The International Criminal Court — meant to be the world’s answer to present and future war crimes — is used to being attacked by conservative opinion in the US. President George W. Bush canceled Bill Clinton’s decision to sign on for membership. Yet now, ironically, we have the Bush administration giving the ICC important support from behind the scenes whilst some liberal voices in Europe are raising doubts about its counterproductiveness, as with an essay by Richard Dowden, director of Britain’s Royal African Society, in this month’s Prospect magazine.
The ICC, voted into creation by an overwhelming majority of the world’s nations in 1998, only got moving two and a half years ago when it issued its first warrants against five leaders of the Lord’s Resistance Army of Uganda, and more recently making a single arrest of a suspected warlord in the Democratic Republic of Congo and identifying publicly three suspects in the Sudan. Dowden accuses the ICC of showing signs of “naivety and a sense of bad timing” and suggests that, “Western-inspired universal ideas of justice might come into conflict with local forms of law, jeopardizing the process of reconciliation”. He goes on to argue that almost all of Africa’s nastiest wars have ended in local deals. “Victors have showed a reluctance to punish. Losers have not been excluded but given places in government”. The implication is that modern-day human rights laws are a Western construct — which indeed they are, tracing their roots back to 12th century European Christian theology on natural rights and later the Enlightenment. But law is no Western invention. Every society has developed law, just as they have developed language.
There is no imperialism in the present-day spread of human rights law. At the World Conference on Human Rights in Vienna in 1993 the African nations lobbied hard to persuade the hold outs — mainly Muslim and Confucian nations — to sign up for an improved and strengthened version of the original Universal Declaration of Human Rights. They succeeded, which was one of the reasons that when it came to negotiating the statutes of the ICC toward the end of that decade the African nations had no compunction about supporting it and the Muslim and Confucian nations, China excepted, willingly joined them.
All nations and all peoples have a deep urge for law — this is one of the defining characteristics of homo sapiens — and in this day and age leaders, elites and, often enough, the populace yearn for their laws to be seen to be sensitive and up-to-date. Thus all over the world legal codes are being continuously updated to take on the responsibility for complex financial, economic and aviation issues, for fighting corruption, for controlling immigration, or international trafficking in drugs, women children. Very few question the need for this, even if legislation is often borrowed from more developed jurisdictions. The reason for adopting contemporary ideas on human rights and turning them into legislative practices is not because developing nations are being bulldozed by know-it-all outsiders; it is because most countries want to develop, want to modernize, and want best practice from wherever it emanates. They realize that life is becoming too complicated to have its disputes settled by a palaver under the baobab tree, even though sometimes old-fashioned community values can be brought into play to reinforce modern day decision-making.
One important survey carried out in Uganda among those whose lives have been terrorized by the Lord’s Resistance Army makes it clear that more than half the people do not want to settle for peace if it means their persecutors are merely absolved by an age-old practice of ritual cleansing. This makes sense. Unless their killers are locked away they may too easily resume their pathological urge to kill and destroy. A deal that absolves such merciless killers sends a message to the young that the laws of the land mean very little when evil men decide they want power at any cost. Good law is about setting a standard.
One of the beauties of the articles of the ICC is that there is no statute of limitations. This means that if present-day authorities don’t have the guts to arrest the prime suspects a future administration might.
