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Double Standard Justice: The ICC and Lessons from Darfur

August 15, 2012

The rule of law is “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws”. This concept has two connotations. First, rule according to law which implies that what is permissible and what is not permissible is established by the law and nothing else. Second, rule under law according to which no one is above the law: if the president of a country and a lay citizen breach the same law they will be held liable in the same fashion. The neutrality and acceptability of justice rests on these two principles.

In 1998 the International Criminal Court (ICC) was established “to help end impunity for the perpetrators of the most serious crimes of concern to the international community”. In other words, the rule of law was to apply at the international level. If rulers or citizens of any country commit a serious crime (i.e. genocide, crimes against humanity or war crimes) and they cannot be tried by any national tribunal then the ICC will take up the task. Impunity’s days across the globe were numbered. The experience of the Court since its establishment shows however that if it aims to end impunity, it is the impunity of somebody while  somebody else is shielded from the very same justice. And the choice of who is punishable and who is not does not happen randomly. To be sure, the cases of Darfur and Eastern Congo show how for the ICC everybody is equal in front of the law but somebody is more equal than others.

To Indict or Not To Indict? In October 2004 the UN created the International Commission of Inquiry on Darfur. As Mamdani explains in his book “Saviors and Survivors”[1], the Security Council asked the commission to report on violations of international humanitarian law and human rights law in Darfur by all parties. Three months later the commission concluded that crimes against humanity and war crimes were being committed since 2003 in Darfur, yet no genocide was taking place given that the intention to eliminate a specific group on the basis of race or ethnicity was lacking. Perpetrators of those crimes were according to the Commission to be found both within the government and its proxy counterinsurgent militias and within the rebel groups. Building on the findings of the Commission, the Security Council referred the situation in Darfur since 2002 to the Prosecutor of the ICC in 2005.

The point of contention is that war crimes and crimes against humanity are reported to occur in other regions such as Iraq and Eastern Congo. Yet the international community under the banner of the Security Council turned a blind eye to these cases. The case of Eastern Congo is only the more recent. Early last month the Group of Expert on the Democratic Republic of Congo published a report which offered prime facie evidence of the fact that the Rwandan government and military are supporting, enabling and supplying the rebels. As Richard Dowden explains on African Argument, this symbiosis between the Rwandan government and rebels groups in Eastern Congo gave a free hand to local Tutsis which engaged into massacres and mass rapes in the local communities. This raises the question: why the ICC prosecuted the Sudanese government for supporting militias groups which engaged into crimes against humanity while it did not prosecute the Rwanda government which support proxy militias in Eastern Congo committing the very same crimes against humanity?

Who Calls The Shot? The answer has to do with who call the shot and who has the power to decide who, where and when is to be referred to the ICC. The short answer is the Security Council that is the powers which have a permanent seat in the council. According to the Roman Statute in fact, “the Court has jurisdiction over situations in any State where the situation is referred by the United Nations Security Council acting under Chapter VII of the UN Charter”. This institutional set up confers the states sitting in the Security Council the power to say to whom and when the Roman Statute applies. If the Sudanese government did not toe the line of the Western powers, the Rwanda government has development programs which western donors love to fund[2]. As a result, the Security Council gave the green light for the prosecutions of war crimes and crimes against humanity in Sudan while turning a blind eye to the perpetrators in Rwanda. The problem is that if some states have the power to say who is under the law and who is above it, the neutrality and therefore the legitimacy of the ICC are inevitably compromised.

The Impartial ICC? The ICC however does end impunity where conceded the possibility to do so and it does it a neutral way when it can. Mamdani’s argument is that the ICC was an instrument utilized by the Western power to label one side of the conflict as genocidaire while shielding the other side from justice by labeling them as resisting a genocide. This strategy fit nicely into the War on Terror in which the Arabs were the terrorists and the genocidaires and for that reason were to be punished. This thesis seemed to be confirmed by the first step of the ICC which issued warrant only to government’s representatives while rebels who were alleged to have committed war crimes were not indicted. Since then however the Court moved to indict also the leaders of the insurgency (Sudan Liberation Army and Justice and Equality Movement). It is true that the charges against government officials ( i.e. torture and rape against civilians, genocide) are of greater gravity of those charges against rebels’ leader (i.e. attack against peacekeeping forces). However this are in sync with the Commission of Inquiry’s findings which reported that attacks on civilians were carried out by the government armed forces and by the counterinsurgent militias on a widespread scale[3] whereas rebel forces did not seem to have systematically targeted civilians population. The importance of such move is that it conveys an important message: none of the warring parties is above the law.  For the ICC to increase its legitimacy one should carve out for it a space of independence to decide whom and when to prosecute. Until then everybody will be equal in front of the law but somebody will be more equal than others.

[1] See Chapter 1 “Globalizing Darfur”

[2] Richard Dowden makes this point about Rwanda in his post on African Arguments

[3] See section 6 “Violations Committed by the Parties”

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