain visited Ukraine four times in one year. After his last visit, he proclaimed, “The situation in Ukraine must also set a new standard for concerted action to achieve global accountability for international crimes. From Kharkiv to Khartoum, from Kiev to Cox’s Bazar, survivors should feel this sense of collective urgency and benefit from the innovation we see we are now capable of.”

No similar visit has been made to Palestine or Guantanamo Bay, nor have any grand statements made to hold the US, British, or Israeli officials accountable for international crimes.

A few days ago, EU president Ursula von der Leyen proclaimed Israel a vibrant democracy. She extolled the 75 years of dynamism that made the “desert bloom”, a racial trope used against Palestinians. Her account of Israel is another among the litany of Western leaders’ grotesque and perverse inversion of truth that negates the reality of settler colonialism, massive human rights violations and international crimes in what human rights organisations have called the ‘apartheid state of Israel’. Her statement comes against the backdrop of images a few weeks ago of Palestinian worshippers being assaulted and tied with their hands to their backs while offering prayers in occupied East Jerusalem.

We have reached an inflection point, and the question is whether African states will allow themselves to be coerced to play the role of supplicants to Western geo-political interests and allow impunity for equally egregious acts by such powers.

International law must not be viewed as the outcome of powerful political actors to achieve political ends. The ICC has proved to be neither neutral nor impartial. It functions in a partisan and political manner against the shadow of big-power politics.

It is time to disengage from the ICC in its current form. In its implementation, the ICC is not about international justice. Justice morphs and bends. African and developing countries are called to supinely accept the assumption - what furthers the power politics of the West must be good for the rest of the world.

We need to go back to the drawing board and produce a truly independent institution that does not fashion justice based on the whims of powerful political actors to achieve political goals or shield favourite allies.