OPINION: Imagined international justice, al-Bashir and the ICC

The recent blow to international justice heralded by Sudanese President Omar al-Bashir's presence and non-arrest in South Africa is revealing of a far broader problem in the international justice architecture. It signals a problematic power structure in the way in which the capriciously shifting narratives around accountability are the mainstay of the powerful, in ways which threaten the precepts of justice and the important role of the ICC.

On 12 December 2014, International Criminal Court (ICC) chief prosecutor Fatou Bensouda announced to the United Nations Security Council during a regular briefing on the situation in Darfur that she would " hibernate" the investigative activities in Darfur, on account of Security Council inaction. This was a substantial blow to the fundamentals of justice. Perhaps the most damning response to the state of affairs came from Ambassador David Pressman, the United States alternative representative to the United Nations for special political affairs, who argued emotively that "[w]e cannot abandon the people of Darfur to a government complicit in and indifferent to their suffering."

At the time, news cycles globally were dominated by two devastating, racist aberrations of justice by the US. The statement was made during the week in which Americans took to the streets to protest the complicity in and indifference to black suffering epitomised by the fact that Daniel Pantaleo, the NYPD officer who held Eric Garner down while he repeatedly stated "I can't breathe" until he died, was not indicted by a grand jury in the United States, nor Darren Wilson for the shooting of Michael Brown in Ferguson. This statement was made by the representative of a country in which black men constitute 6.5% of the US population but 28% of the 508 people killed by police in the US in 2015 so far.

Ambassador Pressman's statement was also made three days after the CIA torture report was released which detailed horrific use of torture at Guantanamo Bay, which included explicit acts of racist torture, rape, killing of detainees. It further found that 26 of 119 detainees were improperly detained, including an 'intellectually-challenged' man who was held as 'leverage' to extract information from a family member.

Laid bare in juxtaposition, the hypocrisy is startling; two non states parties to the Rome Statute inflicting terrible crimes, one deriding the other. Some might argue that the difference is that al-Bashir is currently the subject of an investigation by the ICC, while the US is not.

However, the legitimacy of the ICC is not the driving interest for the US and other Western powers in adopting this double standard. The fragility of principle in the face of politics is starkly demonstrated when one examines the backlash against the ICC's recently launched preliminary examination into the situation in Palestine in January 2015.

While European states have been largely supportive, the US immediately dismissed the process, noting, "the place to resolve the differences between the parties is through direct negotiations, not unilateral actions by either side". Canada, an ICC member state and historically ardent supporter of the court, derided Palestine for crossing a 'red line', while spokesperson for former Foreign Affairs Minister John Baird indicated a direct desire to become inveigled in the processes of justice, noting, "We intend to communicate further views to the prosecutor in due course." In response, Israel lashed out at the Court, froze Palestinian tax revenues, expressed its virulent commitment to non-cooperation in the case and threatened to convince its friends to cut funding to the Court. To date, gratifyingly, no substantial donors have indicated any compliance with the request.

I am perplexed by what parties might hope to avoid obstructing by skirting justice, in light of Israel's persistent refusal to incorporate the right of return of Palestinians in exile, and to confront the Nakba, which constituted an ethnic cleansing of Palestine in 1947 and 1948. No less, it should be noted that the argument that accountability processes can hinder negotiations is one that has been long expressed by the African Union, since the ICC indictment of Omar Al-Bashir, to divergent responses from the international community than are currently seen regarding Palestine.

In an article in the New York Times former South Africa president Thabo Mbeki and Professor Mahmood Mamdani argue that courts can't end civil wars, proffering the importance of negotiations and political processes for political violence. The fact that the argument in favour of political processes was criticised by Western powers as part of a self-serving agenda by sitting African heads of state, and has subsequently not been substantially criticised following the Palestinian examination, reveals a vast asymmetry of power in the international system which undermines the prospects of accountability for war crimes.

Where does this hypocrisy leave us? Some have argued that the hypocrisy obviates the need for accountability and justice. I wholeheartedly reject this view. While there are important considerations to be made around sequencing of justice mechanisms in the context of peace processes, if South Africa can teach us anything, it is that a lack of accountability for gross crimes is a grave injustice to their victims and profoundly damaging to societies that emerge in their aftermath. In South Africa, according to recent research by the Institute for Justice and Reconciliation, 52% of white South Africans do not believe apartheid was a crime against humanity. This is a horrifying figure in a country with so deplorable a history.

Rather than eschewing justice then, the hypocrisy calls for an expanded scope of justice, both in terms of those subject to it, and the issues it addresses. If we hope for a credible international justice architecture, the persistence of a global system which elevates the global north at the expense of the global south needs a radical realignment.

The ICC is an important institution that seeks justice for grave crimes. However, unlike domestic courts, it lacks the infrastructure to implement arrest warrants, relies on donor funding, and consequently requires the co-operation of member states, and, to some extent, non-member states, such as the United States, to be able to execute its mandate. Without access to situations under investigation, and information required to assess accountability, it cannot carry out its work. This co-operation-dependent precarity renders it vulnerable to the caprices of global power, a feature that threatens to undermine the justice it seeks to foment.

In many ways, thus, while there are assuredly concerns around the ICC, the singular focus on it deflects from the more substantial issue of global power arrangements. The ICC is a court operating in a political world. An international justice architecture that purports to call itself truly international must eschew the prevalence of impunity of the powerful. The prospect of seeing George W Bush or Benjamin Netanyahu in the dock must be as feasible as seeing Omar al-Bashir. We should aspire to both, and not neither.

While this requires a firm approach by the ICC, in light of the importance of co-operation, more significantly, it requires a rupture in global power arrangements and a commitment from all states to stop undermining the processes of justice.

Moreover, we need to reconsider the scope of crimes that fall under the purview of international justice. While the focus on war crimes, crimes against humanity, and genocide is formidable, it is important that in individualising accountability, we do not negate structural violence and broad societal complicity, from our panacea of justice, whether international or domestic. As Benita Parry notes, "to differentiate between entire populations and those who devised and inflicted atrocities is a necessary but still insufficient condition, as it too readily rehabilitates the many who were complicit in the outrages committed in their name." The devastating structural effects that apartheid had on black South Africans, as well as the wilful ignorance of white South Africans to their benefit from this system, is woefully indicative of this reality. The precepts of individualised accountability ought to be construed in tandem with measures that address victims and beneficiaries of structural oppression.

Additionally, in individualising accountability in specific conflict zones, an imagined international justice might incorporate a far broader scope for this consideration. In addition to prosecuting those directly responsible for war crimes, it might examine the role of corporate complicity in fostering and profiting from the systemic conditions for conflict. It might more specifically consider the role of global arms trade in creating permissive conditions for conflict. Arms trade by China in the course of the UN weapons embargo to Sudan, as well as the dumping of a Cold War weapons surplus by Russia and the US, were instrumental in providing the means to fight in Darfur.

An imagined international justice architecture might interrogate the role of colonial and neocolonial actors in proliferating conflict, both financially, and by entrenching and instrumentalising divisions in the course of divide-and-rule policies implemented to maintain colonial rule in Sudan. In addition to prosecuting al-Bashir for his egregious role in the conflict, an imagined justice architecture might further examine the role of the Cold War in militarising Darfur and the spillover effects of the conflict in Chad.

None of this seeks to denude Omar al-Bashir of accountability. It is rather to recalibrate the scope of accountability. It is to historicise and broaden accountability, not so that we can obfuscate, but so that we may better understand and deliver justice. It is to imagine an international justice architecture in which colonialism and neocolonialism are treated not as an unfortunate, embarrassing discrete aberrations completed in the past, but as an ongoing, mutually constitutive process, whose legacy and continuation shape politics. It is to imagine a global architecture in which the powerful can be held accountable and stop attempting to skirt their own responsibility. We need to establish a watertight system of global accountability if the flouting of it is to be avoided. This is essential if the legitimacy of the fundamentally important ICC is to remain intact and all perpetrators of gross crimes are to be brought to justice.

Kelly-Jo Bluen is the project leader for international justice at the Institute for Justice and Reconciliation. She holds a double Master's degree in international affairs from Peking University and the London School of Economics, and an Honours degree in international relations from the University of Cape Town. Follow her on Twitter: @KellyJoBluen