Comrade Didas Gasana, you raised very critical issues. I would like to address some of the issues you introduced for discussion:
- Using the ICC to help “friendly” dictators consolidate power for the western corporations and politicians who plunder the continent explains why ” friendly” dictators send to the ICC the cases you mentioned. It’s like saying that because slave traders used African chiefs to raid villages and capture people to be sold,then the Africans were were the slave traders! Oh, on police targeting Africans in many cities, some say it has nothing to do with racism because some police officers are blacks!
Let’s take M7’s case. Do we know why the ICC went for Konny not M7? Yes. Museveni is a ” useful” dictator. Do we know why the ICC went for Bosco Ntaganda, not Kagame the guy Ntaganda was serving? Yes. Ntaganda had grown wings; he wanted to join ” unfriendly” forces. Do we know why the ICC went for Bemba for crimes in Central Africa, not even those he committed with M7 and other western partners? Yes. Bemba went to rescue Patasse who was anti-Western interests….
- I wouldn’t analyze UN Specialized Criminal Tribunals under this because it’s a different legal and probably political paradigm. However, the fact that UN Specialized Tribunals, like their cousin the ICC are but Victory- vanquished justice.
The argument isn’t whether or not some Africans commit crimes or whether or not the victims of the crimes committed in Africa can get justice in their countries.
I think that at issue is whether or not the ICC has gone for criminals everywhere! Are you saying that the ICC goes for Africans because it’s easier to arrest Africans since the ICC has no police?
Do we know whether the ICC has said anything about the mass Drone murders, sometimes from ICC Treaty parties? How about Libya, Afghanistan, Syria? Oh, there are threats of ” investigations” into Palestinian crimes but we are told Palestine does not own the territory(ies) in which those crimes are committed! Lol
- Functional immunity and /or temporary immunity in general is a major right for the State in criminal law and criminal justice. If a Sovereign can’t offer functional immunity , that country is probably handicapped. Any Sovereign avoids handcuffing the Executive or the concerned organ in its foreign relations.
Functional immunity is distinct and separate from the Pinochet case immunity. Functional immunity is for proper execution of some complex State obligations and duties where the State would otherwise hit a deadlock.
Different countries treat Treaties differently in their laws. For some countries, Treaties aren’t at the same level with the Constitution. Meaning that the ICC Treaty does not necessarily override the country’s constitution. South Africa is one of those countries. The argument that ICC Treaty interferes with the function of the Sovereign in a specific case emanates from here. Does the executive have powers to grant functional immunity under the constitution? Was the functional immunity granted granted to X ( in the SA case to Bashir)? Does the ICC as an institution recognize that the Sovereign has her supreme law? Then … having signed and ratified the ICC Treaty or any Treaty does not nullify the Sovereignty argument. Treaties do not necessarily supersede the country’s constitution. Do Treaties supersede the SA constitution? NO. What does the Constitution say about the powers of the President? Does executing ICC legal obligations override the President’s constitutional powers? Those are the issues at this level
- Prosecuting crimes is reserved for the sovereign except in cases where the Sovereign delegates this function. At which point we are talking about a political compromise. Any UNSC decision and related institution is, by definition, in favor of the real powers behind the UNSC. No dog produces a goat. In my opinion, and I think we share this view, until the individual countries build their own institution and are determined to democratize, no outside country or institution can provide objective justice on behalf of another country. Of course, criminal justice issues exist in every country, including this Greatest country where I live.
I sit on the Criminal Justice Reform Committee here. Our biggest problem is a highly politicized and commercialized criminal justice which ends up serving some sections of people while ruining other sections of our society!
By Prof. Charles Kambanda
