Thursday, November 5, 2015

RAMESH THAKUR - Did India Just Sound the Death Knell of the International Criminal Court?

Local commentary on the third India–Africa Forum summit held in New Delhi on 26–29 October has focussed on India’s expanding strategic footprint in Africa. Globally, however, the most consequential impact of the summit may be felt in a key plank of the normative architecture of world order. One of the guests who was welcomed in Delhi – Sudan’s President Omar Hassan al-Bashir – is under indictment from the International Criminal Court (ICC), whose viability must now be under serious question.

Superficially, his presence signified India’s disrespect for the rule of law. In reality, it marks a growing rebellion against a normative enterprise of international criminal justice being subverted into a political project by the previously powerful West to maintain control over the rest. The de facto impunity of Western leaders and generals for possible international criminal conduct becomes increasingly unsustainable in a shifting global power balance. Either we will have universal justice or the ICC enterprise will collapse.

The 123-member ICC, in operation since 2002, has issued nine indictments, all against Africans. In March 2012, Congolese warlord Thomas Lubanga became the first person to be convicted by the ICC of war crimes for having conscripted, enlisted, trained and used children under 15 in armed hostilities. In April 2012, Charles Taylor, Liberia’s president-cum-warlord from 1989–2003, was found guilty on 11 charges of aiding and abetting several war crimes in Sierra Leone: the first head of state to be convicted by an international court since Nuremberg. Western governments and Western-based NGOs reacted positively to the march of international criminal justice. 

Victims of the violence rejoiced and celebrated. But ICC critics pointed to double standards, the remoteness of The Hague politically as well as geographically from the scene of the alleged atrocities, and the failure of international accountability mechanisms against Westerners.

In 2009, President Bashir became the first sitting head of state against whom the court issued arrest warrants for war crimes and crimes against humanity. Many feared this would jeopardise prospects for peace. Formal requests by the African Union not to indict the president were ignored by the ICC and the UN Security Council, which has powers of referral and deferral. This has generated growing anger and defiance by African governments. After the ICC issued arrest warrants for President Uhuru Kenyatta and his deputy William Ruto on charges of instigating violence following Kenya’s disputed 2007 election, in December 2010 MPs attacked the ICC as a colonial, anti-African court and urged Kenya’s withdrawal. The ICC charges against Kenyatta, strongly criticised by the AU in 2013, were formally withdrawn last year.

An ICC indictee is required to be arrested and extradited if he should travel abroad. Bashir has been to several countries, most recently to South Africa, whose government defied its own courts in permitting him to leave peacefully after an AU conference in June. Over 100 international and African NGOs expressed ‘deep disappointment’ with Pretoria.

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