Viewpoint: Breaking point for the ICC?
Sudan's President Omar al-Bashir has evaded arrest and transfer to the International Criminal Court (ICC) at The Hague yet again.
On Monday, he departed from the African Union summit held in Johannesburg. By letting him go, the South African authorities disregarded the urgent requests of the ICC, backed by the UN secretary general, in addition to an injunction of their own High Court.
However, more than that, South Africa's defiant attitude represents a power-play by the African states in their attempts to rein in the ICC.
The African National Congress government argues that the ICC has become outdated. This view reflects a trend within the African Union (AU).
Accusations of bias
All of the nine country situations addressed by the Court are African ones. To the AU states, this demonstrates a northern or western bias in the choice of cases to pursue.
Of course, there is a simple answer to this challenge: that the worst situations of abuse meant to be addressed by the ICC are, in fact, taking place in Africa.
The ICC is bound to focus on the most prominent cases of serious and widespread violations of the most fundamental human rights.
Moreover, four out of the nine country situations are instances of self-referrals.
That is to say, Uganda, the Democratic Republic of Congo, the Central African Republic and Mali positively invited the Court to become active. The choice of these cases cannot therefore be credited to biased court officials.
Two further situations, Sudan and Libya, were referred to the Court by Security Council action. Hence, only three out of the nine situations were actually taken up at the Court's own initiative.
- Established by the 1998 Rome Statute, which came into force on 1 July 2002
- Designed to prosecute and bring to justice those responsible for the worst crimes - genocide, crimes against humanity and war crimes - committed anywhere in the world
- Court of last resort, intervening only when national authorities cannot or will not prosecute
- Can deal only with crimes committed after 1 July 2002
- Currently investigating nine situations: the Democratic Republic of the Congo; Uganda; Darfur, (Sudan); Kenya; Libya; Ivory Coast; Mali and two in Central African Republic
The West did in fact lead the way when the International Criminal Tribunal for the former Yugoslavia was created for its own region, then beset by violence.
The tribunal was, in many ways, the precursor and model for the ICC, which was established to universalise this experience.
That said, the African Union can draw some ammunition from the attitude of the US when arguing that the Court applies double standards.
The US achieved many safeguards against the use of the Court against its own service-members in the Rome negotiations (which established the Court) without ever signing up to the Statute.
It has concluded around 100 special agreements with states, some of them African, obliging them not to co-operate with the ICC in relation to the US.
When adopting the Sudan resolution, the US made sure that its own military personnel deployed for peacekeeping in Darfur would be beyond the reach of the Court.
Taking on heads of states
In its criticism of the Court, the African Union has also focused on the fact that the ICC has had no hesitations in indicting serving heads of states.
This has raised the ire within an organisation still featuring a significant number of old-style autocratic regimes.
To them, the indictment against Col Muammar Gaddafi during the Arab Spring conflict in Libya represented an intervention by the UN Security Council and the ICC in the affairs of a sovereign state.
While the AU was powerless in relation to Libya, it did attempt to intervene in the proceedings concerning Kenya.
The Kenyatta case
Uhuru Kenyatta had been indicted in 2009 on charges of having organised ethnic violence after the contested elections of December 2007. He was elected president in 2013. Considerable pressure was applied by the AU to relieve him of the ensuing trial at The Hague.
The AU attempted to persuade the UN Security Council to use its extraordinary powers and suspend ICC action on Kenyatta, initially for one year, in the interest of peace and security. This attempt failed.
The AU responded by pointing to the emerging "sense of lack of consideration of a whole continent". A campaign was then mounted to move Kenyatta's trial to Kenya, or at least to Arusha, the seat of the International Criminal Tribunal for Rwanda.
There was also pressure, resisted by the Court, to excuse the accused from his own trial, given his responsibilities as president.
Of course, it is part of the concept of ending impunity that the accused should be formally confronted with the evidence in person and in public.
In the end, the Court was overruled by the Assembly of States Parties (the management oversight and legislative body of the ICC), who caved in to these demands and changed the applicable court rules, allowing those fulfilling "extraordinary public duties" at a high level to absent themselves from the proceedings.
While these manoeuvres took place, more and more witnesses reportedly fell silent or disappeared. In the end, the trial collapsed for lack of evidence. The AU had won.
The Bashir case has also become a focus of action of the AU, which has formed a Special Commission on relations with the ICC.
The AU has threatened to "take any further decisions or measures that may be necessary in order to preserve and safeguard peace, security and stability, as well as the dignity, sovereignty and integrity of the continent".
This is taken by many as a threat of a mass walkout from Rome, most likely designed to obtain further changes in the Statute or the subordinated rules, diminishing the independence and effectiveness of the Court. Moreover, the Union has applied very strong pressure on its members to present a united front on this issue.
Given this background, it is hardly surprising that an increasing number of African states have had the courage of their convictions and flouted their obligations in relation to the ICC.
The ICC has attempted to counter this development by creating a compliance mechanism.
It has chided Chad, Malawi, DR Congo and Nigeria for non-compliance with the obligation to co-operate, and occasionally even referred the issue to the UN Security Council. But the clear violations of international obligations have not been pursued very seriously.
All this reveals a bleak picture for the future.
The ICC was meant to realise the vision for a universal body that would help deter the worst abuses of human beings by other human beings, wherever they may occur, and establish accountability for such abuses.
This universal aspiration is now falling prey to a reassertion of old notions of national sovereignty, at least in Africa.
Marc Weller is professor of International Law and International Constitutional Studies at the University of Cambridge and Director of the Lauterpacht Centre for International Law.