Power doesn't always trump law
Criticism may justly be leveled against the International Criminal Court (ICC), set up in The Hague in 2002 to prosecute crimes against humanity. As I often argue, there are double standards are at play in The Hague and elsewhere. Powerful perpetrators of human rights violations are rarely brought before the courts. It is generally only the weak, the conquered or the scapegoated that end up on the ICC defendant’s bench. This isn’t good enough – indeed it is dangerous – for a Court that makes claims to universality.
But criticism of the Court is often cynical and trite. The Realpolitiker, the Kissingers of this world, are delighted to see that the Court has problems. It also confirms the worldview of those on the left who have the world so well figured out that nothing new, nothing unexpected, can ever occur: “(Economic) power trumps the law – there’s no way around it.” Or is there?
The world and its various power relations are more complex than that. At this point it’s simply impossible to predict how international criminal justice, and in particular the ICC, will develop. The possibilities are vast, there are a lot of players involved. This can be seen in the case of Sudanese President Omar Al-Bashir, against whom the ICC issued two arrest warrants in 2009 and 2010. Unlike national authorities, the world criminal court doesn’t have a police force on hand to carry out the arrests. Instead it must rely on the assistance of states, which have their own agendas, whether economic, military or political.
There was limited interest in Al-Bashir’s arrest. He was able to travel to China and Turkey – states that haven’t signed the ICC statute – without any trouble from the authorities. But Al-Bashir also managed to safely travel to various African countries that are ICC signatories and that were in fact under an obligation to arrest him.
If South African President Jacob Zuma had gotten his way, Al-Bashir would have also been safe at the African Union summit in Johannesburg last weekend. But a human rights organization filed a case and the South African judiciary reacted swiftly, forbidding Al-Bashir from leaving South African territory. The government in Pretoria disregarded the Court’s ruling and allowed the Sudanese potentate to fly out of the country. His plane had wisely enough been parked on a military base, beyond the reach of civil authorities.
One can of course draw the usual conclusions from this story: the ICC doesn’t work properly and international criminal law is only wielded against Africans. But a different reading is also possible: it’s predominantly the powerful in Africa who characterize the Court in The Hague as a neocolonial construct. Many human rights organizations like the South African group that filed this case as well as the Court in Pretoria see the judicial intervention from The Hague on human rights issues as very helpful – including and indeed especially in order to set things in motion in their own countries.
That’s why we – lawyers in Berlin, London and New York – are on the same page as our African colleagues. There’s no contradiction at play when we seek prosecutions for US torture in Guantánamo and criticize the impunity of Donald Rumsfeld while the South African, Kenyan and Congolese lawyers work on the human rights violations in their region. After all, Omar Al-Bashir, Uhuru Kenyatta and Joseph Kabila are powerful figures and deserve to be brought to court. It may not have worked out this time, but it was close. We won’t stop trying.