World order has very few ways of policing war crimes. If world order and global security are to be enhanced, for the greater good of all of the globe’s citizens, then some method of pursuing and punishing perpetrators of attacks the most egregious kinds on innocent civilians is essential for the health of the planet and its peoples.
The ultimate purpose is preventive – to inhibit future large-scale destabilizing attacks on large numbers of civilians, many of which approximate ethnic cleansing or genocide. That was the goal of the powers of the world when they signed the Rome Statute in 1998 and established the International Criminal Court (ICC), placing its headquarters in The Hague. Its first chief prosecutor was Luis Moreno Ocampo, from Argentina, succeeded by Bensouda, from the Gambia, Africa’s smallest country.
The ICC, acting in concert with the UN General Assembly’s embrace of the Responsibility to Protect norm, adopted in 2005, has in recent years pursued individuals allegedly responsible for perpetrating war crimes, for aiding and abetting ethnic violence, murder, rape, and other kinds of mayhem that are directed at civilians.
It indicted President Omar al-Bashir of the Sudan for sponsoring ethnic cleansing episodes in Darfur, the westernmost area of the vast country, and for other alleged massacres of his own citizens. It also investigated the roles of President Uhuru Kenyatta and Deputy-President William Ruto in Kenya for encouraging attacks on opposing ethnic groups in the aftermath of the Kenyan election of 2007. But, without enforcing powers, the ICC has been unable to arrest Bashir or to bring him to The Hague to face justice. Likewise, the prosecutions of Kenyatta and Ruto were abandoned when witnesses from Kenya were persuaded (presumably by associates of the president and deputy-president) to change their testimonies or to refuse to give evidence.
Situations in nine African countries and in Georgia are currently being investigated. Potential cases in Burundi, Gabon, Guinea, and Nigeria as well as Afghanistan, Colombia, Palestine, and Ukraine are now being examined. Six persons are in custody, thirteen individuals (like Bashir and Kenyatta) are “at large,” and of the ICC’s twenty-three trial cases, one person was acquitted, and four were convicted. Being tried now is Laurent Gbagbo, the former president of Cote d’Ivoire, who is in the dock together with Charles Blé Goudé, a youth leader and cabinet minister in Gbagbo’s administration. Both are charged withfour counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution of civilians.
The ICC’s only prosecutorial successes have come in cases against individual Congolese warlords who agreed to come to The Hague to face trial and were sentenced after a lengthy deliberation to many years of imprisonment. Additionally, a Malian pleaded guilty to war crimes connected with violence in Timbuktu.
The ICC has signally failed to persuade African nations to detain and extradite Bashir when he has traveled to their countries. Most dramatically in South Africa in 2015, when a local judge decreed that he must be held, the South African administration secretly facilitated his departure from a government air base.
Most recently, the ICC opened dossiers against the suspected ethnic cleansing propensities of the troubled regime led by President Pierre Nkurunziza in Burundi. A civil war has engulfed that country for years, and Nkurunziza bullied and brutalized his way to an illegal third presidential term in 2015 before worsening tensions.
That investigation led Burundi to exercise its option under the Rome Statute to withdraw after one-year’s notice from the ambit of the ICC. South Africa harassed externally and internally because it refused to hold Bashir, followed Burundi and announced its withdrawal. Then the Gambia decided also to renounce the ICC. When these withdrawals occur in 2017, the ICC will have lost three of its 124 adherent nations. China is not a signatory, and the United States never agreed to put itself under the ICC for fear of the prosecution of military personnel overseas.
The Gambian government, largely speaking for Burundi and South Africa, said that its reason for leaving the ICC was because the ICC “unfairly targeted Africans.” Additionally, the Gambian and Burundi claimed that it persecuted Africans, “especially their leaders,” while ignoring crimes committed by the West. The Gambian ignored the fact that the ICC’s chief prosecutor was, of all things, a Gambian.
China, in solidarity with Burundi, South Africa, and Gambia, supports their withdrawal. According to Chinese foreign ministry spokesman Lu Kang, China respects “the decision of the respective countries to withdraw from the International Criminal Court… China supports the international community's efforts to combat international crime and promote peace and judicial justice. At the same time, we insist that the ICC must respect the sovereignty of separate states and other principles of the international law."
Endorsing the decisions is unfortunate, however, because any weakening of the ICC, and anything that encourages additional nations to withdraw from its jurisdiction, greatly eviscerates world order and global security.
Loosening or removing one of the few bulwarks against dictators attacking their own people because of ethnic differences, or because of presumed disagreement with an authoritarian regime, means that the possibility of renewed ethnic cleansing and genocide campaigns becomes more likely. The impunity of the worst of the worst of the world’s leaders becomes easier to realize.
As one of the most powerful nations in the world, China’s self-interest revolves around creating a peaceful world, not a world punctuated by various small but destructive wars. China also purchases valuable oil, gas, and minerals from many of the more fragile African countries where much of the globe’s ethnic cleansing has taken place, and where more is possible as the ICC is neutered.
China has joined UN peacekeeping operations in South Sudan and other war-torn African nations. By backing those who would withdraw from the ICC, China encourages more costly internal conflicts in the future. Doing so cannot be in its profound national interest.
The powers of the world should shun those entities that renounce the ICC so as to discourage others from following in their path. China should cut off its ties to Burundi and Gambia, minor players on the African and international chessboards of diplomacy, and chastise South Africa – not sanction their inexcusable errors.