Why the ICC can’t escape the test in the court of public opinion

The International Criminal Court (ICC) has, for a while now, been in the dock in the court of public opinion. Many in Africa and beyond have variously expressed their skepticism about the noble purpose for which the ICC came into being to discharge international justice. And the ongoing ruckus from a section of Kenyan politicians protesting the ICC’s decision to allow Prosecutor Fatou Bensouda to use recanted evidence from hostile witnesses is only a symptom of a larger legitimacy issue that must be addressed. The African Union has joined in the fray on the issue. It should be hoped that the AU’s effort for reconsideration at the ICC’s Appeal Chamber will allay some of the major concerns; if not for the Kenyan duo of Deputy President William Ruto and former journalist Joshua arap Sang, against whom the recanted evidence may be used, but for the sake of the 34 African countries that have signed the Rome Statute. Rwanda is not a party to the statute. The AU argues that negotiations and declarations at the 12th Session of the Assembly of State Parties (ASP) indicate that the amended Rule 68 that allows admission of prior recorded testimony was not intended to apply retroactively. In the argument is the concern that the application of the rule had placed the rights of Mr Ruto and Mr Sang in detriment. But it is not just about Kenya. Currently, Uganda, Central Africa Republic, the Democratic Republic of Congo, Sudan, Mali and Cote d’Ivoire have something going at the ICC. The AU observes that the States Parties in their wisdom never aimed to pass the cost of any rule change on to the unsuspecting African accused presently before the Court, in naked violation of core statutory provisions. But what is provided for is one thing. There are also issues of perception. One of the underlying concerns draws from the perception by African countries that the continent is being unduly targeted. To appreciate what drives the perception, consider that since the ICC was formally established in 2002, it has received more than 9,000 complaints of alleged crimes against humanity or genocide from 189 countries. Yet all the countries with issues with the court are African. No matter, some of the ongoing cases were referred to the ICC by the African countries themselves. Critics point out that with such a large number of complaints of alleged crimes against humanity across the world – say, what has been happening in the Middle East – there should be a case or two from the region by now in the ICC. There is also something to be said about reasons why some countries are not party to the Rome Statute that established the International Criminal Court: Although it is generally considered to be within the UN “family”, the ICC is not exactly a UN body. It is an independent treaty body overseen by the states that have ratified the Rome Statute, and claims jurisdiction over all citizens of states that have ratified the Statute. But its jurisdiction extends to individuals from countries that are not party to the Statute if alleged crimes against humanity occur on the territory of an ICC party state. If this happens the non-party government invites ICC jurisdiction, or the U.N. Security Council refers the case to the ICC. And, thus, the reasons some countries are not party to the Statute. The countries, including the United States of America, China, India, and Russia are among the other major powers, refused to ratify the Rome Statute out of concern that it unduly infringes on their foreign and security policy decisions. These issues, they say, should be reserved to sovereign governments and over which the ICC should not claim authority. They charge that the Rome Statute created a seriously flawed institution that lacks prudent safeguards against political manipulation, and possesses sweeping authority without accountability to the U.N. Security Council, in addition to violating national sovereignty. It is in these reasons that that the ruckus among the Kenyan politicians is only a tip of the iceberg, and on which the pervasive skepticism about the ICC’s noble purpose is grounded.

Opinions

Why the ICC can’t escape the test in the court of public opinion