THE International Criminal Court has just got its third chief prosecutor, Karim Khan, a British barrister. On Feb 12, the day of Khan's appointment to the ICC, British Foreign Secretary Dominic Raab told the British media that Khan's appointment would be "pivotal in ensuring we hold those responsible for the most heinous crimes to account and gain justice for their victims".
Seriously, Raab? The "we" is interesting, though we didn't expect the British influence on the court to start this early. This then is the crux of the problem of the ICC.
The Global South sees the ICC as an international legal instrument in the hands of the Global North to punish the former.
It is not wrong in so thinking for several reasons. Firstly, in all of the 22 years the ICC has been around, it has indicted more than 40, all of them Africans. Unless the Global North is telling the world that war crimes aren't in its DNA.
History tells us otherwise. A war crime tribunal set up in Malaysia, too, clearly points to war crime DNA in the blood of the British and Americans involved in the Iraq War.
No one can accuse the Kuala Lumpur War Crimes Tribunal of being a kangaroo court as it had judges of international repute. The judgment, extempore though it was, was lodged with the ICC and the United Nations, but neither did anything to push global justice forward.
Perhaps because those found guilty by the tribunal were the then British prime minister Tony Blair and former American president George W. Bush.
Britain and the United States are members of the UN Security Council, which has referral rights under the Rome Treaty, the instrument that created the ICC. If Raab really meant what he said, he will get Britain to refer, at least the alleged British war criminals, to the ICC, as the Rome Treaty provides for.
Secondly, the ICC has a structural problem. Blame it on the Rome Treaty.
The ICC can only act if national courts are unwilling or unable to try a case. It must first get past the member-state hurdle.
Here the ICC is aided by a proviso: if the crime is committed by the citizens of a non-member state in the territory of a member state, the court has jurisdiction to try the case.
The case against Myanmar, a non-party, is a case in point as the war crimes are said to have continued in Bangladesh, where the Rohingya have sought refuge. Thirdly, this is of no help when it comes to the ICC trying citizens of the UNSC's Permanent 5 — the US, Britain, France, Russia and China — or their allies as an UNSC resolution enables it to suspend the case for 12 months.
And a further 12 months, ad infinitum, is one interpretation, under Article 16 of the Rome Treaty. In other words, the ICC is being told to not even try.
Fourthly, should the ICC still start one, it will be up against sanctions as former chief prosecutor Fatou Bensouda discovered when the then US president Donald Trump did just that.
The message is: the UNSC members and its allies can do no wrong. Well done, Bensouda, for telling the world might is never right.
Now, we wait for Khan to "hold those responsible for the most heinous crimes to account and gain justice for their victims". Just let them not be only Africans and Asians.