The problem is that when general policy failure happens, it is unjustifiable to conclude that the general policy failures are caused by affirmative action, writes Ralph Mathekga.
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Since the end of the First World War in 1918 there has been attempts to create a new civilisation that would organise the community of states into an integrated international system.
Unfortunately, if one has to employ realist assumptions - that states are fundamental actors in the international community, thus they act according to their own national interests - any attempt to create an integrated international system might appear as a mirage. The creation of the League of Nations immediately after the First World War was one of those attempts, but failed to prevent an international war from breaking-out.
It was followed by the creation of the United Nations (UN) in 1945 immediately after the Second World War, in order to prevent a recurrence of international war among states. To enable the UN to act appropriately on this mandate, the International Court of Justice was established alongside it.
Membership of the International Court of Justice is based on membership of the UN. This court’s responsibility is to mediate conflicts among member-states of the UN General Assembly. It does not have the power to prosecute individuals violating the human rights of other global citizens. It is a judicial branch of the UN.
On the other side, within the space of the international system, the International Criminal Court (ICC) was established through the Rome Statute of 1998, which came into force in 2002, to prosecute individuals alleged to have violated human rights. Any individual charged with allegations of war crimes, crimes against humanity and genocide may be brought to this court.
The ICC also hears cases reported by the UN Security Council, a very elitist and exclusive body composed of five veto wielding countries; Russia, France, the People’s Republic of China, the United States of America and the United Kingdom.
What’s problematic with the ICC is its skewed adjudication of political cases, without assessing their political impact on the stability of member-states.
African leaders have for years, since after learning about the indictment of the Sudanese president, Omar Al-Bashir, in March 2009 pleaded with the ICC to put aside the indictment until such time peace and stability has been restored to Sudan. The request was on the basis that it’s very difficult to find justice for the victims of the war when there is no peace.
Al-Bashir is charged with numerous counts of war crimes, crime against humanity and genocide allegedly committed between 2003 and 2008 in Darfur region of Sudan.
In Kenya the charges against President Uhuru Kenyatta and his deputy William Ruto were withdrawn in April 2016, following a lack of evidence to the charges of crimes against humanity.
These cases have prompted a radical call from the African Union (AU) asking all member-states to collectively withdraw from the ICC. The call was raised in 2016 and gained momentum with the ultimate resolution of the 28th AU Summit this week. The summit resolved that there should be a mass withdrawal from the court by member-states. However, this resolution is non-binding, thus countries would withdraw voluntarily.
So what are the implications of this resolution? Firstly, a mass exit of AU states would weaken and disarm the UN Security Council as it has been referring cases to the ICC in order to clamp-down conflicts. As indicated above, the International Court of Justice is not empowered to prosecute individuals for any sort of international crime committed.
Secondly, this resolution would erode the credibility of the ICC on matters of international justice. If such a large group of members (34 African states) implements the resolution and withdraws, this would create a perception that the court is not being just to its member-states. The invasion of Iraq by the US, supported by Britain with a lie that there were weapons of mass destruction and ultimately resulted in the toppling and killing of President Saddam Hussein in 2003, created a perception that leaders of Western countries are immune from prosecution by the ICC.
This inconsistency by the ICC, besides the prosecution of the above-mentioned and other leaders of the Global South, has tainted the image of the court. I doubt if other countries in the Global South would still have the firm belief in the court as a credible arbiter on matters of international crimes after the passing of the resolution by AU members.
Lastly, and most importantly, this resolution might have an impact on the call for the expansion of the UN Security Council’s membership. For years, African leaders and leaders of the countries of the Global South have been calling for the reforms to the Security Council, particularly its membership.
They cite the fact that five countries are the only one’s empowered by the UN Charter to take decisions on matters of international peace. African leaders might therefore be boldened by their decision to withdraw from the ICC, to also radically address the issue of the membership of the UN Security Council.
In the end, with this withdrawal from the ICC, the peoples of the international community are the ones who are going to bear the brunt of the miscarriage of justice by the court. The court has allowed its credibility to be eroded, especially with the case of President Kenyatta and his deputy.
However, the AU should be careful that leaders such as a Burundi’s Pierre Nkuruziza might get off the hook with the resolution and continue to suppress the citizens of their countries. This could be a perfect window of opportunity for corrupt leaders to reduce their countries to rogue states and ultimately evade prosecution. It is also an opportune moment to strengthen the AU's own Court of Justice.
- Frank Lekaba is a Researcher at the Africa Institute of South Africa (AISA), research programme of the Human Sciences Research Council (HSRC). His views do not necessarily reflect those of AISA-HSRC.
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