A Perspective from Developing Nations

Is the International Criminal Court an instrument of the developed world to judge the developing nations?

The criticism made by the President of Phillipines, Rodrigo Duterte, that the International Criminal Court (ICC) is a tool of the west and that he is not answerable to it, is not something said in a vacuum. This is one of the common criticisms against the ICC, and one that has been increasingly made by many African nations, which have also argued that the ICC lacks democratic legitimacy and does not represent the local sensibilities and the actual victims of the crimes, but merely represents a western worldview (Glasius,, 2013). Many developing countries have made out this argument that the ICC does not represent the sensibilities of the developing countries (Ofodum, 2017). There is also an argument that the ICC has traditionally been dominated by Western powers (Ofodum, 2017).

On the other hand, those who argue that this is not an actual position of the ICC argue that the fact that the ICC is not a tool of the west can be gauged from the fact that there are in existence specific provisions in the Rome statute that created the ICC, as per which the ICC is an impartial body with non-political responsibilities (Bellelli, 2016). However, despite these provisions, it can be argued that the ICC is definitely more inclined to hear cases against the developing nations. Clarke, Knottnerus and de Volder (2016) argue that the ICC is not immune from political actions or political influence from the west and that even impartial decisions are made, there is justification for saying that such decisions are made under the influence of the western powers (Clarke, Knottnerus, & Volder, 2016).

Evidence of a pro-western tilt in the ICC can be seen in the way the referral system of the ICC is structured where the UN Security Council made referrals to the ICC. Many times such referrals are made to serve the self-interests of the five permanent members of the Security Council (Von-Einsiedel, Malone, & Ugarte, 2015). On the other hand, when similar referrals are to be made that go against the interest of the permanent members, the use of the veto powers by the permanent members does not allow such resolutions to pass (Von-Einsiedel, Malone, & Ugarte, 2015). The African bias is even deeper, with most of the referrals being made against African nations (Von-Einsiedel, Malone, & Ugarte, 2015).

The developing world, particularly African nations, have seen a building of the momentum in favour of exiting the ICC (Welz, 2013, p. 425). The cases against the African leaders in particular have led to a growing consensus among some nations like Burundi, Kenya, and Congo that ICC is western centric (Doyle, Gorman, & Mihalkanin, 2016). Therefore, there is a vocal support among a few to withdraw from the Rome Statute (Wolf, 2013). It is a fact that the ICC has only issued arrest warrants for sitting heads of developing countries like Sudan (Cole, 2013, p. 671). The referral system and the fact that the ICC has taken action only against developing countries lends support to the argument that ICC is western centric.

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Bibliography

Bellelli, R. (2016). Principles that Guide the Work of the Office of the Prosecutor. In International Criminal Justice (pp. 161-172). Routledge.

Clarke, K. M., Knottnerus, A. S., & Volder, E. D. (2016). Africa and the ICC . Cambridge: Cambridge University Press.

Cole, R. J. (2013). Africa's relationship with the international criminal court: More political than legal. Melb. J. Int'l L., 14, 670-698.

Doyle, T., Gorman, R., & Mihalkanin, E. (2016). Historical Dictionary of Human Rights and Humanitarian Organizations . London: Rowman & Littlefield.

Glasius, M. (2013). Do International Criminal Courts Require Democratic Legitimacy? EJIL, 23, 43–66.

Ofodum, C. M. (2017). International Criminal Court (ICC) and Post Conflict Peace Building Process in Liberia 2003-2013. PhD Diss.

Von-Einsiedel, S., Malone, D., & Ugarte, B. (2015). The UN Security Council in an Age of Great Power Rivalry. United Nations University Working Paper Series Number.

Welz, M. (2013). The African Union Beyond Africa: Explaining the Limited Impact of Africa's Continental Organization on Global Governance. Global Governance: A Review of Multilateralism and International Organizations, 19(3), 425-441.

Wolf, T. (2013). International justice vs public opinion? The ICC and ethnic polarisation in the 2013 Kenyan election. Journal of African Elections, 12(1), 143-177.