By Peter Magomu Mashate
In this intensively condensed article I will briefly explore and contend that the International Criminal Court (ICC) may be largely a political tool of marginalization, intimidation, suppression of non-aligned position on global controversial political issues of the day and superimposition of global political economy hegemony of imperialism.
THE NUCLEAR STATUS OR BALANCE OF TERROR OF THE UN VETO PERMANENT FIVE.
The number of total members of the United Nations Security Council is Fifteen. Five of those members are permanent and NUCLEAR POWERS which arguably was the fundamental qualification for the VETO powers. This is a checks and balance arrangement to minimize nuclear confrontation through the doctrine of Balance of terror.
So far this DOCTRINE OF BALANCE OF TERROR is well demonstrated in the ensuing Russia/Ukrainian war where Russian pinned against the wall raised global extinction temperature by nuclear saber-rattling of “hands-off lest I go nuclear”.
It would seem to me that even if you are outside the permanent five as long as you are nuclear armed as now North Korea, India, Pakistan etc then your interests qualify for priority lane.
WHY GERMANY/JAPAN NOT MEMBERS OF THE SECURITY COUNCIL:
The most powerful countries in the world have their seats in the UN security council save for Japan and Germany. When the UN was established after the end of the Second World War, both Japan and Germany were defeated and they had no say in the newly established international order. Germany was conclusively defeated by Russian and this explains in part the German stance in the Russian/Ukrainian conflict.
NUREMBERG TRAILS AND ICC
The Nuremberg trials, at which Nazi leaders were arraigned for crimes against humanity, set a key precedent. Despite its perhaps inevitable flaws, the process of bringing the fascist leaders to justice broke new ground and marked the genesis of contemporary hybrid ICC.
Indeed, the leaders of what had been a sovereign government were being called to account for actions they had taken as supposedly sovereign entity which were in breach of human rights.
The moral dilemma of ICC & the Permanent five on UN Security Council with Veto.
However, isn’t America’s failure to ratify the ICC fear of accountability for their soldiers involved in global wars and the inherent mayhem in pursuit of global domination and hegemony a contradiction in terms?
I will contend and submit that at political level the world order as we perceive today is more perilous than ever before.
That the guarantors of that order are ideally the Permanent five on the UN security council with veto powers and largely subscribe to the doctrine of ” DO WHAT I SAY BUT DON’T DO WHAT I DO “.
How otherwise would you account for the fact that the Permanent five are largely not signed up members and have not ratified the Treaty establishing the ICC and are therefore not bound by its decisions to the extent that they are inconsistent with their own interests however unreasonable such interests may be.
Yet, notwithstanding, the non-signatories in self-proclaimed virtuousness and self-aggrandizement as world policemen, the permanent five gleefully present themselves as the protectors, vanguard crusaders and advocates of the ICC as a symbol of “civilization” against “savages” and those who oppose them belong to the “Axis of Evil”.
It is respectfully submitted that even where strict democracy is observed but as long as it’s at variance with the interests of the Political economy of imperialism then the leadership of that country or countries at variance may and often politically qualify as candidates for the ICC.
Indeed, it is a subtle manifestation of the brutal doctrine of “survival of the fittest” – in which case ” YOU ARE EITHER WITH US OR AGAINST US & IF YOU ARE AGAINST US WE RESERVE THE RIGHT TO IMPUNITY AGAINST YOU BY WHATEVER MEANS NECESSARY” in other words a classic Machiavellian doctrine “the End justifies the means”. This is the new world order, is it not?
It would seem to me that in strict terms the ICC while doing a commendable job in pursuit of the fight against genocide and impunity; however, this is only tenable whenever it is seized of a “non- political” but “judicially merited genocide” complaint.
In the event, ICC should and ought to proffer unfettered judicial lenses that are apolitical and impartial in order to provide anxious judicial scrutiny of genocide petitions.
This is the only honourable basis to defend its professional integrity and relevance as the Apex judicial genocide court underpinning the much desired new world order.
In this regard, ICC mission should remain fair and just not to acquiesce as a political tool of convenience used for selective justice. It’s therefore expected that at no material time should the ICC bow to the shenanigans of political witch hunt. This includes not pandering to the whims of international political hegemony of imperialism whose promoters aren’t even signatories to the UN Treaty establishing the ICC.
ABORTIVE ATTEMPTS BY UGANDAN POLITICIANS TO LODGE GENOCIDE CASES AT THE ICC
Throughout the NRM reign when real stability and peace has endured more than any time before, Ugandans have had a brush with the dynamics of ICC. This has often stemmed from contested election results and the violence thereto and/or even sometimes administrative and political mishaps in management of the electoral process.
In the view of the petitioners to the ICC their march to the ICC has been often galvanised by what to them boils down to “abuse of human rights” often allegedly elections have been rigged and “violent” suppression of any protests of vote irregularities by law enforcement agencies to their detriment
IS THE ICC A COURT OF HUMAN RIGHTS?
I will contend and submit that while the ICC mandate of genocide inherently encompasses human rights, nonetheless, it’s ambit of genocide is inherently of a higher threshold. Genocide involves deliberate mass murder while human rights violations are defined in the Universal declarations on human rights, ECHR, conventions and protocols.
In any event, we have a separate designated Court of European Court of Human rights based in Strasbourg in France. Perhaps that’s where Human rights grievances should next time go provided they are based on sound law and incontrovertible evidence.
It’s also my considered submission that the line between the jurisdictions of these courts is so thin that it often gets blurred.
This is perhaps one of the reasons our Ugandan politicians have yet to get off the ground to a successful petition to even satisfy the pre trial chamber sifting criteria (Akasengejja) of these cases and beyond.
The other plausible reason why these Ugandan petitions fail is not due to any inadequacy of the lawyers who prepare and file these cases but rather the Political pressure from their constituents to be seen to be doing something radical to explain their electoral loss to their voters so as to rise to the occasion.
UGANDA’S ANSWER TO THE ICC DOCTRINE/PRINCIPLE OF COMPLETEMENTARITY.
In 2006, the Government of Uganda (GoU) and the Lord’s Resistance Army (LRA) commenced peace talks to end the conflict in Northern Uganda. In June 2007, the GoU and the LRA signed an annexure to the final peace agreement on Accountability and Reconciliation, which required the Government to establish both formal and non-formal justice mechanisms to address accountability and reparations for atrocities committed in Northern Uganda.
In line with the Juba Peace Agreement calling for the establishment of accountability mechanisms for crimes perpetrated during the conflict, the Government of Uganda established the War Crimes Division in 2008, now the International Crimes Division of the High Court, to try individuals suspected of committing war crimes in the country.
WHAT IS THE INTERNATIONAL CRIMES DIVISION?
This establishment of the International Crimes Division (ICD) is a permanent division of the Ugandan High Court, arguably answered the prerequisite question of the ICC as a court of last resort where the national governments and their respective jurisdictions had failed to either protect and/or prosecute perpetrators of genocide within their national and sovereign jurisdictions.
The ICD was established in 2008, under the 1995 Constitution of the Republic of Uganda. Originally it was called the War Crimes Division. The ICD is a national court and shall not be confused with the International Criminal Court (ICC) which is situated in The Hague, Netherlands.
Is the International Crimes Division the same as the International Criminal Court?
It is submitted that the two are not the same. The International Crimes Division is a Division of the High Court of Uganda. The International Criminal Court is an international court that handles cases dealing with serious international crimes, specifically the crime of genocide, crimes against humanity and war crimes.
The ICC was established by the Rome Statute in 2002. Uganda ratified and domesticated the Rome Statute in June 2010 by enacting the International Criminal Court Act 2010, meaning that it is obliged to respect the obligations in this treaty.
Pursuant to the principle of complimentarity, specifically, Uganda has the duty to prosecute the listed crimes when they are committed in its territory. If Uganda is unable or unwilling to do so, the International Criminal Court may bring charges against offenders of such crimes, especially when the offenses were committed in Uganda after 2002.
SIMILARITIES AND DIFFERENCES OF THE ICC vis~a~vis OTHER COURTS.
The fundamental difference between the International Court of Justice (ICJ) or World Court which is a civil tribunal that hears disputes between countries, is that, the International Criminal Court (ICC) is able to investigate and prosecute those individuals accused of crimes against humanity.
These are genocide, and crimes of war, and the ICC will step in only if national courts are unwilling or unable to investigate or prosecute such crimes.
The ICC is charged to help defend rights of those, such as women and children, who have often had little recourse to justice.
The UN contributes funds, especially when the ICC investigates and prosecutes cases referred to it by the UN Security Council. Its worth noting the irony that while the US is not a signatory it contributes the most to the UN ICC operational budget.
The treaty gives the ICC jurisdiction that is complementary to existing national judicial systems or jurisdictions. This “PRINCIPLE OF COMPLETEMENARITY” as it is known gives states the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if states fail to implement their duty.
The first challenge for the ICC is therefore the ‘constitutional compatibility’. For example, there are no immunities for HEADS OF STATE and this lack of incentive to them cooperate with the ICC in part arguably accounts for life presidency in most countries (e.g. Charles Taylor, Gen Pinochet, Al Bashir of Sudan etc).
Transferring one’s nationals to an international criminal court (e.g. Milosevic, Bashir etc with certainty of life imprisonment) is another big challenge for the ICC acceptability and respect amongst most nations as it contends with cultural and religious disparities.
Whether all these aspects can be pulled together and harmonised to answer the needs of the new world order seems to be the biggest challenge of the ICC.
Similarly, America’s hostility to the court prior and post 9/11 and yet ironically its cynical attempt to pick and choose, directly or by proxy trials that can come before the ICC, is a big complicating factor. For example, the trial of Milosevic, Bashir of Sudan being suitable as opposed to that of Saddam Hussein, Muamar Gaddafi of Libya etc.
THE AMERICAN PERSPECTIVE OF ICC POST 9/11.
This bid to politicise the tribunal cannot be excused in the 9/11 events. This is because the ICC is built on an additional strength of being a permanent, treaty-based institution, for the prosecution of crimes committed after its creation. Therefore, it’s not retrospective in deeds and needs.
Many safeguards are purported to exist in the ICC treaty to prevent frivolous or politically motivated cases.
For example, all indictments require confirmation by a pre -Trial Chamber. In addition, any investigation initiated by the Prosecutor should first be approved by the pre-trial Chamber.
What then needs to be investigated is how best to reconcile or at best bridge or narrow the gap between the rest of the world and the US in particular in as far as free and fair trials are concerned.
The US Guantanamo (Cuba) detention centre trials provide a specimen of the dilemma posed in the post-9/11 and the needs of the international community as symbolized by the aspirations of the standard set by the ICC.
Unilateralism as exercised outside the UN mandate in the recent Iraq removal of Saddam Hussein even when the cause is just only antagonises otherwise viable international institutions.
This perhaps explains on one extreme Guantanamo bay on the one hand and the ICC on the other with America unwilling to bring Saddam Hussein to such a court.
Furthermore, on the basis of the ‘principle of complementarity’, dilemmas remain where there are wide cultural differences in terms of perception of justice and the penal codes particularly in jurisdictions of Sharia laws even where such states are signatories to the ICC.
The US hostility to the ICC increased dramatically in 2002. The crux of the US concern relates to the prospect that the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of US military and political personnel.
For example, Gen Wesley Clarke who led NATO in bombing Milosevic out of power in Belgrade.
Indeed, the US opposition is in stark contrast to the strong support for the Court by most of America’s closet allies.
Is the ICC therefore predominantly a European affair? And if it is, what has it got to do with Africa where there are robust domestic jurisdictions such as the International Crimes Division (ICD) which is a permanent division of the Ugandan High Court?
I dare submit that it is necessary and possible for the African Union to establish its own non-aligned African Criminal Court with the same judicial powers as the ICC to safeguard and guarantee Africa’s collective sovereignty.
Africa urgently requires self emancipation from the shackles of imperialism, domination and marginalization and stand as non-aligned in the power struggle chess game between the UN permanent five Veto powers.
THE WRITER IS A CONSITITUTIONAL AND HUMAN RIGHTS BARRISTER-AT-LAW OF LINCOLN’S INN OF COURT LONDON UK