International Criminal Court and African Union: Selective Justice?

Before I embarked upon the merit of the issue, some preliminary issues should be discussed to see whether International Criminal Court (hereinafter called ICC) is targeting Africans or not. In order to arrive at a fair and balanced conclusion, there is a need to discuss how the ICC exercise jurisdiction over the most heinous crimes by taking ICC Statute (Rome Statute). Here, issues of membership, complementarity, referral and treaty obligations should first be addressed in order to ascertain on the claim that ICC is selective and targeting Africans. Most, if not all, cases filed in the ICC in the year 2008 were cases from African soil; the issues whether it was deliberate and targetfull is going to be determined case by case and issue by issue bases later on.

International law should not be wielded as the big stick by strong nations used to pummel the weak ones. We are against selective justice. If we have to be fair, the Georgian president, who is being accused byRussia of genocide, must face similar justice.                                                  

The then AU Chairperson, Jean Ping

 

1.   Antecedents of Exclusion and Selectivity of International Criminal Law Enforcement

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Some Legal Issues Concerning the ICC-AU ‘Crisis’: A Reply to Abreha Z Mesele

Abreha Z. Mesele has written (ICC and African Union: Selective Justice?) an informative piece on the recently inflamed ICC-African Union altercation; or rather African Union’s ringing condemnations of the practice of ICC, calling it big-powers’ instrument of ‘pummelling the weak ones’.  In this piece I would like to offer some of my views on the issue, by way of a response to Abreha’s paper. Abreha has accomplished the task of laying out the essential introductory ground-work, and so I will refrain from any redundancy and delve straight into discussing the issues that I think are overlooked or misrepresented in the general discussion on the topic and in Abreha’s piece specifically.

I would like to discuss three important (loosely interrelated) points. First, I dispel the suggestion that the ICC is primarily funded by powerful states (read: the US) and to that extent serves as an instrument of their desires. Second, I will argue that powerful states would still be able to shield themselves from the ICC by using the powers of the Security Council, even if the Statute of the ICC had not bestowed upon the Security Council powers to defer cases from consideration by the ICC. Thirdly, I present two possible interpretations to resolve the apparent contradiction between article 27 (waiver of immunity) and article 98 (requirement of consent in waiving immunity) of the ICC Statute that Abreha pointed at. I will end my discussion with a rather pessimistic but practicable note (as opposed to the idealist but paralyzing suggestions we often hear) on the way forward regarding the ICC-AU ‘crisis’.

ICC Financing and Big-Power Instrumentality

Misperceptions about the financing of the ICC are one of the more important factors influencing attitudes toward the practice of the court. Contrary to widely held assumption (also subscribed to by Abreha), the ICC is not funded by ‘big/super powers’ (which is mainly a code word for ‘the US’), and to that extent the ICC is not an instrument at the disposal of the will of the US. The ICC is funded mainly by the regular contributions of all of its 122 member states, although one could say the bigger powers contribute more as their contribution follows what is called the ‘assessed contributions’ formula of the UN. The US in particular is not a party to the ICC Statute and therefore does not contribute to the court’s budget. There is a possibility for non-members to contribute to the funding of the ICC voluntarily, but the United States has never volunteered. In fact, a law in the United States expressly prohibits the government from making contributions to the ICC. The other circumstance the US would be said to cover the costs of the court is when the Security Council makes a referral to the ICC. In such cases, the UN itself covers the costs of the cases and therefore the US would indirectly bear a portion of the costs as a member of the UN. But such costs are incurred from the regular budget of the United Nations to which the United States and all other nations contribute in lump sum, and therefore no state wields particular dominance over the specific programmes that such general contributions accomplish. All member states of the ICC, including the big Western and other states, contribute to its meagre budget of around 100 million Euros a year. The biggest financial contributor to the ICC is in fact Japan, contributing not more than 20 per cent of the court’s annual budget; I guess that says it all about the relative insignificance of a financing-based critique of ‘big-power instrumentality’ against the ICC.

Big-Powers and the ICC: the Powers of the Security Council

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