The Huffington Post published an article a few weeks ago titled "What Gaddafis arrest could mean for the ICC?". It centers on the growing problem facing the court: the perception of double standards among poor, marginalized countries against more powerful states from the European Union but more particularly, permanent members of the Security Council. Richard Dicker from Human Rights Watch provides a persuasive argument.
"It may be obvious," he said, "but neither the United States, Russia, or the People's Republic of China is a party to the ICC treaty. The fact that leaders from smaller, weaker governments are more likely to find themselves facing an arrest warrant than the leaders of the most powerful governments is a reflection of the disparity in power and wealth that's so profound in the world."
Dicker pointed to several specific situations where, according to him, these powerful governments may have played a role in preventing the court from pursuing cases in countries they protect. "I'm thinking of the Chinese protecting the military junta in Burma, I'm thinking of the United States protecting those in Israel who may be responsible for war crimes in Gaza, and the Russians for example having protected Bashir Al-Assad up until now," he said.
This point ties into Nigeria's U-turn on the court. Nigeria were initially very enthusiastic about the court and played an important role in its creation. Furthermore, they were also initially resistant to an Article 98 agreement with the US (as is evident from the recent release of Wikileaks Cables) but since then, the Nigerian government has grown skeptical towards the court.
From the Huffington Post article, it refers to a statement made by the former President of Nigeria Olusegun Obasanjo which was passed to Kamari Maxime Kamari (author of 'Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa). She said that the former President had directly told her that the Nigerian government was "initially enthusiastic" about the ICC but that their enthusiasm had since dried up. She attributed their pessimism, in part, to a sense that Western powers are using the institution to deprive African countries of their autonomy.
"The countries that are now part of the global south have historical relations to Western nations, relations that are fraught with questions of colonial power and imperialism and formal agreements that may or may not have served the countries' long-term needs," she said.'
It is important to bear in mind that this argument has a major hole in it. Most of the ICC cases have come from government referring cases to the ICC (Ugandan government referred LRA leader Joseph Kony for example to the ICC) Opposition among African states to the ICC has only become particularly pronounced since a Head of State, that is Sudanese President Omar al-Bashir was issued an arrest warrant.
However, I think the real problem among some African government's is not necessarily the perception of double standards but does concern reduced autonomy. There is uneasiness deriving from the ICC limiting a government's wriggle room to manoeuvre a peace deal with intractable rebel leaders. With an ICC indictment hanging over the head of one key individuals to a conflict, it is unlikely the indictee will give up arms if doing so will immediately see that individual sent to the Hague. This is the great dilemma at the heart of the international criminal justice project.
The article can be found at the following address: http://www.huffingtonpost.com/2011/08/24/gaddafis-arrest-international-criminal-court_n_935275.html