For this reason alone, the ICC should seriously consider honouring the petition recently filed by Public Interest Lawyers (PIL) and the European Centre for Constitutional and Human Rights (ECCHR) and charge Britain with crimes against humanity perpetrated in Iraq from 2003 to 2008.
The US and Britain invaded Iraq in blatant violation of international law in 2003 under the pretext of finding weapons of mass destruction (WMD)
Britain claims that the alleged crimes are under investigation and the ICC is not needed, but the idea of a government investigating its military wing for serious war crimes is a fallacy. Especially if it is a government that for years refused to accept liability for atrocities committed in Kenya and elsewhere against freedom fighters and civilians during colonialism.
The ICC is already seen as a racialist instrument of justice selectively picking and punishing Africans. Funded primarily by Europe, the ICC has to measure its financial longevity against its longevity as a court African state signatories and victims of crimes against humanity in general can trust. The New African reported in its March of 2012 issue that the ICC gets 60% of its
There is irony in that Charles Taylor, found guilty by the International Criminal Court (ICC) is serving his 50-year sentence in the same Britain that ran colonial gulags and committed war crimes in an illegal war in Iraq. If international justice does indeed win over financial considerations, British General Sir Peter Wall, ex-defence secretary Geoff Hoon and former defence minister Adam Ingram should join Charles Taylor in a British cell, or even better in a Liberian jail.
Throw in Kenya and the ICC becomes caught between a rock and hard place. President Uhuru Kenyatta and Deputy President William Ruto team whipped up nationalism by accusing the ICC accusers of being an instrument of imperialism and they rode that nationalism to the State House. Amongst the Kenyans and Africans who support the duo, it is the ICC on trial for persecuting Africans.
The case has been floundering and in December 2013 the prosecutor Fatou Bensouda asked the ICC to postpone saying that “Currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial.”
What is happening to the witnesses? Intimidation, bribery, pressure to withdraw or just plain fear of going up against the most powerful office in Kenya? We don’t know for sure. But this much I know. If I was a peasant farmer in Kenya getting ready to testify against the men holding the most powerful offices in my country, in a climate where to do so will be seen as traitorous, and for a court whose credentials have been undermined internationally, I would certainly think twice. The ICC should have done a better job of protecting its witnesses especially after the accused took over the reigns of the state and security offices.
But ultimately what is on trial is not the ICC, Kenya or perhaps British officials. It is the very concept of international justice. This concept has been undermined by the United States refusal to ratify and be bound to international rule of law. And for good reason.
The US war against Iraq, a war forced onto the world through lies and arm twisting, with over 100,000 civilian deaths means that Bush and Cheney with Tony Blair alongside them should have been writing their memoirs while on trial for crimes against humanity. Indeed George Bush in 2011, he cancelled a trip to Switzerland where there was a threat of a warrant for his arrest.
Further undermining international justice is President Obama’s continuous flaunting of international law through drone missile strikes that often lead to the civilian deaths. His definition of who is terrorist is so broad that anyone, even the farmer who sells food to a terrorist, can be killed. Any attempt by Obama to preach to Uhuru and Kenyans about the importance of the ICC and international justice cannot be taken seriously.
But of all the insidious things though, is the idea that anyone killed by a drone attack is presumed a terrorist until proven otherwise. Anyone can see the dubiousness of this position that lays the burden on the proof on those terrorized and killed by the drones. The idea that there can be international justice turns into a caricature when the world’s leading democracy is also the leader in wanton killings, extra-judicial killings and assassinations abroad.
At the heart of the ICC’s problems is the real question of whether justice perceived as being selectively applied along racialist lines can be accepted as legitimate. If the ICC was to find Kenyatta and Ruto guilty, but with the Kenyan people feeling that justice was not served, that the two were railroaded to give cover to Western perpetrators of war crimes, can we say justice has been served? And if the victim citizens will not support the verdict, can that justice be enforced?
I do not believe that governments can investigate their most powerful citizens. I do not see ex-defence secretary Geoff Hoon getting 50 years in a British court. Indeed Tony Blair and his functionaries should be brought in front of the ICC and join Kenyatta and Ruto on the dock.
I believe that there is a place for the ICC if it is truly in the service of international justice. But not the ICC as it stands today, applying justice selectively while financially beholden to powerful nations that are themselves involved in crimes against humanity.
The way I see it – the burden of proof rests on the ICC to show the world that it can indeed serve the cause of international justice. And bringing the British architects of the war in Iraq to justice is an important first step.
Mukoma Wa Ngugi, an Assistant Professor of English at Cornell University, holds a PHD in English from the University of Wisconsin, Madison. He is the author of Black Star Nairobi (Melville, 2013), Nairobi Heat (Melville, 2011) and Hurling Words at Consciousness (AWP, 2006). New African in 2013 named him one of the 100 most influential Africans.