By Joanna Kyriakakis

This article is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May. 

In 2014, Andrew Wilkie MP proposed that the International Criminal Court (ICC) investigate our Prime Minister, Tony Abbott, and his cabinet for crimes against asylum seekers. Similar calls were made when Australia’s participation in deadly drone strikes against Pakistani civilians was revealed. Routinely echoed in Australian public discourse, these sentiments tend to demonstrate a few things. First, that many people are confused about the jurisdictional limits of the ICC. Second, that they believe that it is legitimate for an international criminal court to hold our political leaders to account when they blatantly and seriously breach human rights law.

While the prospect of our leaders appearing before the ICC is a mere hypothetical, in a number of African states it is very real.  There was for many years an outstanding warrant against Sudan’s President, Omar al-Bashir, for allegations of genocide committed in Darfur. Frustrated by the Security Council’s failure to take real efforts to apprehend him, in late 2014 the ICC Chief Prosecutor ceased investigations into the Darfur case. Until recently, Kenyan Prime Minister, Uhuru Kenyatta, was undergoing trial at the ICC for his role in post 2007 election violence that targeted supporters of his political opponents. The charges were withdrawn in 2014 due to evidential challenges, including the death of key witnesses and the Kenyan government’s lack of cooperation. The case against Kenya’s Deputy President, William Ruto, continues. These cases demonstrate the Prosecutor’s commitment to a fundamental principle of international justice: there is no immunity for the political elite. They simultaneously remind us how challenging it is to rely on a State’s cooperation when trying to prosecute its leaders.

To date, the ICC has only launched prosecutions for crimes committed in Africa. This has led to claims from Kenya, among others, that the Court is an instrument of neo-colonial power wielded by the West to manipulate domestic African politics. ICC Prosecutors have consistently rebuked such claims, arguing that the worst atrocities since the ICC came into force have been in Africa. However, the Prosecutor has recently shown serious interest in events in other parts of the world. For instance, she is re-examining UK officials for systematic detainee abuse in Iraq from 2003 until 2008. When Palestine joined the ICC in January 2015, it referred to the Court all events occurring in Palestinian territory since 13 June 2014 so as to cover the 2014 Israel-Gaza hostilities. The Prosecutor is now examining whether there is a reasonable basis to open an investigation. If either investigation is pursued, they will generate political opposition, though of a different form to that currently expressed by some African states.

Nonetheless, the focus to date on Africa has put the ICC on a collision course with the African Union (AU). In 2013, Kenya fell short of convincing the AU to decide that state members withdraw from the Court. It did, however, convince the AU to request that the Security Council stop the ICC from prosecuting incumbent heads of state. In a remarkable step, in June 2014 the AU adopted a Protocol to establish the African Court of Justice and Human and People’s Rights, a regional court that would cover the same field as the ICC. The Court will come into existence once 15 member states ratify the Protocol.

The prospect of cases coming before a regional court instead of the ICC should be welcomed, given that it will have much closer links to victim communities. Also welcome are some progressive features of the proposed court. For example, in addition to dealing with the same crimes as the ICC (genocide, crimes against humanity and war crimes), the Court will be able to hear cases against private corporations as well as cases involving unconstitutional change of government, terrorism, corruption, trafficking, illicit exploitation of resources, and piracy. But the Protocol also contains regressive features. Unsurprisingly, it provides immunity for sitting heads of state. It is also unclear what the relationship between the AU Court and the ICC will look like.

In the meantime, what of international courts for addressing human rights breaches in our own backyard? Unlike every other part of the world, the Asia-Pacific has no regional human rights court. Australia should pursue the establishment of such a court; as they play a crucial role in enforcing human rights compliance by governments. There is also no talk of a criminal court for our region, though in that respect we are not exceptional. Should it become operational, the AU court will be the first of its kind. That leaves Australians to make rhetorical calls to the ICC, which require the ICC Prosecutor to decide that a situation here is of a similar gravity to the atrocities she is confronted by elsewhere. We should be grateful, at least, that we can’t compete for that attention.

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