Prosecuting International Crimes in Africa - PULP - University of ...

154 Chapter 6
He has added that his office will ’pursue its own judicial mandate
independently’ and will not submit to the political pressure of those trying
to mislead the ICC in the face of other conflicting questions. 26
If the law – and by extension, international criminal law – is a social
science just as much as political science (and international conflict
resolution) then the Prosecutor’s narrow conception of the interests of
justice as applying only to legal practice is at best preposterous. In fact, it
is the kind of attitude that has worked to entrench the recent AU’s distrust
and resistance towards the Court. International criminal justice cannot
operate outside the purview of political reality and neither can political
scientists engaged in conflict resolution mediate and promulgate peace
arrangements without due consideration of international criminal justice.
International criminal justice operates in a political environment and is
more often than not called into action following a political process. In
more cases than not the negotiation of a peace agreement is what opens the
door for the effective operation of international criminal justice. Without a
successful peace process, international criminal justice remains but an
illusion - an objective that international lawyers aspire to. Therefore, the
interests of justice cannot be restricted to the legal realm as advanced by the
ICC Prosecutor, but must reasonably include political realities.
3.2 ICC’s actions as a neo-colonial conspiracy
Having illustrated that the AU’s position that Bashir’s arrest warrant is
prejudicial to ongoing Sudanese peace processes is plausable, the
examination turns to the neo-colonial nature of this action. Neocolonialism
is a term used to describe certain operations at the
international level which alledgedly have similarities to traditional
colonialism of the 16th to the 19th centuries. The contention is that
governments aim to control other nations through indirect means; that in
lieu of direct military-political control, neo-colonialist powers employ
various economic, financial and legal policies to dominate less powerful
countries. 27 The effect is de facto control over targeted nations. While the
first point discussed above is clearer and has a robust foundation in theory
and practice, the neo-colonial argument can easily be relegated to the
realm of conspiracy theories if not well-posited by its proponents. Hence,
the following section endeavours to provide that explanation under two
different headings: (a) Africa’s colonial legacy; and (b) American
exceptionalism or the ‘double standard’-problem.
26 Policy paper (n 25 above) 8.
27
I Gasssama ‘Africa and the politics of destruction: A critical re-examination of neocolonialism
and its consequences’ (2008) 10 Oregon Review of International Law 338.