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  • Ankit Malhotra

Institutional Racism: the International Criminal Court


Abstract


We all understand that the International Criminal Court is a court of last resort. There must be a court that stands up for those who cannot defend themselves. Established in 1998 but founded in 2002, the ICC was created to punish the worst of humanity when national courts failed to prosecute. The history of the ICC traces its routes to the Nuremberg trials’ mandate to prosecute people individually for major crimes committed during wartime. However, interestingly, the Court never looked into the atrocities that the US, Britain, and Australia had also committed during the Second World War. So, there’s always been this concern with international law that it was a tool of the victors, of the powerful states. The purpose of the International Criminal Court is to create this global permanent court that can deal with crimes against humanity wherever they happen around the world. And those are war crimes, crimes against humanity, genocide, and the crime of aggression. One hundred and twenty-three countries are currently members of the ICC, but a few global superpowers are noticeably absent, including the United States, Russia, and China.



Introduction


When footage showing British troops torturing Iraqi prisoners in 2003 did the rounds- it raised some red serious flags. It was revealing a culture of impunity amongst UK forces occupying Iraq between 2003 and 2009. What was witnessed was an organised mechanism of sleep deprivation, of beatings and sexual and religious humiliation. Following a six-year preliminary examination, the International Criminal Court’s lead prosecutor concluded in December 2020 that there was a reasonable basis to believe British troops had committed war crimes and torture. The preliminary examination also raised credible allegations of rape and murder. After conducting its own inquiry and yielding favourable results, the ICC decided to abandon its inquiry. Two months later, Dominic Ongwen was handed a guilty verdict by the ICC for atrocities committed as a commander of the Lord’s Resistance Army in Uganda between 2002 and 2005, including murder, torture and rape. Dominic Ongwen has been found guilty beyond reasonable doubt. Why the ICC decided to pursue one case and not the other has reignited claims that the court has an African bias. Of the court’s current 14 active investigations, 12 involve African and Middle Eastern states. And all of the 30 cases brought before the court have been against African nationals, causing many to question: is the International Criminal Court racist?



Unearthing the Truth- or whatever that means


Notwithstanding global leaders’ lack of support, the court must be allowed the proper space to focus on its duties free from unwarranted resistance. But not all countries are on board with being investigated. Donald Trump at the United Nations in New York went as far as to say, “As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority”. As a member of the UN Security Council, the US can still refer cases to the ICC, as it did with Libya in 2011. However, when it comes to their own conduct in Iraq and Afghanistan... John Bolton said the following, “We will provide no assistance to the ICC, and we certainly will not join the ICC. For all intents and purposes, the ICC is already dead to us.”


Despite not being signatory, the ICC is able to investigate the US if the alleged war crimes take place within any of its member states. . This is a basic and well established principle of international law. Countries that ratify the Rome Statute are simply delegating their authority to prosecute certain grave crimes committed on their territory to an international court. However, when the ICC launched an inquiry into atrocities in Afghanistan, a member of the court, Trump responded by issuing an executive order and slapping sanctions on the lead prosecutor, Fatou Bensouda, and members of her staff. We will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court. These attacks constitute an escalation and an unacceptable attempt to interfere with the rule of law and the court’s judicial proceedings. The UK, which is a member of the ICC, has rebuffed its scrutiny by saying they could handle the investigation of their own soldiers for war crimes themselves and created the Overseas Operations Bill, which would eliminate the possibility of UK soldiers being prosecuted for crimes committed abroad after five years.


Seeking justice, the International Criminal Court must consider making a case and taking the necessary steps for my case against the British Forces. As of 2017, the British Ministry of Defence has only convicted one soldier, but has also paid out 19.8 million pounds in out-of-court settlements in 326 cases out of a further 1,145 claims that are related to conduct of British forces in Iraq.


The U.K. has also paid out an undisclosed amount to victims or their relatives in an additional 4,400 cases. Individuals like Ugandan rebel leader Joseph Kony, Saif al-Islam Gaddafi, son and one-time apparent of Libya’s fallen leader Muammar, have been indicted for various crimes, including genocide, with a total of 35 arrest warrants since 2002 and a cumulative budget of over 2 billion Euros.



A push from the South


One hundred and twenty-three countries have joined the ICC, so it’s approximately two-thirds of the countries in the world. And it's been a real frustration for many affected populations in African states. It's only ever gone after rebel leaders or relatively small actors in these conflicts. It shows a real reluctance on the part of the ICC to go after much more powerful political actors. And as long as it continues down that vein, the Court will always struggle to get rid of this reputation that it's ultimately a colonial tool. And of the nine individuals they have convicted over the past two decades, seven have been from the Democratic Republic of Congo. The Global South pushed it to have these crimes to be qualified as international crimes: the use of mercenaries, or international drug trafficking or terrorism or colonialism or willful destruction of the environment.


But European states and Western powers were against this, and then they ended up winning this struggle. The US, the UK, Russia, China, Germany, tried to constrain the creation of the ICC to avoid prosecution for the things that they were involved in around the world, which is often about powerful states invading the territory of weaker states and engaging in that kind of neo-colonial activity. President Bush signed into law the American Service Members Protection Act of 2002, which will supposedly protect US service members from the International Criminal Court. Yet the United States itself and all its citizens are exempt from the same laws that they are compelling everybody to go through. Both the prosecution and the defense at the ICC have never used a single African investigator. They’ve never been to any part of Africa before they started investigating these very complicated crimes.



Conclusion


Stuck between a moral rock and a colonial hard place, some African leaders have threatened to leave the ICC, with Burundi jumping ship in 2017, calling it unfair and racist. And it's not just Burundi. The Philippines have also left the court after preliminary accusations against Duterte and other top officials were investigated for mass murder and crimes against humanity that occurred during the infamous drug crackdown.


The ICC often points out that most African cases have been self-referrals. Many African states have realized that it’s very useful to have the ICC come and investigate these cases, to deal with their enemies, to deal with non-state actors, as long as they don’t start snooping into what governments have also been doing during these conflicts. The court has recently broadened its focus to investigate war crimes committed by the Taliban but also US forces in Afghanistan and is also investigating Russia for crimes committed in Georgia. The ICC is bound to always be used for reasons that go beyond just the legal questions. Without fear or favor, it would investigate and prosecute cases around the world. But what we’ve seen is a highly politicized court that hasn’t gone after the most powerful actors.




Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.



Image Source: https://justiceinconflict.files.wordpress.com/2012/02/tdfwghhvqqwh2qu1m8cokq.jpeg