The ICC isn't international enough

Luis Moreno-Ocampo is a hero for many in Kenya. For others, he represents the worst manifestation of the West’s holier-than-thou attitude towards Africa (this notwithstanding the fact that Ocampo is an Argentinian by origin).

There isn’t a shadow of doubt that this famous prosecutor of the International Criminal Court (ICC) is a man who holds his job in high esteem and goes about discharging his duties with the thoroughness of a strict schoolmaster. It is the institution he serves however that many in Africa have come to question as to its perceived double-standards when prosecuting crimes against humanity.

This past week Kenyans were treated to the spectacle of the infamous “Ocampo Six” making their defence arguments during their first appearance at The Hague to answer charges implicating them as the chief agitators of the post-election violence that resulted in hundreds of deaths in early 2008. Among them is Uhuru Kenyatta, the son of Kenya’s founding president, Jomo Kenyatta. He currently holds the post of deputy prime minister in a government that is ranked among the worst in terms of corruption worldwide. But that is beside the point.

There is no denying that what happened on the streets of Nairobi was nothing short of horrific. Innocent women were raped. Old men were hacked to death. It was a harrowing episode in the life of Kenya, which most Kenyans have vowed never to forgive, let alone forget. I am not Kenyan but I am African first and foremost. A crime against one of us is an injustice committed against us all.

But crimes against humanity are not limited to Africa alone.

If anything, the catalogue of the crimes against humanity with which the “Ocampo Six” are being charged (ie murder, forcible transfer of population and persecution) have been committed by the US throughout its history up to the present moment. Beginning with the massacre of Native Americans, participating in the great trans-Atlantic slave trade from the 1600s, dropping the atomic bomb on the cities of Hiroshima and Nagasaki during World War II and in recent times, engaging in two illegal wars against the people of Iraq in a bid to control their vast oil resources. The US by sheer volume and frequency alone has committed far more crimes against humanity than most other nations.

Quite unambiguously therefore, the charge sheet with respect to the US’s impunity is much longer and in addition to murder, forcible removal of populations and persecution has to include extermination and enslavement.

When the ICC was formed in 2002, its mandate was to prosecute crimes against humanity as defined in the Rome Statute and Article 7 of the United Nations. According to the Statute: “The ICC shall have universal jurisdiction over the most serious crimes of concern to the international community. These crimes include genocide, war crimes, crimes of aggression and crimes against humanity.”

However, the ICC’s objectivity and effectiveness in enforcing its mandate on an international scale has been hamstrung by various jurisdictional limitations.

According to the jurisdictional limitation of ratione personae, it is clear that the ICC statute applies solely to individuals and not to organisations. And so what then of the crimes against humanity committed by US and British corporations when they expropriate tribal lands and forcibly relocate their inhabitants to make way for oil fields or clear huge swathes of sacred rainforests for purposes of profit at the expense of indigenous peoples and their cultures? What then of the Chinese mining corporations operating in Zambia with poor health and safety practices that have claimed the lives of innocent miners?

There are other frustrating technical restrictions with respect to the ICC statute. For instance: “The ICC will not be authorised to bring legal proceedings against alleged perpetrators of crimes committed prior to 1 July 2002, the date on which the ICC Statute entered into effect.”

What then of the descendants of the slave trade (if we stretch the notion of compensatory justice back in time in seeking reparations for crimes committed by the powerful against the weak in generations past)? What then of the victims of Gukurahundi in Matabeleland in the early 1980s? What then of the martyrs of the Mau Mau rebellion in Kenya against British colonial rule during the 1950s when they fought alongside their gallant “rebel” leader Dedan Kimathi who exhorted them to arms with that impassioned cry “it is far better to die on our feet than live on our knees?”

Perhaps the largest stumbling block to the notion of universal justice, which the existence of the ICC implies, is that it can only prosecute alleged perpetrators of crimes committed by a national of a state or a state that has ratified the conventions of the ICC or accepted the court’s jurisdiction. Now here is the rub. None of the permanent members of the UN Security Council, more pertinently the US and China, have ratified the ICC statute — this glaring shortcoming notwithstanding the fact that a cursory reading of contemporary history reveals that the former nation accounts for a significant percentage of some of the worst crimes perpetrated against humanity.

In a world with a total of 195 countries, only 114 are members of the ICC.

In a world without peace, with flare-ups of violence on every spot on the globe occurring on a daily basis, the ICC has to date only prosecuted six cases perpetrated on the African continent (northern Uganda, the DRC, Central African Republic, Darfur (Sudan), Kenya and Libya).

In a world of 6.9 billion inhabitants are the only criminals a handful of Africans?

In a world where, economically speaking, the US sneezes and the rest of the world catches the cold, the US for all its other crimes committed in pursuit of its global political and economic agendas, is exempt from the jurisdiction of the court. Is the ICC then international enough? Or is the notion of unconditional international justice still a utopian concept? In the context of universal justice, are all nations equal or perhaps some are more equal than others in that they operate above the laws that constrain the rest? Can a true context of universal justice exist if the ICC only reaches for the easy pickings of Africa and sidesteps other horrors in the combat zones of Palestine, Kashmir, Afghanistan and Iraq (and inside the prisons shielded from international media scrutiny such as Guantanamo Bay)?

It is my contention therefore that until and when the ICC has full jurisdiction to prosecute crimes against humanity committed by any nation state anywhere on the planet, it must be renamed to reflect its limitations. Not doing so would continue to feed the stereotype that crimes against humanity are perpetrated nowhere else but in Africa. If anything, pending the mandatory extension of the ICC’s jurisdiction to all nation states without exceptions, it should be renamed the Africa Criminal Court and have its headquarters and staffers promptly relocated from The Hague to Abidjan, Harare or Nairobi, to name but a few alternatives.