Zecharias Zelalem
THREAD: By now most of you have heard the news of the ICC's belated issuing of an arrest warrant for Netanyahu. But what are the consequences for countries who refuse to arrest the Israeli Prime Minister? Africans are best placed to provide answers for this hilariously😁
Short answer: nothing.
Zecharias Zelalem
In 2009, the ICC indicted Sudanese President Omar Al Bashir for crimes against humanity in Darfur. He made numerable visits to Ethiopia for African Union summit meetings, although Ethiopia is not a state party to the Rome Statute.
But he visited numerous other countries who are. Including Djibouti, Uganda, Malawi and yes....South Africa. The same South Africa that is pressing genocide charges against Israel at the ICJ.
Zecharias Zelalem
South Africa defended their decision not to arrest Al Bashir in 2015, saying that the ICC's arrest warrant did not override South African law, which secures immunity for sitting heads of state.
Zecharias Zelalem
Angered by the condemnation that came for its decision, South Africa unilaterally decided to withdraw from the ICC. Eventually though, South Africa's robust court system ruled that the withdrawal was unconstitutional, and the withdrawal itself was withdrawn 😁
Zecharias Zelalem
In the case of Uganda and Djibouti, both parties to the Rome Statute, the ICC passed an internal ruling judging that both states failed to uphold international law by refusing to arrest Al Bashir when he visited those countries in 2015 and 2016. This document outlines the "ruling" against Djibouti.
What does the ICC do in the case of violators like Djibouti? Refer the case to the United Nations Security Council.
https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2016_04946.PDF
Zecharias Zelalem
Malawi was given the same treatment in 2011. The ICC was outraged that Al Bashir essentially had the freedom to roam across the African continent, with virtually no repercussions.
During his 2010 trip to Kenya, a Kenyan court ordered Al Bashir to be arrested. But Kenyan authorities dismissed the court order, citing African Union protocol which granted him immunity from prosecution as a sitting head of state.
Zecharias Zelalem
A year later, Malawi refused to hold an African Union summit meeting, when the AU insisted that Al Bashir be allowed to attend. It appears that in the year since Al Bashir's first visit to Malawi, western donor states issued threats of consequences to Malawi, a poor country that relies on western humanitarian aid to feed a section of its population. So Al Bashir never returned to Malawi, and the AU summit was relocated to Ethiopia.
https://www.aljazeera.com/news/2012/6/9/malawi-cancels-au-summit-over-sudans-bashir
Zecharias Zelalem
What does a referral to the United Nations Security Council do for violators? Nothing. The UNSC is supposed to deliberate and issue sanctions for countries that refuse to honour ICC arrest warrants. But this same UNSC has the likes of China with permanent membership and veto powers. China was a longtime ally of Omar Al Bashir, and kept financing him despite condemnation. The UNSC is well and truly handicapped in situations like this.
Zecharias Zelalem
In Africa, there is a great distrust of the ICC. The consensus among African leaders is that the ICC is a tool weaponized disproportionately against African leaders. On multiple occasions, African Union members have contemplated carrying out a joint mass withdrawal from the body.
The other reason for the loathing of the body: African leaders typically have poor human rights track records. Many know that they are all at risk of indictments, and sticking together makes sense.
Zecharias Zelalem
Knowing this, in the scenario that the United States flouts international law and permits Netanyahu to visit Washington DC again...the ICC would refer the case to the UNSC, where the US is a permanent member with veto power. Yeah that's going to deter them :)
The only possible real deterrence for the United States is the international reputation stain that would come with being referred to as a state that provided a safe haven for war criminals with international arrest warrants.
Zecharias Zelalem
So this is the problem. The ICC is best designated for dealing with poorer countries like Malawi, who rely on foreign aid into carrying out arrests. These countries can be coerced or bullied into adhering to international law.
The ICC has no mechanism for dealing with violators among the global powers or their backers. This shows how fundamentally flawed the ICC is from its origin.
Zecharias Zelalem
It could be with the accusations of anti African bias in mind, that the ICC appointed Fatou Bensouda, a Gambian national, as lead prosecutor for the body. She stayed in the position from 2012-2021.
Zecharias Zelalem
But this was merely a symbolic measure.
Among the African masses...there is the perception (accurate to be frank) that the body lacks objectivity and is politically aligned.
African observers of global political affairs are all aware of how the ICC completely sidestepped Iraq and Afghanistan. The swiftness of arrest warrants for Putin, compared to the dillydallying on warrants for Netanyahu and Yoav Gallant...well it's hardly even subtle is it?
Zecharias Zelalem
Don't get me wrong...the Netanyahu & Gallant ICC indictments are an important first measure in acknowledging the calculated mass slaughter of Palestinians, now determined by the UN to be consistent with genocide.
But expectations ought to be realistic. The ICC wields about as much power as a uniformed school crossing guard.
In the end, the threat of "the greatest country in the world," going down in history as a violator of international law might be what justice seekers have to rely on.
-ZZ.
Robert Link
@ZekuZelalem Like the Shah? (ahem)
Zecharias Zelalem
@boud Hi Boud. It's not about Bensouda as a person or as a competent legal professional, but if the establishment is structured in a way that there's hardly maneuvering room (and the ICC is loosely connected to the UN, widely recognized as a broken system with heavy political bias) then placing the most competent professional will do nothing. I can cite as an example, the appointment of Meaza Ashenafi (who had an extremely impressive resume pre 2018) as minister of justice in Ethiopia in 2018.
Boud
"But this was merely a symbolic measure."
That sounds like you're refusing to give agency to an African woman judge. Are you sure that those are quite the right words?
Objectively, it was with Bensouda as prosecutor that the Palestine, Iraq and Afghanistan cases each progressed significantly (each in different ways).
Bringing the annual ICC budget [3] up to 1500 MEUR/year (factor of ten higher) would be cheap compared to the benefits: lawyers aren't cheap.
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