The International Criminal Court, Amnesty and Double-Standards

The International Criminal Court has come in for sustainable criticism for many reasons, not least of which its inability even after 25 years of existence to present and function as a real court. In addition to professional, ethical and structural failings, the ICC has increasingly appeared to have more in common with campaigning, ideologically-orientated non-governmental organizations – not least of which on the issue of amnesties, on the subject of which it echoes the facile “no peace without justice” mantra so dear to an increasingly autistic human right industry.

I was particularly interested in the ICC’s messaging on the issue of amnesty and international law way back when it opened its doors in 2002. I had closely followed the peace process relating to the then 30-year conflict in Northern Ireland, and had observed the peace negotiations both in Mozambique and the 40-year long North-South civil war in Sudan which ended the conflicts in that country. As a southern African I had naturally also carefully watched the delicate negotiations which had brought decades of conflict in Zimbabwe and South Africa to a conclusion. All of these brutal long-running wars were essentially ended by negotiations which included drawing a line in the sand and in effect indemnifying politicians and armed participants, something which clearly jars with the chattering classes in the Global North, safely ensconced in their salons de thé, far removed from the reality of war zones. I was interested in how the ICC would approach the issue of peace making and amnesties.

Professor Louise Mallinder’s Amnesty Law Database has catalogued over 651 amnesties across 130 countries from 1945-2016 covering various political conflicts, of which 380 were enacted or introduced from 1 January 1990. Mallinder’s more narrowly-focused Amnesties, Conflict and Peace Agreement Database details 289 amnesties introduced between 1990 and 2016 within 75 countries plus two amnesties enacted jointly by two countries. There is no question that amnesties have a legal provenance. Amnesties, as defined by the Geneva Convention, are “a legal instrument that is used so that those who have committed criminal conducts are not tried for them, or so that those who have already been convicted are not subject to the respective sanction and are exonerated from any type of criminal responsibility.”

It is noteworthy that while the ICC’s constitutive document, the Rome Statute itself is silent on amnesties, something which indicates that its drafters did not automatically assume a single position, the ICC’s policy towards formal or informal amnesties became clear, snubbing the Statute’s drafters and taking its que instead from non-government organizations, including of course Amnesty International, which despite its name now stringently objects to amnesties. A key Canadian government participant in the Rome Conference, and subsequently an adviser to the ICC Prosecutor, asserted within a year of the ICC becoming operational that amnesties “are the antithesis of the ICC”, and “to accept a blanket amnesty would be for the ICC to succumb to blackmail”. He added for good measure that to defer to amnesties “would in any circumstance be contrary to the letter and spirit of the Statute” (on which, it is of course silent). The amnesty door was seemingly slammed shut – at least for Africa – by the Court’s first Chief Prosecutor, the Latin American Luis Moreno-Ocampo. He opportunistically jump-started the ICC by pressurizing (blackmailing is a better term) Uganda and the Democratic Republic of Congo into very questionable “self-referrals” of their countries to the Court, Uganda in January 2004 and DRC in March 2004. The deal was refer yourselves and the Court will only go after your rebel movements: if you don’t self-refer we will come after both the government and rebels. The “self-referrals” (something invented by Moreno-Ocampo with no basis in the Rome Statute) flew in the face of the “complementarity” regime at the heart of the Statute: The Court was designed to be a court of last resort, only acting if a signatory State Party was unable or unwilling to prosecute genocide, crimes against humanity or war crimes within its jurisdiction. Both Uganda and DRC had functional legal systems and were willing to prosecute.

ICC Investigations in both countries opened in mid-2004. Writing in 2020, Professor Phil Clark, an expert on the politics of the ICC in Uganda and DRC, has stated that the ICC has regularly briefed international mediators about the illegality of using amnesties during peace talks. With reference to Uganda he stated that “[t]he ICC’s and its supporters’ opposition to the [2000] Amnesty Act is highly problematic for two main reasons. First, these actors ignore the substantial support for the Act among everyday Ugandans”, and “widespread approval for processes of amnesty, forgiveness, and reconciliation” in Uganda. Not only did Moreno-Ocampo rule out any possibility of amnesties, the Court’s intervention deliberately destroyed promising peace negotiations in Uganda by indicting rebel leaders on the eve of historic peace talks. In so doing the mantra of “no peace without justice” was invoked. The reality is that amnesties in Uganda or DRC would have impeded the ICC’s opportunistic and very questionable attempts to validate its existence. The war in Uganda metastasized and subsequently spread into neighboring countries.

It was not difficult to compare and contrast this ideological stance taken by the Court with regard to Uganda with events within the United Kingdom in which a de facto amnesty for paramilitary gunmen and early-release scheme for imprisoned terrorists was put into place to end the long-running Northern Irish conflict. Sir John Holmes, a prominent British former diplomat and humanitarian who served as the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator from 2007 to 2010, and author of The Politics of Humanity, has noted: “It is not always true that there can be no peace without justice. The successful peace negotiation . . . the 1998 Good Friday Agreement in Northern Ireland, involved a deal on early release for duly convicted prisoners from all illegal armed groups. This had nothing to do with justice and everything to do with the need for such a deal if the groups concerned and their communities were to accept the agreement and give up violence. It worked . . . Other countries in varying circumstances have decided that the interests of peace are best served by not opening up afresh all the wounds of painful civil wars.” The ICC appeared to be running with one rule for the Global North and especially Europeans and another for Africa.

Professor Clark summed up the Court’s position to amnesties in Africa: “The ICC has generally ridden roughshod over national choices to employ amnesties to facilitate peace negotiations and other responses to violence across Africa . . . The ICC’s and its supporters’ vehement insistence on a narrow brand of international criminal justice has undermined these important attempts to resolve conflict and often made peace less, rather than more, likely.”

It is also difficult not to notice other blatant double-standards in the approach taken by Moreno-Ocampo and the Court towards amnesties beyond Africa. Colombia acceded to the Rome Statute on 5 August 2002, and the violent civil war being fought in the country formally came under preliminary examination, described as a fact-finding review, by the Court from 2004 until 2021. The preliminary examination focused on alleged crimes against humanity and war crimes committed in the context of the armed conflict between and among government forces, paramilitary armed groups and rebel armed groups such as the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP), including alleged crimes against humanity of murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, and rape and other forms of sexual violence; and the war crimes of murder, intentional attacks against civilians, outrages on personal dignity, taking of hostages, rape and other forms of sexual violence, and using children to participate actively in hostilities. More than 40,000 people have died in the Colombian internal armed conflict since 2004. It was also alleged that between 2002 and 2010 the Columbian military executed upwards of 10,000 civilians. Human Rights Watch reported that “[t]hese apparently widespread and systematic extrajudicial killings were committed by troops attached to virtually all brigades in every single army division across Colombia.”

Court officials made several courtesy visits to Columbia, made the most of photo opportunities and filed interim reports. There is a consensus that war crimes and crimes against humanity were committed in Colombia after it joined the Court. To all intents and purposes the Columbian government was unwilling to initiate prosecutions of those responsible for the alleged crimes outlined above but unlike in Uganda and DRC, the ICC never opened an official investigation, no indictments or arrest warrants followed and no hearings scheduled – this despite the fact that the Court found a reasonable basis to believe crimes against humanity and war crimes had been committed by the Colombian army, FARC and paramilitary groups.

In additional to its own inexplicable inaction in the face of the very circumstances upon which it was meant to spring into action, judicial sword and scales in hand, and in stark contrast to its stance in Africa, the Court also turned a blind eye to the use of amnesties in Colombia, the most famous of which came as part of the 2016 Final Peace Agreement between the Colombian government and FARC-EP. Colombia’s 2016 Amnesty Law, passed immediately after the peace deal, created a legal framework which saw the government Issue nine presidential decrees granting massive “administrative amnesties” to ten thousand former FARC members. Thousands of additional individual de jure amnesties were also processed by courts for combatants facing specific political charges between 2016 and 2018.  Hundreds of additional amnesties have since followed.

It would be easy to see ICC Prosecutor Moreno-Ocampo’s inaction over Colombia as some sort of misguided Latino solidarity, but the fact is that his successors as Prosecutor, Fatou Bensouda (2012-2021), rubber-stamped the double-standards, and the recently dismissed Karim Khan (2021-26), who in turn followed her, closed the 17-year long “preliminary” investigation into Colombia’s affairs in 2021, claiming there was no case to answer.

But what are us Africans to make of all this? At face value the Prosecutor and Court are content with Europeans and Latin Americans choosing amnesties to end their long-running wars but are against any amnesties in black Africa. As Professor Elies van Sliedregt has so beautifully put it, “Selectivity is the Achilles’ heel of the system of international criminal justice.” Another law scholar Professor Rob Cryer, who was present at the Rome Conference which established the Court, also warned that “[c]riminal law’s claim to legitimacy is undermined when the law is neither general, nor applied evenhandedly.” The International Criminal Court has been unable to shrug off the debilitating belief that it is biased against Africans for the simple reason that it is. It has only ever convicted black Africans in its existence. The Finnish legal scholar and former diplomat Martti Koskenniemi has observed that “There is a neocolonial aura about [the ICC] which is hard to shake”. The ICC’s claim to legality and legitimacy further breaks down in the face of its double-standards such as amnesties being allowed in South America and Europe but not Africa and invites precisely the reactionary “us versus them” narrative that has been woven into the history of the Court from its earliest days.

It is all too clear that the ICC has been captured by NGO activists and now selectively echoes the sorts of rigidly autistic demands for legal punishment parroted by unaccountable NGOs that have prolonged violent conflicts and blocked practical peace agreements of the sort which brought peace to much of Southern Africa and parts of Western Europe. And most important of all is to realize that the shunning of “amnesty” by the over-educated, white, middle-class western legal and “advocacy” élite – a concept reduced by them perhaps to the subject of an interesting seminar, possible law journal article or abstract musings over coffee – has real-time consequences for those Africans and others caught up in devastating wars.