Law

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

VK Singh Sudan Bashir

Sudan’s President Bashir is handed over his invitation to attend the India-Africa Forum Summit in New Delhi by Minister of State for External Affairs V.K. Singh in Khartoum. Credit: MEA

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.

ICC prosecutor’s plea

Modi and Bashir at Hyderabad House in New delhi. Credit: PTI

Modi and Bashir at Hyderabad House in New delhi. Credit: PTI

Unlike South Africa, India is not an ICC party. When Bashir accepted India’s invitation, the office of ICC Prosecutor Fatou Bensouda (an eminent African criminal lawyer) pointed to Security Council Resolution 1593 (2005) calling on all states – including those that have not joined the court – to cooperate fully with the ICC. ‘By arresting and surrendering ICC suspects’, the statement added, ‘India can contribute to the important goal of ending impunity for the world’s worst crimes’. Amnesty International and Human Rights Watch were among 21 NGOs calling on India to arrest Bashir.

Recalling that Prime Minister Narendra Modi himself was under a 12-year travel ban to most Western countries at the urging of human rights activists, one wonders about his private reactions to their demand to arrest Bashir. One hint perhaps: Bashir held bilateral talks with Modi on the sidelines of the summit and the PMO tweeted the group photo of the meeting:

India’s official position was that Resolution 1593 is not binding on ICC non-signatories. India was happy to comply with its ‘statutory international legal obligations’ but not necessarily other directives. The Dean of African ambassadors in New Delhi, Ethiopia’s Gennet Zewide, said South Africa’s actions in June had been correct and the ICC could not decide on matters of sovereignty. South African deputy minister Obed Bapela said the ICC had ‘lost its direction’ and the ruling African National Congress intended to withdraw from it.

Sharp criticism by human rights activists of South Africa’s and India’s non-cooperation with the ICC for damaging the world’s only criminal court is misdirected and fundamentally flawed. Grave harm is inflicted by the de facto impunity of those who have been the biggest warmongers. In 2012 Nobel Peace Laureate Desmond Tutu refused to share the stage with former British Prime Minister Tony Blair and pulled out of a scheduled international event in Johannesburg. Those responsible for the suffering and loss of life caused by the 2003 invasion of Iraq, he explained, ‘should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague’.

Equal enforcement for all

The United States, Britain and Israel have been among the countries most heavily involved in war and armed conflict in the UN’s 70-year history. Don’t expect to see any of their political or military leaders in an international criminal dock anytime soon. The ad hoc International Criminal Tribunal for former Yugoslavia tried several Serbs, but no NATO national. Might it have something to do with the tribunal having been located in a NATO country, its budget paid mostly by NATO countries and its reliance on NATO for collection of evidence and enforcement of warrants?

‘There are people who have the power to use international justice or international law to judge others and it does not apply to them,’ Rwanda’s President Paul Kagame said in 2013. India cannot take part in the five-yearly review conferences of the Nuclear Non-proliferation Treaty because it has not signed the NPT. The US has no voice in shaping the evolution of the UN Convention of the Law of the Seas because it is not a signatory, as Beijing points out every time it is lectured by Washington to utilise UNCLOS for resolving its maritime territorial disputes. But, in a travesty of natural justice, countries that refuse to subject their own conduct to ICC jurisdiction – China, Russia and the US (and India whenever it is occupies a seat) – can vote in the Security Council on referring or deferring cases involving other countries to the court.

Justice will not seen to have been done unless criminal law is equally enforced on all violators through a genuinely independent adjudication process. Both core conditions are lacking with the ICC. The military commanders and political leaders of major powers are still shielded from international criminal justice. An initiative meant to protect vulnerable people from brutal national rulers has been subverted into an instrument of power against vulnerable countries.

The ICC never investigated Western forces’ behaviour in Afghanistan nor the US policy of large-scale drone killings. Palestine has sought an ICC investigation of Israel’s conduct as an occupying power. If the ICC declines, its credibility will be in tatters. If the court indicts Israeli generals and prime ministers, Israel’s powerful Western backers will destroy it. The ICC should be mothballed until it is robust and resilient enough to be truly universal.

Ramesh Thakur is professor in the Crawford School of Public Policy, Australian National University

  • Kevin Jon Heller

    1. The ICC did not prosecute Charles Taylor. The Special Court for Sierra Leone did. 2. The ICC is currently investigating torture by the US in Afghanistan.

  • The Wire

    The Wire: Reply

    We are posting this reply by Ramesh Thakur to the comment of Kevin Jon Heller

    1. On the first point, your correspondent is correct,, it was a special court sitting at The Hague. Re-reading my para., I can see it misleadingly implies (without actually saying so) that Taylor was tried and convicted by the ICC. But none of the other statements around it are wrong, remembering that the phrase “the ICC enterprise” includes all efforts at international criminal justice (hence the reference to ICTY also). The correct position (as described in the fully referenced and documented chapter Ramesh Thakur, “International Criminal Justice: At the Vortex of Power, Norms and a Shifting Global Order,” in Charles Sampford and Ramesh Thakur, eds., Institutional Supports for the International Rule of Law, Routledge, 2015, pp. 30–58) is:

    “On 26 April 2012, after a five-year trial by a special court at The Hague that cost approximately $250mn, 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, including murder, rape, mutilation, sexual slavery, and the conscription of child soldiers. The verdict by the three-judge panel was unanimous. Taylor will serve the sentence in a British prison. He thus becomes the first head of state since Nuremberg to be convicted by an international court. International reactions ranged mostly from relief to satisfaction. There were scenes of joy and celebration in Sierra Leone. But in Liberia, most seemed to believe that he was the victim of a US-UK plot. “It was a mockery of
    justice,” said one, while another noted that “No Americans are ever tried in the international courts.”[1]

    2. On the second point:

    There is a complete difference between investigating and issuing indictments (by the prosecutor) and formal charges (by the court itself). There may well be instances in addition to Afghanistan that the court is investigating various matters. The fact remains that to date, no indictments/charges have been laid, in a war that has been going on for 14 years. The bombing of the MSF hospital in Kunduz is the latest allegation of a war crime. The brutal reality is if this had been an Afghan hospital, the US would have got away with the familiar obfuscation and dissembling. But because it is MSF, they are having some difficulty.

    3. As for the charge that I have not adequate research …

    George Monbiot wrote in The Guardian (“Imperialism didn’t end. These days it’s known as international law,” 1 May 2012) that the charges on which the leaders who took Britain and America to war should have been investigated — aggression as “the supreme international crime” – “are far graver than those for which Taylor was found guilty.” But there is little likelihood of this happening anytime soon because “International law remains an imperial project, in which only the crimes committed by vassal states are punished.”

    Deeper and more extensive research, far from weakening or discrediting, strengthens the charge. According to a report compiled by the US Congressional Research Service, the United States used force overseas a total of 368 times in the 217 years from 1798 to 2014 inclusive, with only eleven of these involving a formal declaration of war.[2]

    Of these, in the 192-year period 1798–1989, force was used a total of 216 times, or 1.1 times per year on average. In the 25-year period since roughly the end of the Cold War, the US has deployed force abroad 152 occasions, for an annual average of 6.1; that is, more than five times as frequently as previously in its history. But not once has any US soldier or political leader been held to international criminal account. Not all non-Americans subscribe to the view that Americans are so uniquely and universally virtuous that they are genetically incapable of committing war crimes.

    3.1. After the Iraq War, PM Blair and some of his cabinet colleagues (such as the defence and foreign ministers) were
    accused of crimes against humanity by Greek lawyers who lodged a case with the ICC on 28 July 2003.[3]

    The doctrine of universal jurisdiction was employed also to threaten prosecution against President George W. Bush and General Tommy Franks (commander of the US forces in Iraq).[4]

    Defense Secretary Donald Rumsfeld retaliated by warning that if US officials could no longer travel to Brussels without fear of prosecution, then the NATO headquarters would clearly have to be relocated to another country.[5] In July 2003 Belgium amended its controversial law on universal jurisdiction and restricted trials in Belgian courts to crimes committed or suffered by its citizens or residents.

    3.2. Washington vetoed the extension of the UN’s peacekeeping mission in Bosnia in 2002 because of the failure to get a blanket and permanent immunity from prosecution of US peacekeepers by the ICC. This damaged the integrity of the court and treaty negotiations and the credibility of the Security Council itself. Lloyd Axworthy, who as Canada’s foreign minister had been a powerful voice in the establishment of the ICC, warned that “the compromise acquiesces to the Security Council’s questionable right to amend by interpretation a treaty arrived at in open discussion by representatives of more than 100 nation states in a founding convention.”[6]

    Pierre Schori, Sweden’s ambassador to the UN, evoked George Orwell’s Animal Farm: “we are all equal but some are more equal than others.”[7]

    The US sought and got many bilateral deals exempting its soldiers, threatening financial punishment if in effect the countries wanted to be lawful vis-à-vis the ICC.

    3.3. The alleged atrocities of Bashir and other Africans in the dock were limited to national jurisdictions. The Bush administration asserted and exercised the right to kidnap suspected enemies in the war on terror anywhere in the world and take them anywhere else, including countries known to torture suspects. Several Western allies colluded in the extraordinary rendition. Even the lawyers who wrote the justifications providing legal cover for torture have not been charged.[8]

    Amnesty International has sharply criticized the US for a systematic failure to meet its international obligation to address IHL violations in the practices of rendition, enforced disappearance, and torture and ill-treatment in the post-9/11 war on terror.

    A celebrated case in Canada involved Maher Arar where US courts, which hold foreign governments to account for acts of torture committed against non-Americans in foreign jurisdictions, refused to hold accountable US officials for an act of rendition to torture committed on US territory. “The Supreme Court’s refusal to consider the claims of Maher Arar, an innocent Canadian who was sent to Syria to be tortured in 2002, was a bitterly disappointing abdication of its duty to hold officials accountable for illegal acts. The Bush administration sent Mr. Arar to outsourced torment, but it was the Obama administration that urged this course of inaction.”[9]

    The same court of appeals that rejected Arar’s suit “has regularly entertained lawsuits for torture and other gross human rights violations against foreign government officials, even when the wrongs were committed wholly outside the United States and affected only foreigners.”

    Italy remains the only jurisdiction in which CIA agents have been prosecuted for the practice of abducting terror
    suspects and transferring them to third countries. In 2009, an Italian court convicted 23 CIA employees, tried in absentia, of having abducted the Muslim cleric Osama Moustafa Hassan Nasr from a Milan street in 2003.[10] The verdict was upheld in 2012.[11]

    3.4. The Bashir indictment itself was riddled with allegations of prosecutorial misconduct and suspicions on the timing of the indictment issued by the prosecutor, as it buried the story about his own possible misconduct. The alleged problems with
    his style of functioning and his legal acumen (brash behaviour and management style, erratic decision-making and politicization of the office of special prosecutor alienated subordinate staff and ICC officials alike) are summarized in: David Kaye, “Who’s afraid of the InternationalCriminal Court?,” Foreign Affairs, 90:3 (May/June 2011).

    The first special prosecutor was morally compromised and should probably have been replaced. The charges against him simply did not pass the “smell test” for such a sensitive position. The ICC did not distinguish itself in its handling of the affair:

    “But gender activists have their own special reasons for mixed feelings about Moreno Ocampo. Their worries are not pedophile priests in Argentina, but the Prosecutor’s personal conduct at the Lord Charles Hotel, in the verdant hills of South Africa’s wine country.

    “The scandal came to light on October 20, 2006 when the Prosecutor’s Public Information Adviser, Christian Palme, filed an internal complaint alleging that Moreno Ocampo had “committed serious misconduct . . . by committing the crime of rape, or sexual assault, or
    sexual coercion, or sexual abuse” against a South African journalist nineteen months earlier.17 Palme argued that the Prosecutor’s conduct had caused serious harm to the reputation of the Court and called on the States Parties to remove him.

    “The full story of what happened in the Lord Charles Hotel, three days before the Security Council referred the conflict in Darfur to the ICC, is unlikely ever to be known. Moreno Ocampo has denied committing rape. But there is no evidence that he has denied the veracity of a recording which suggests that his behavior in the hotel fell far short of the “high moral character” demanded by the Rome
    Statute.18

    “For Yves Soroboki, Moreno Ocampo’s spokesperson, March 28, 2005, began with a phone call from the journalist, thanking him for having arranged an interview with Moreno Ocampo but saying the Prosecutor was making her “a little nervous.” “I have a problem because he doesn’t want to leave,” she told Soroboki, who later reported the conversation to Palme. “I’m trying to leave and go to the beach but the Prosecutor wants to come with me, so what should I do? . . . I think he has ulterior motives.” Later that day, the journalist called Sorokobi again and told him that the Prosecutor had, in Sorokobi’s words, “forced himself on her.” Two days later,
    the two spoke for a third time and Sorokobi recorded the conversation. Although the journalist is weeping, and often unintelligible, she can be heard saying: “He took my [house and car] keys . . . Had to do that to get out of this . . .” Soroboki told Palme, who recorded their conversation: “She said that was the only way he would let her go.”

    “In December 2006, after interviewing the Prosecutor and the journalist, a panel of ICC judges found Palme’s complaint “manifestly
    unfounded” and asked him “to obtain all copies of taped conversations between Ms […] and Mr Sorokobi and hand them to the President for destruction.” Soon after, Moreno Ocampo dismissed Palme, summarily and immediately, for “serious misconduct.” Palme appealed to the Court’s internal Disciplinary Advisory Board, which recommended that he be reinstated. Moreno Ocampo ignored the
    recommendation. Palme then appealed to the Administrative Tribunal of the International Labor Organisation (ILOAT), which has jurisdiction to settle labor disputes in many international organizations. The ILOAT judgment, made public on July 9, 2008, was harshly critical of the Prosecutor and fully exonerated Palme, quashing his dismissal. It found that his complaint was neither made falsely
    nor with malicious intent. Rather, the Tribunal said, Palme had “reasonable grounds” for believing sexual misconduct by Moreno Ocampo: the journalist, it said, had “indicated unambiguously that the prosecutor ‘took [her] keys’ and she had consented to sexual intercourse ‘to get out of [the situation].’” Sorokobi’s evidence was “secondary evidence but, depending on the circumstances, it may have been probative in criminal proceedings.”

    The ILOAT found that Moreno Ocampo had committed a “breach of due process” in firing Palme and ordered the ICC, on behalf of the Prosecutor, to pay Palme 248,000 euros. Human Rights Watch’s letter of September 2008 drew attention to the ILOAT ruling, the economic costs to the court—”already under strain to account responsibly for its budget to states parties”—and the impact on staff morale. The rights group said it was “disturbed” that the Prosecutor had ignored the recommendation of the Court’s own Disciplinary
    Advisory Board.

    (From Julie Flint and Alex de Waal, “Case Closed: A Prosecutor Without Borders,” World Affairs (Spring 2009). http://www.worldaffairsjournal.org/article/case-closed-prosecutor-without-borders.

    Notes

    [1] Quoted in Geoffrey York, “Liberians decry “mockery of justice” in Charles Taylor verdict,” Globe and Mail (Toronto), 26 April 2012,
    http://www.theglobeandmail.com/news/world/liberians-decry-mockery-of-justice-in-charles-taylor-verdict/article2414768/, accessed 27 April 2012.

    [2] Barbara Salazar Torreon, Instances of Use of United States Armed Forces Abroad, 1798–2015. CRS Report R42738
    (Washington DC: US Congress, 15 January 2015).

    [3] Helena Smith, ‘Greeks Accuse Blair of War Crimes in Iraq’, Guardian (London), 29 July 2003.

    [4] See George Monbiot, ‘Let’s Hear it for Belgium’, Guardian, 20 May 2003.

    [5] Noell Knox, ‘Rumsfeld Warns Belgium about War-crimes Law’, USA Today, 13 June 2003. Not for the first and probably not for the last time, US officials ignore the directly equivalent practice of US courts in subjecting foreign officials and officers to the jurisdiction of American courts. See Robert H. Bork, ‘Judicial Imperialism’, Wall Street Journal Europe, 18 June 2003.

    [6] Lloyd Axworthy, “Stop the U.S. foul play,” Globe and Mail (Toronto), 17 July 2002.

    [7] Pierre Schori, “What we need is a cooperative America,” International Herald Tribune, 14 August 2002.

    [8] See David Cole, “The Torture Memos: The Case Against the Lawyers,” New York Review of Books, 8 October 2009, pp. 14-16; and Jorge Heine and Ramesh Thakur, “A global taste for justice,” Ottawa Citizen, 30 April 2009.

    [9]Editorial, “No price to pay for torture,” New York Times, 15 June 2010.

    [10] Rachel Donadio, ‘Italy Convicts 23 Americans for C.I.A. Renditions’, New York Times, 4 November 2009.

    [11] Andrea Vogt, ‘Italy upholds rendition convictions for 23 Americans’, Guardian, 20 September 2012.