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

Politics of international criminal justice 157
fundamentally baseless. 37 To aggravate the situation, in addition to the
complete breakdown of political and social order that followed the
invasion, were allegations of serious human rights violations committed
against Iraqi prisoners of war by US military personnel. 38 The cases that
emerged from the Abu Ghraib prison in Iraq were shattering to the
conscience of humanity and the impunity or façade of justice that followed
only served to add insult to injury. If there was any time the ICC was
required to act against the US military and political leaders involved, it was
then. Of course, from a realistic perspective the prospect of such a course
of action is ludicrous, given the fact that the US is not party to the Rome
Statute, nor is it a member of the UN Security Council, the only body with
the mandate to subject a non-party state to the ICC’s jurisdiction. The veto
power held by the US and her allies, France and Britain, made it even more
impossible for the prospects of any action. To the already skeptical AU,
this state of affairs is a strong affirmation of the skewed nature of global
politics and has adverse implications for the authenticity international
criminal law. Issues of justice, international criminal justice included, have
become mired in – some might even say held hostage by – big power
politics.
Moreover, the response of the ICC Prosecutor, upon being notified
and receiving numerous complaints about the Iraq situation requiring him
to investigate possible international crimes, casts his office and the Court
in a bad light. Indeed, in the month of February 2006, he publicly
acknowledged that he had received many complaints regarding the Iraq
situation but that he had no competence to prosecute the crime of
aggression (which had yet to be defined). 39 Oddly, relying on information
partly furnished by British authorities, a party to the war on terror, he
concluded that there were no reasonable indicia of elements of genocide,
crimes against humanity and war crimes and, importantly, that the
requisite gravity threshold had not been achieved. 40 The question then
truly begs how this threshold was achieved in the CAR situation, despite
the low number of reported victims over a two-year period. Not only has
this explanation been unsatisfactory in Africa, but also in other parts of the
world with various commentators contributing to the debate. 41
37 Cuba Centre for Constitutional Rights Report on Torture and Cruel, Inhuman, and
38
Degrading Treatment of Prisoners at Guantanamo Bay (2006) New York.
‘Army Private is convicted in Abu Ghraib abuse case’ Associated Press 26 September
(2005); ‘Private gets 3 years for Iraq prison abuse’ 28 September (2005) New York Times;
‘England convicted of Abu Ghraib abuse, Washington Street Journal Online 26 September
(2005); ‘The reach of war: The verdict; US soldier found guilty in Iraq prison abuse case
39
15 January’ (2005).
‘Statement on communication concerning the situation in Iraq’ Office of the Prosecutor
40
ICC, 9 February 2006.
K Chitiyo and L Devlin ‘The International Criminal Court and Africa’ (2008) 28 The
41
Royal United Services Institute Newsbrief 69.
As above.