By Phillip Hammond
Should sitting heads of state be liable to prosecution by international tribunals? That was the question at the heart of 'Prosecuting Presidents', a conference organised by the Royal United Services Institute and the Centre for Foreign Policy Analysis in London last Friday. The event presented a refreshingly open and critical debate about the role of the International Criminal Court (ICC) and the problems of pursuing 'international justice', but it also highlighted the fact that the various criticisms raised against the court are often contradictory.
Some of the criticism of the ICC came from surprising quarters. In his opening keynote, 'The charge of the law brigade', Guardian journalist Jonathan Steele described the ICC's recent decision to issue an arrest warrant for President Omar al-Bashir of Sudan as an act of folly. Arguing that it had been a 'major setback' to peace negotiations, Steele called for the United Nations Security Council to suspend the warrant. Politics, he said, should trump law, since peace is more important than justice.
The next speaker was Sir Geoffrey Nice QC, formerly the lead prosecutor in the trial of President Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia (ICTY). More recently, however, Nice has been involved with an attempt - supported by leaders of Sudanese tribal groups said to be victims of genocide - to persuade the ICC judges not to issue the warrant against Bashir (1). Telling us that 'nobody should want to be ruled by lawyers', Nice made a number of sharp criticisms of international courts, highlighting their potential for corruption and vulnerability to outside pressure; their rule-bending and relentless publicity-seeking; and the mediocrity of their personnel, chosen for political rather than meritocratic reasons. He also attacked the 'impertinence' of Western lawyers and judges who assume superiority over those they prosecute, observing that the ICTY has no interest in the history, culture or even the humanity of the people it prosecutes.
Such was the critical tone of the opening sessions that Abdullahi El-Tom - representing Darfur's rebel Justice and Equality Movement - seemed slightly incredulous that, as the sixth speaker of the day, he was the first to take an unambiguously positive view of the ICC. El-Tom argued that it would be immoral to require the people of Darfur to live under a 'war criminal', and claimed that 'genocide continues' via the Sudanese government's expulsion of aid workers from Darfur. His arguments and evidence were challenged from the floor by representatives from the Sudanese Embassy, who in turn raised allegations of war crimes against the rebels.
Yet the more powerful challenge came from El-Tom's fellow panellist, Lam Akol Ajawin, a Sudanese member of parliament and former minister. Ajawin spoke as a representative of the Sudan People's Liberation Movement, an organisation which was at war with Bashir's government for 16 years. Arguing that regime change was the unstated agenda behind the indictment of Bashir, Ajawin pointed out that the regime had already changed significantly since the 2005 Comprehensive Peace Agreement which ended the civil war in the south. Outside intervention, as sought by the Darfur rebels, would only prolong conflict and instability, he argued. Like a number of other speakers, Ajawin also observed that by indicting the leader of a state which did not recognise the court, the ICC was violating its own rules; and he noted that in a recent interview chief prosecutor Luis Moreno-Ocampo appeared to advocate the use of legally dubious methods to arrest Bashir (2).
The argument that in prosecuting Bashir the ICC has jeopardised peace efforts is undoubtedly a powerful one, but it raises an important matter of principle. Should the law be applied selectively, to take account of political circumstances? Many - including the ICC itself - would argue that it should not, and that a selective application of justice would undermine the universality of treatment which the law presumes.
Several of the African speakers at the conference raised the opposite objection: that in targeting only African countries the ICC is already highly selective in its application of 'justice'. 'Give Africa a chance', said Silas Chekera, a defence lawyer at the Special Court for Sierra Leone. Chekera did not reject international tribunals outright, but simply called for them not to be imposed. Instead, he argued, African governments should be able to call on institutions such as the ICC if wanted, but in other circumstances should be free to choose a different route, such as a truth and reconciliation commission, an amnesty, or local dispute-resolution mechanisms.
Similarly, Millius Palayiwa, registrar at Christ Church, Oxford, called for 'African solutions for African problems'. Arguing that the humiliation of Sudan's head of state is a humiliation of the country, and of Africa as a whole, Palayiwa angrily rejected what he described as 'organised hypocrisy, orchestrated double standards, and a refusal by the Western world to see and treat Africans as equals'.
Yet while criticism of the ICC for choosing so far only to focus on Africa is compelling, it seems more an argument for reform than an in-principle objection. As London School of Economics professor Tim Allen pointed out, 'most criticisms of the ICC are really assertions that it should be able to do more'. Many critics of the ICC's double standards implied that, were it to bring an indictment against Israel or the US, the court would be far less problematic.
It was striking that speakers on the panel on Zimbabwe - the only one not to feature any critics of the ICC - saw no problem with calling for the indictment of President Robert Mugabe, despite all the criticism of Bashir's indictment aired in earlier sessions. Zimbabwean lawyer Derek Matyszak argued that the country's justice system had become so compromised and corrupted that it was beyond reform: justice had to come from outside. Wilf Mbanga, editor of The Zimbabwean, said that Mugabe's government had 'forfeited' its sovereignty and could not 'hide behind' it. If so, it was suggested from the floor, perhaps the logical next step would be for African heads of state to be appointed by the UN Security Council. Bizarrely, the panellists denied that in calling for the indictment of a head of state they were effectively advocating regime change.
Two speakers at the conference made a more radical case against the ICC: John Laughland, author of a number of books on international tribunals, and Marc Glendenning, a member of the Libertarian Alliance and the director of ICC Watch. Laughland examined the history of prosecutions of heads of state, arguing that the very fact of such a trial is itself a sign that a new political order is coming into being, since 'prosecutorial power is political power'. His main historical reference point was the postwar Nuremburg trial of Nazi leaders, which, he pointed out, was not an international tribunal with universal jurisdiction as is often claimed. Rather, Nuremburg demonstrated that the power of prosecution is an attribute of sovereignty, since the wartime Allies were the de facto political authority after Germany's unconditional surrender.
Seen in this light, complaints that the ICC is both politically selective in choosing its targets and insensitive to political circumstances can be understood as two sides of the same problem: the disconnection between institutions of 'international justice' and any framework of political accountability. Within a democratic nation state, the people's elected representatives set the framework of law, which is then supposed to be applied equally to all citizens. What is different about the ICC, as Mahmood Mamdani has argued, is that it forces people to 'contend with a legal regime in which the very notion of human rights law is defined outside of a political process... that includes them as meaningful participants' (3).
Glendenning developed this idea by locating the establishment of the ICC as part of a broader trend toward 'postmodern governance', a shift which he characterised as a 'political counter-Enlightenment'. Whereas in the modern era rulers were accountable to the ruled, today the elite is isolated from the demos, more concerned with technical 'governance' than with genuine self-government. Modernity saw the rise of the concept of democratic, collective sovereignty and tended towards anti-imperialism, Glendenning argued, contrasting this with the way that figures such as European Commission president José Manuel Barroso now use the language of empire (4). He concluded by calling for a 'new anti-imperialist politics'.
Yet as someone once said, anti-imperialism begins at home. It would be mistaken to think that supra-national institutions such as the ICC or the European Union are the source, rather than only a symptom, of the problems which affect national polities. Nor should we forget that modernity produced imperialism, as well as anti-imperialism. Societies which valued their own sovereignty also opened up the possibility of a critique of the denial of sovereignty to others. Today, if it is widely accepted that prosecuting African leaders accused of war crimes is the 'moral' thing to do, this reflects the close relationship between our own sense of ourselves as autonomous, right-bearing subjects and our ability to see others in the same light.
