International Affairs

Dissecting Claims of Bias in the International Criminal Court

The International Criminal Court (ICC) has been accused by the African Union of conducting a racially motivated propaganda against Africans as a recent proposal to try the Kenyan President Mr. Uhuru Kenyatta on charges of crimes against humanity is currently underway at The Hague.  AU chairman Mr. Hailemariam Desalegn, Ethiopia’s prime minister, has proclaimed that 99 per cent of people indicted by the ICC are from Africa, thereby implying that the international court’s prosecutors are intentionally targeting Africans. The African leaders believe that the ICC has infiltrated various flaws in the course of administrating justice and that though the purpose with which the body was set up was to avoid impunity the investigating process has degenerated into some kind of race hunting today.

The ICC was established in 2002 to try war crimes, genocide, crimes against humanity and crimes of aggression many of which are committed in countries with underdeveloped legal systems, has insisted that it acts impartially in all its cases. However, the ICC, having been ratified by 121 countries, has increasingly been accused of being biased against African nations because of the high numbers of Africans it is pursuing. The ICC has only ever issued arrest warrants for Africans. It currently has investigations under way in eight countries: Uganda, Democratic Republic of Congo (DRC), Central African Republic, Sudan, Kenya, Libya, Cote d’Ivoire and Mali. Places like Syria, Tibet, Iran, North Korea, etc., where gross human rights violations, war crimes and genocide are being committed on a regular basis, remain completely unreported.

The ICC assumes a central role in the adjudication of atrocities, arising from war or genocide, which are being perpetrated in countries around the world. The allegations of bias against the ICC that have been put forth by the African Union are in the need of immediate attention today as they question the credibility of the institution and its relevance in relation to the prevention of war crimes in the present age.

So what the UN should do now is set up an independent body for an urgent investigation into the matter that may help us find an answer to the most basic question centering this dispute: why is it that only the African countries till now have been reported in the ICC with the exclusion of all other non-African countries which have also seen the commission of war crimes and mass genocide over the years. This kind of an investigation will denote a test of credibility of the ICC, hence the investigation should ideally be the next step in determining in which direction our present state of international affairs are headed and whether we should continue to place bona fide inter-state conflicts under UN jurisdiction. Two possibilities emerge in proving the veracity of the allegations: one, statutory gaps and second, prosecurial inaction.

However, what basically needs to be pointed out here is that several nations, which have been largely unreported, are not party to the Treaty of Rome, which established the formation of the International Criminal Court, having neither signed nor ratified it. Some other nations, such as China, USA, etc., being permanent members of the Security Council suggest cases for referral to the International Criminal Court and thereby retain a significant proportion of vetoing power in their hands. For example, it is no secret that China and USA, in particular, would have at stake a considerable amount of their interests in such case as an investigation into the war crimes committed in Tibet and Iran respectively.

Mark Kersten, in “Is the ICC Racist”[1], very pertinently points out that the allegation of racism against the ICC does not necessarily bring into question a possible bias in the institution but instead presents the case for investigation into the selective approach of the institution and how the African Union may have played a role in contributing to such an approach. Other possibilities except the ones discussed above may be found, but the allegation of bias, if proved, would presumably occupy a predominant proportion of global debate as the proving of it would mean that an alarming international crisis may be before us that can obliterate the faith which has been universally vested in the United Nations since 1945.

About the Author

dipayanDipayan Chowdhury

He is a student of Symbiosis Law School in Pune. An  optimist at heart with a penchant for public speaking  he had decided to join law school out of an intensive interest to make significant contribution in the area of  human rights work in the country. He is currently pursuing a diploma in the field of Human Rights   Jurisprudence which involves a comprehensive study of the interface between International law and Human rights law. Having been a science student he also holds a special interest in the field of Intellectual Property Rights and particularly in exploring the human rights aspect in it. His other interests include Criminal Justice and Feminist Jurisprudence. An avid dreamer, Dipayan hopes to go a long way in the fight for the realization of his vision and also hopes for the right people to join him in this effort.

Endnotes:


[1] Mark Kersten, Is the ICC Racist?, Justice in Conflict, (February 22nd 2012),

http://justiceinconflict.org/2012/02/22/is-the-icc-racist/

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