Finding justice in a power-asymmetrical world
cc A just world is a noble goal, but in a ‘power-asymmetrical’ world in which richer nations mete out inappropriate measures for developing countries – from sanctions to arrest warrants – international rather than home-grown attempts to deliver justice can themselves easily become unjust, cautions Vikas Nath. The International Criminal Court’s (ICC) recent issue of an arrest warrant for Sudanese president Omar al-Bashir, for example, is widely seen across the African Union as likely to inflame rather than resolve the Darfur conflict. Nath underlines that each of the existing 13 arrest warrants issued by the ICC have been solely for citizens of four African countries, despite the perpetrating of crimes against humanity in Iraq, Gaza, Colombia and the Caucasus region, and concludes that solutions native to the African continent represent a far more appropriate means of resolving conflict.
We do not live in a just world. Delivering justice to those who are repressed and have no voice is a noble goal. It is only when justice starts to become a political tool that things start to become nebulous. And the act of delivering justice itself becomes unjust when it is not immune to power asymmetries and is only used against weaker parties.
We are increasingly witnessing this trend where justice is becoming subservient to a power-asymmetric world in which rich and powerful developed countries have many more possibilities for wielding the tool of justice than poorer and weaker developing countries. For one, developing countries are not able to put economic sanctions on developed countries when the latter do not meet their binding commitments, on climate change or trade issues, say. Developing countries, however, have on several occasions been victims of economic and political sanctions slapped onto them by developed countries.
Another case in point is the recently issued arrest warrant issued by the International Criminal Court (ICC) for Omar al-Bashir, the sitting president of the largest country in the African continent, Sudan. The International Criminal Court, which is not a part of the United Nations, has issued warrants against 13 people so far, all of whom are either from Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR) or Sudan.
It was in 1998 that 120 countries adopted the Rome Statute with the idea of establishing an international court to judge genocides, crimes against humanity and war crimes happening anywhere in the world. Four years later, the ICC became operational in The Hague. One hundred and eight countries are currently party to the Rome Statute, including roughly half the countries in Africa.
Significantly, within a month of the ICC’s becoming operational, in August 2002 the United States passed the American Service-Members’ Protection Act (ASPA), also known as the ‘Hague Invasion Act’, which protects US government officials from criminal prosecution by any international criminal court to which the US is not party. It authorises the US president to use all possible means to bring about the release of any US or allied personnel being detained by, or at the request of, the International Criminal Court. It then negotiated the ‘Article 98’ bilateral-immunity agreements with almost 100 countries to further protect US citizens from facing trial at the ICC, threatening the suspension of military assistance and US Economic Support Fund (ESF) aid to countries which do not sign these agreements.
This has rendered the US above the law and beyond the reach of international justice, giving them such rights as Europeans were once given under the ‘unequal treaties’ with various developing countries.
A legitimate question to be asked – and that is being asked by some Africans – defies answer: Why is the ICC focusing mostly on African leaders and African warlords? Several groups and countries, including the African Union (AU), the Arab League, the Organization of the Islamic Conference (OIC) and China have expressed strong disappointment over the arrest warrant issued by the ICC.
The African Union’s position is that we support the fight against impunity, we cannot let crime perpetrators go unpunished’, said AU commission chairman Jean Ping. ‘But we say that peace and justice should not collide, that the need for justice should not override the need for peace.’
Africa is being selectively targeted. What we see is that international justice seems to be applying its fight against impunity only to Africa, as if nothing were happening elsewhere, in Iraq, Gaza, Colombia or in the Caucasus region.
‘The situation [in Sudan] is very serious and very dangerous. At the same time we are not convinced that the decision taken, or the steps taken, within the criminal court have been well considered. That is why we need to consult and take a collective stand in cooperation with the African Union and in consultation with the United Nations’, said Amr Moussa, secretary general of the Arab League, at a press conference after the emergency meeting of Arab foreign ministers in Cairo on 4 March.
China too has expressed its regret and worry over the arrest warrant issued by the International Criminal Court. In a statement available on the foreign ministry's website, Qin Gang, the ministry’s spokesman said, ‘China opposes any acts that might interfere with the peaceful overall situation of Darfur and Sudan. All parties should think carefully before taking actions.’
Sudan is an African country and the stability of Sudan is the responsibility of the AU. This is the message being hammered home by Ramadan al-Amamra, the AU commissioner for peace and security.
The African continent is fully capable of achieving its goal of a peaceful, stable, and secure Africa. The 2008 Kenya peace accord is holding strong and was brokered by none other than African leaders Kofi Annan, Graça Machel and Benjamin Mkapa.
Home-grown solutions – and in the case of Africa, attaching that jurisdiction to the African Union – would be a more appropriate way to look for solutions in a power-asymmetric world, and to ensure peace in Sudan.
* Vikas Nath is the head of media and communication at the South Centre in Geneva.
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