by Kennedy Graham
It’s time New Zealand spoke out more, and publicly, in support of the International Criminal Court.
Eleven years old now, the ICC has 122 States Parties – an extraordinary development in one decade. And it has laboured long and hard to bring individuals to justice under international criminal law – a huge step forward in taming humankind – protecting ourselves from ourselves.
Yet its teething pains are not inconsiderable. Most defendants have been African. The African Union has developed suspicions of bias, to put it delicately. African countries had largely committed to the Court, at least in its concept – there are 34 states parties from Africa. Four African countries (Uganda, DRC, CAR, Mali) have undertaken self-referrals. And now an African woman jurist is the Court’s chief prosecutor.
Yet the feeling on the continent persists. And the lightning rod is the Sudan. Because the Court issued an arrest warrant, the first in history to a sitting head of state, for Sudan’s president for alleged war crimes /crimes against humanity during the civil war.
Part of the problem is that another route was used – and not exactly a self-referral….. The Security Council can refer a situation to the Court, and it referred Sudan. The Prosecutor then exercised individual judgement – against, among others, the President.
This means a legal obligation upon ICC states parties to arrest him should he step foot on their territory.
A few days ago he stepped foot on Nigerian territory. Nigeria is a state party.
Nigeria argues that al-Bashir came to attend a summit meeting of the African Union and not at Nigeria’s invitation. His entry was ‘in line with instructions from the AU’ which had told its 53 member states not to cooperate with the ‘European-based Court’.
That, of course, is a political argument, and will not override Nigeria’s legal obligation.
But that, also, begs the question of what governs decision-making at the international level in the 21st century – politics or law.
The Sudanese president has graciously lowered the temperature by fleeing Nigeria within 24 hours of arrival and half-way through the summit.
African countries are split. South Africa, Malawi, Uganda, Kenya, Zambia, and Central Africa Republic have specifically made clear Bashir will be arrested on their territory. Others are more conflicted.
If we are to tame ourselves, law must trump politics. The Court, in its infancy, is not perfect. But it is better than nothing, and it will strengthen and trump politics with the passage of time. Politics, at the global level, is a pseudonym for raw power. The Court has to come first.
The EU was quick out of the blocks, calling on Nigeria to respect its obligations under international law to arrest and surrender those under warrant from the ICC. UN Security Council 1593 (2005) is the basis, in addition to the binding obligations under the Rome Statute.
Not a peep from New Zealand. Its foreign minister, ironically, is touring Africa, drumming up support for our Security Council candidacy. What would he say if asked?
We have a mote in our own eye, as well. Back in ‘06, the visionary Labour Government quickly quashed an arrest warrant issued in New Zealand – against Israel’s Moshe Ya’alon for alleged war crimes as chief of defence staff. Michael Cullen turned a blind eye to New Zealand obligations under domestic law (from the Geneva Convention). Ya’alon is currently Minister of Defence, so the issue is not entirely moot.
It’s time New Zealand gained a clearer vision of its idea of law and politics. Time for a statement from Murray McCully – while he is in Africa.
What will he say?