Double Standards and a Nigerian U-turn on the Court.

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 

Vatican officials to be prosecuted by ICC?

This is a very interesting case being put forward by the Centre for Constitutional Rights and Survivors Network for those abused by Priests. READ http://opiniojuris.org/2011/09/13/can-the-vatican-be-subject-to-icc-prosecution/. I am not sure these advocacy groups will be able to satisfy the jurisdictional requirements in order to make the ICC operative but it should guarantee further bad press for the Vatican (which many suspect is the underlying intention).

Comments below offer interesting takes on the issue of jurisdiction and establishing criminal linkages between the Vatican top brass and crimes committed by priests in places like Ireland.

Why did African states commit to international criminal justice?

Currently, my PhD is devoted to answering this question. It is tough question to answer as there is very little public pronouncements explaining the reasons for their support. It is a bit of a mystery really as this region is uniquely vulnerable to the court's prosecution. I have identified the following possibilities based on theories highlighted by the international criminal justice literature and  explanations that I have inferred from the facts I've accumulated.

(1) States were persuaded to commit to the ICC after sustained exposure to a campaign organized by global civil society and like-minded states. In the simplest terms, angelic "states" like Canada and EU member states and NGOs like Amnesty International put forward a compelling argument: "civilized states support ending impunity for egregious human rights violations. Are you a civilized state or a pariah state?"

(2) This is somewhat related to the previous explanation. African states that have been democratizing over the last two decades have witnessed the opening of new political channels to pressure their governments. These channels were utilized by a highly committed civil society campaign. The governments in turn responded by supporting the ICC.

(3) African states supported the ICC in response to pressure from key donors like the EU. This would appear to be the most obvious explanation. These states were (still are) highly reliant on donors to pay for the functioning of their country (or simply to maintain their patronage network). For the EU, the ICC represents an important means of asserting their normative identity on the world stage.

(4) States which lack the means to quell rebel threats in areas free from governmental control saw commitment to the ICC as an opportunity to not only assist the government in arresting these rebels but also in delegitimizing their cause. We are talking about states like the DRC, Uganda and CAR.

(5) Somewhat related to the above explanation but whose instrumental use of the ICC is quite different. Governments which have been afflicted by conflict committed to the ICC to signal to their domestic opponents  that they were committed to peace and no longer sought to use excessive force.

These I feel are the most plausible and the explanations which I am currently testing. The results should provide a key insight into one most puzzling political phenomena over the last few decades: the region's initial embrace of an institution calibrated to reduce the government's discretion over national security as well as prosecute any individual seen have got on the wrong side of the "international community".