- RS Sanjanaa and Barrister Tapas K. Baul
International Criminal Law (ICL) is one of the forms of public international law that has sought to hold perpetrators liable for the most serious crimes concerning the international community. In pursuance of this, the International Criminal Court (ICC) and the other ICL tribunals have been praised for their contribution to achieving justice, protecting victims and deterring future crimes.
However, none of these legal bodies are devoid of criticisms. For example, ICC is criticized for its selective justice process. Birju Koteja stated that not only does ICC target African countries for cases, but also it overlooks the crimes committed by the government forces of some member states. David Bosco gave examples of selective use of proprio motu power of the Office of the Prosecutor (OTP) in two situations, i.e., the situation in Uganda and the Situation in Cote d’Ivoire. The same allegation is made by former Prosecutor of ICC Mr. Ocampo, stating that ICC’s statute needs to be amended if it wants to try Russia for committing crimes of aggression in Ukraine.
This phenomenon of selective justice has been described to be the settling of differences between the subjects of justice. Historically, ancient civilizations and even Europe in the middle ages, chose not to enforce the laws of war against nationals when it came to war crime trials. The Nuremberg and the Tokyo trials furthered this and introduced the concept of victors’ justice, which portrayed one-sidedness in trials. This phenomenon thereby imposes questions on both the legality (in terms of the truly independent nature of prosecution), and legitimacy (in terms of freedom from political motivations, power and patronage), of the international criminal justice process.
The authors thus seek to contribute to the ongoing discourse for an impartial and fair international criminal justice system in the context of selective justice in ICL. In this light, the authors explore how the ICC’s excessive focus on Africa and resistance in prosecuting Western leaders raise concerns about the impartiality and legitimacy of the international criminal justice process. They highlight the impact of political and economic coercion on these institutions. They further explore the selective justice phenomenon in the other international criminal tribunals to showcase that this is a universal experience. The paper concludes by acknowledging the complexity of the global context and the need for continued efforts to address selective justice in international criminal law.
[II.] Selectivity in ICC (excessive focus on Africa)
Firstly, the issue is not with the excessive focus on Africa, but rather on the relative lack of focus on other regions. All 31 defendants before the ICC have been from Africa. And, all 10 convicts are also Africans. This naturally suggests that human rights violations are more prevalent in this continent than the rest, even though in actuality, this is an inaccurate picture of global human rights violations. A study by Open Societies indicated that out of the 53 states that were uncovered to engage in mass disappearance and torture of individuals, 31 of them were parties to the Rome Statute. Yet, no action was taken to pursue this.
Further, this has undermined the legitimacy of the national courts and discouraged the African states from cooperating with the ICC. One such example was when Jean Ping in 2011 declared that the African Union would not cooperate with the ICC after the indictment of Muammar Qaddafi, citing discriminatory practice of the ICC. In pursuance of such instances, the African Union passed a non-binding resolution in 2017 to support a collective withdrawal from ICC which was followed through by Burundi, Gambia and South Africa. This is in stark contrast to when Dullah Omar had represented South Africa at Rome as an enthusiastic participant at the prospect of creating an impartial court.
One major reasoning which has been used to justify ICC’s over-focus on Africa is that the national courts are insufficient to handle the scale of the conflict to the international fair trial standards. But going by this standard, despite Rwanda also being on the same range, the ICTR has referred several cases to it including the most notable case of Jean Uwinkindi. Similarly, the ICC also allowed Guinea to its own processes after preliminary investigations for the death of the protestors in 2009.
[III.] Selectivity in ICC (Resistance in Prosecuting Western Leaders)
The ICC has clearly turned towards a hierarchical system of justice. Robin Cook had bluntly stated that “this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.” For instance, when dealing with British war crimes in Iraq, Prosecutor Moreno-Ocampo halted the investigation stating that the number of victims did not satisfy the gravity threshold. However, it went on to launch preliminary examination in North Korea despite it having the same scale of victims.
When Fatou Bensouda had launched an investigation into the Afghanistan situation for serious crimes conducted by U.S. including the black site program, the ICC in 2019 denied authorization for it. It said that the political climate was unfavorable. While this decision was later overturned in an appeal, U.S. then took drastic measures by imposing sanctions on the Prosecutor, ICC officials and even their families. It further blocked the visa of all of them and froze their assets in U.S. This comes in light of John Bolton declaring that the ICC is “dead” to U.S.
In 2021, Prosecutor Karim Khan deprioritized an investigation into war crimes in Afghanistan by U.S. citing viability and budgetary constraints. But this was immediately followed through by the largest ever investigation in Ukraine for which he sought voluntary financial assistance from the ICC member states. This reflects the double standards of the Court. Furthermore, even for U.S.’ ally Israel, the ICC has refrained from authorizing an arrest warrant despite it engaging in investigations since 2021. The Prosecutor did not even visit Palestine for investigation unlike how he visited Ukraine four times in the same year. Similarly, the ICC and the European Union have even supported the decision to open a hybrid tribunal in Ukraine for prosecuting the crime of aggression by Russia. No such measure was taken by the ICC in prosecuting U.S. or UK for crimes in Afghanistan or Iraq.
All this seems to suggest that the ICC is an instrument of political and economic coercion. Political coercion could take shape as interference with investigations and trials such as the Hague Invasion Act which allows U.S. to use military force in halting investigations of the ICC against its officials. The Act also allows withdrawal of U.S. military assistance to countries ratifying the Rome Statute. U.S. also possesses influence over international institutions as was in the case of U.S. quitting the UNHRC citing concerns over its alleged anti-Israel bias, while it was an attempt to influence the UNHRC’s activities. Countries such as U.K. on the other hand, hold position in the Assembly of State Parties which is responsible for election of judges and the selection of the prosecutor. Even the European Union for that matter holds influence as most of the ICC’s crucial positions that are responsible for investigation and preparing cases, are filled by Europeans.
Economic coercion is enabled primarily through the ‘Status of Force Agreements’ that U.S. has entered into with several countries which disallows the handing over of U.S. officials to the ICC. This has been made a precondition for receiving financial assistance from the U.S. Even otherwise, the ICC is funded by its member states. UK for that matter in 2017 contributed £8.9 million in 2017 which was approximately 7% of the total ICC budget that year.
The role of the UNSC has only furthered this asymmetry as it functions according to the political interests of the permanent 5 nations. For instance, during the UNSC vote for referring the situation in Darfur to the ICC, U.S. abstaining was just a method of distracting the international community away from the Iraq situation. In 2014, China and Russia vetoed a resolution for referring the situation in Syria to the ICC without any credible reason.
[IV.] Other Tribunals
As Justice Louise Arbour mentioned, “the ad hoc nature of the existing Tribunals is indeed a severe fault line in the aspirations of a universally applicable system of criminal accountability.” The irrationally selective prosecutions of these tribunals provide credence to the victimization of the perpetrators. The questions such as why just Yugloslavia or why just Rwanda, or why only 1994 or the 1990s, remain unanswered. The blot here is not on the quantum of punishment or culpability adjudged for these perpetrators, but rather on the singling out of just these individuals.
The ICTY (Annexure-A) in this matter, has only been focusing on prosecuting the Serbs while refraining on prosecution against the Bosniaks, Croats or Albanians. For instance, in the Seseslj case, the defendant claimed that he was only selected as he was a Serb. On the other hand, in the Celebici case, the Muslim defendant claimed that he was only selected to give an appearance of even-handedness in the selection process of the prosecutor. Furthermore, Prosecutor Del Ponte when aborting her investigation on the involvement of NATO in the Milošević indictment professed that the tribunal was only allowed to function with the edge of the political universe. In pursuance, because of withholding of information by the NATO member states, she decided only to focus on crimes committed by the local forces. Apart from tainting the accountability system, this selective justice contributed to the ethnic division in the region, thereby receding reconciliation efforts.
The Special Tribunal for Lebanon (Annexure-B) exclusively focused on prosecuting members of the Hezbollah group, while neglecting any investigation against other groups for the assassination of Rafik Hariri. The ICTR (Annexure-C) prosecuted indicted 93 defendants for the Rwandan genocide, out of which over two-thirds were Hutus. The International Crimes Tribunal-Bangladesh (Annexure-D) has also been primarily focusing on indicting members of the opposition Bangladesh Jamaat-e-Islami party, while neglecting alleged crimes by the Awami Party during the Liberation War. This can also be viewed as a political tool to eliminate political opponents.
The Extraordinary Chambers in the Courts of Cambodia (Annexure-E), a hybrid tribunal, practiced a different kind of selective justice by only prosecuting high-ranking officials while neglecting several lower-ranking officials who actually carried out the Rouge regime’s policies of forced labor, torture and executions. One such example was the failure to prosecute Im Chaem who was a district official who oversaw the executions of thousands of people, as the court cited lack of evidence and the need to focus on other high-ranking officials. While this could be justified using the “most responsible” standard in ICL (adopted in ECCC through the Dueck case), no other court in Cambodia has jurisdiction over the human rights violations by this regime.
These concerns have been substantiated through comprehensive analysis and supporting evidence, which is presented in detail within the accompanying annexures. The annexures serve to fortify the research paper’s core argument and contributes to a more holistic comprehension of the complex dynamics at play within the realm of these five tribunals.
[V.] Way forward
Rob Cryer in the early 2000s mentioned that “criminal law’s claim to legitimacy is undermined when the law is neither general, nor applied evenhandedly.” Apart from the aforementioned implications on the states themselves, this is also going to impose a question on the credibility of the judicial institutions as it suggests that these institutions are influenced by political and other extraneous factors which impedes its ability to render fair and equal justice.
However, selective justice in the ICL arena will always exist as ICL operates in a complex and diverse global context with the continued role of political influence. The institutions should therefore aim at aspects they could potentially address such as improving resources and its allocation, protecting its prosecutors from political interference, increasing accountability of national criminal justice systems, and increasing transparency in their operations. And maybe, similar to how questions on credibility of the European Court of Human Rights were settled years after its creation, the same would extend to the ICL institutions.
International Criminal Tribunal for the Former Yugoslavia
(in its last five years)
Observation- Out of the 11 cases of the ICTY in its last five years, 10 out of the 11 indictments have been against Serbs with only one acquittal.
Special Tribunal for Lebanon
(due to limited number of cases, the authors have analyzed all of the matters)
Observation- out of the 7 cases of the STL so far, there have only been 2 trials and both were against Hezbollah Militants which resulted in convictions.
International Criminal Tribunal for Rwanda
(in its last five years)
Observation- Out of these 16 cases of the ICTR in its last five years, all of them have been Hutus.
International Crimes Tribunal- Bangladesh
(in its last five years)
Observation- out of the 18 cases of ICT-BD-1 in its last five years, only 4 cases have been against people who were affiliated to a party other than Jamaat-e-Islami. Even then, Nezam-e-Islami was formed as an offshoot of Jamaat-e-Islami. There have been no cases against Awami League supporters.
Extraordinary Chambers in the Courts of Cambodia
(due to limited number of cases, the authors have analyzed all of the matters)
Observation- out of the four cases of the ECCC, the only convictions have been against the senior-most leaders and the cases against the lower ranking officials have all been dismissed.