The International Criminal Court (ICC) was established on 17 July 1998 when 120 states adopted the Rome Statute which is the legal basis of this organisation. The court, which is based in The Hague, Netherlands, should not be confused with the International Court of Justice (ICJ). The latter is part of the United Nations and deals with legal disputes between UN member states. The ICC, on the other hand, is not part of the UN and has as its stated aims to “exercise its jurisdiction over persons for the most serious crimes of international concern” and to “to put an end to impunity for the perpetrators of these crimes”. The Rome Statute identifies these crimes of concern as genocide, crimes against humanity, war crimes and the crime of aggression. The Rome statute entered into force on 1 July 2002 and so only deals with crimes which took place after this date.
One striking feature about the establishment of the ICC was that the organisation started life without and agreed legal definition of the crime of aggression and so could take no action against those who organised and carried out his crime. This was a rather striking omission, given that as far back as the Nuremberg Tribunals in 1950 crimes against peace were already clearly legally defined as;
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
Furthermore, such was the clarity on these matters at the time, that the chief American prosecutor at the Nuremburg Tribunals, Robert H. Jackson, described the crime of aggression thus:
“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”.
Notwithstanding the existing body of international law, the ICC, at its inception was unable to legally define the crime of aggression which Jackson had described some 50 years earlier as the ‘supreme international crime’ which contained all the other war crimes within itself. Eventually, in 2010 at its meeting in Kampala, Uganda, the ICC established a legal definition for the crime of aggression and the conditions under which such a crime would fall within its jurisdiction after 1 January 2017 when this agreement enters into force. These conditions are essentially two. First, a crime of aggression only comes within the jurisdiction of the ICC if it is referred to it by the security council of the UN. Secondly, a state which is party to the Rome Statute can refer a situation to the ICC if it thinks the crime of aggression has been committed. However, before the ICC can act, it must approach the UN Security Council to find out if this body has determined that a crime of aggression has taken place. In addition, states which are party to the Rome statute can opt out of the court’s jurisdiction with regard to crimes of aggression and those states which are not party to the Rome statute, such as the USA, are specifically excluded from the ICC’s jurisdiction with regard to the crime of aggression. This contrasts strongly with the situation regarding the other crimes with which the court allegedly deals, namely genocide, crimes against humanity and war crimes. The court’s jurisdiction applies to all countries for these crimes, whether or not they are parties to the Rome Statute, as long as they are referred to it by the UN Security Council. Through these mechanisms, the big powers which hold vetoes in the UN Security Council are able to carry out crimes of aggression and all the other war crimes that these entail with utmost impunity. This is why today when aggression, regime change and mass human right violations have become the preferred method for the big powers to secure their interests, the perpetrators of these crimes, like Blair, Bush, Cheney, Rumsfeld, Sarkozy, Aznar, Obama, Hillary Clinton and others are walking around scot free. Therefore it is crystal clear that from its outset, the ICC was not set up to prosecute ‘serious crimes of international concern’ nor to ‘to put an end to impunity for the perpetrators of these crimes’.
Notwithstanding its inability to bring to book the major war criminals of our time, the ICC has busied itself with Africa. Of its 10 cases which the ICC currently lists on its website, 9 are in Africa. Observers note that of the 39 people who have been indicted by the ICC, 38 are Africans. This vigorous pursuit of Africans by the ICC is contrasted with its approach when it comes to others engaged in war crimes. For example, on 5 July in 2013 the Comoros Islands referred a case for consideration to the ICC, since the boats which were in the peace flotilla to Gaza and which were attacked by the Israeli army were registered in the Comoros. On 6 November 2014, the ICC rejected the Comoros case on the grounds that it did not meet ‘the legal requirements of the Rome Statute’.
In reality, the ICC in Africa operates as the legal arm of the USA/EU/NATO axis and its role is to criminalise any opposition to the interference of these forces in Africa. Currently, the former president of Ivory Coast, Laurent Gbagbo, is being ‘tried’ by the ICC in The Hague. His crime relates to his opposition to the French and UN intervention into the affairs of Ivory Coast following the elections in that country in 2010. The contested results of the November election that year proved to be the trigger for massive French and UN interference in Ivory Coast for the purposes of propelling their preferred candidate into power and for overthrowing the then government of Laurent Gbagbo which was viewed as unacceptable to the USA, Britain and France. Working closely with the troops of the so-called United Nations Operations in Cote d’Ivoire (UNOCI) which has been active in that country since 2004, the French troops overthrew the government of Laurent Gbagbo and installed their preferred candidate, Alassane Ouattara, a former IMF employee. Another case in point is that of Libya. In the lead up to the NATO attack on Libya and in order to facilitate it, the ICC rushed out indictments against Muammar Gadhafi and other leading members of the existing Libyan government. In this way, the ICC plays a key role in legitimising the attacks on Africa and criminalising any opposition to these attacks. Not surprisingly, the real war crimes that NATO committed in Libya, including the aggression itself, the ethnic cleansing of places such as Tawergha and the racist pogroms against West African migrants who were living in Libya at the time are of no concern to the ICC.
Clearly recognising the dangerous role that the ICC plays with regard to Africa, there are growing moves on the continent to disentangle Africa from this organisation. In October 2015, South Africa withdrew from it and at the 26th annual assembly of the AU in Addis Ababa in January 2016, the organisation agreed to create a road map for the withdrawal of the AU member states from this organisation. This is a step to be applauded.