by Max du Plessis

It has become fashionable to criticize the International Criminal Court for its exclusive focus on African cases. Developing nations, particularly from the South, now repeatedly and rightly complain about the skewed power relations in the UN Security Council. The imbalance of power within the council has come sharply into focus through its influence over the court.

A decade after the court started work, the Security Council has found the common purpose to refer only two cases to it, both of them African: crimes committed in Libya during Colonel Gaddafi's final days, and by the regime of Omar al-Bashir, the President of Sudan. It has repeatedly failed to do so in respect of equally deserving situations, such as crimes committed by Israel, and most recently in respect of the crimes unfolding before our eyes in Syria. Despite recent accusations that President Assad's government was responsible for the use of chemical weapons in Syria, for nearly two years Russian and Chinese threats of a veto have kept him safe.

Not only is this a tragedy for the Syrian victims of war crimes, it is also a telling example of the illusion of universal international criminal justice and the reality of politics frustrating the ideals of the ICC.

We now need to reflect soberly on the reality that all the cases opened by that court are in Africa. It doesn't help to insist that these African cases deserve the court's attention. Of course they do. But while crimes in Syria, or Palestine, remain beyond the court's reach, it becomes impossible to claim that the international criminal justice project is truly universal.

Ultimately, it is a question that any first-year law student is taught to identify: one of fairness and equality. So long as the Security Council and the ICC ensure that the court busies itself exclusively with African crimes, and ignore or evade dealing with the sins of Syria, or the plight of the Palestinians, the principle of equality before the law becomes little more than a platitude.

British newspapers reported widely on the refusal by Archbishop Desmond Tutu, in September last year, to share the stage with Tony Blair at a leadership conference in Johannesburg. His refusal was motivated by his concern about the double standards of international criminal justice. On what grounds, the archbishop asked, do we decide that Robert Mugabe should go to the ICC and Tony Blair, one of the architects of the invasion of Iraq, should join the international speakers' circuit?

Archbishop Tutu has expressed a powerful moral view that the international criminal justice project is shot through with hypocrisy. While it is easy to dismiss the self-serving criticisms of the ICC by African despots and warlords, it is not possible to do so in response to the archbishop.

Another reason why the ICC perception problem can no longer be ignored is that this exclusive focus on Africa affords African tyrants and elites a gift, an excuse and a weapon. It allows them to draw attention away from African crimes by insisting that the spotlight be kept trained on the skewed nature of international criminal justice. And it allows them to do so with a straight face. It gives them a stick with which to beat the ICC.

It is no coincidence that the African Union's resistance to the ICC reached its shrillest levels the moment the court, through the Security Council's referral of the situation in Sudan, decided to focus on the crimes allegedly committed by a sitting African head of state, President al-Bashir. As the net fell on him, it became clear in a flash that his fate might be shared by other African elites.

Against this background, and in view of the Security Council's morally ambiguous record, we should all applaud news of a letter sent in January to the Security Council by Switzerland calling for a referral of the situation in Syria to the ICC. It was signed by 57 states. African signatories included Botswana, Libya, Seychelles, and Cote d' Ivoire. South Africa, sadly, was absent from the list. But perhaps more important is that the states on it reflect a global crosssection of countries, including Japan, Costa Rica, South Korea, Australia, Samoa, and Andorra, and every member of the European Union save for Sweden.

It is such efforts that demonstrate that a win-win situation is possible. That potential would be realized where the ICC does justice as it should to the African victims of the cases that are rightly before it and does justice to the victims of such crimes outside of Africa who equally deserve the court's attention.

It remains to be seen whether the members of the Security Council will embrace this challenge to pursue a common goal of justice for Syrians suffering under a brutal regime. If they do not, it will be further sad confirmation of the illusion of an international criminal justice system that cares equally for each of the world's people.

It is in the interests of justice and the reputation of the ICC that it stretch its work beyond Africa. By doing so the court will deny powerful African elites the stick that they so easily and distractingly wave at the ICC. It will also -- where the evidence shows a need for the court's intervention -- be a means by which to pay homage to the principle of equal justice under law.

Max du Plessis is a barrister, Associate Professor, University of KwaZulu-Natal, Durban, and senior research associate with the International Crime in Africa Programme, Institute for Security Studies

 

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