Burma Times: Dr David Hoile– 29 July 2015
The debate that has opened up regarding the International Criminal Court as a consequence of South Africa’s decision not to arrest Sudanese president Omar al-Bashir while he was attending the recent African Union summit in Johannesburg and Palestine’s successful application to join the court is long overdue.
The pursuit of justice, in the wake of wrong-doing and especially in the face of crimes against humanity and war crimes, is one of mankind’s most noble instincts. The International Criminal Court was embraced with understandable enthusiasm by a wide range of people, non-governmental organisations and governments when it came into being on 1 July 2002. Less than eight years later, however, the ICC-friendly Economist found itself obliged to publish an article about the court entitled “International justice: Courting disaster?” The court had already shown the behaviour that would come to irretrievably undermine it. Entering the fourteenth year of its existence, the International Criminal Court still finds itself unable to credibly respond to allegations of selectivity, racism, incompetence and impotence.
With hindsight, it can be seen that the Court clearly contained the seeds of its own destruction from the start. Good law evolves over decades. It is said that a camel is a horse designed by a committee. The ICC is a court designed by non-governmental organisations. The Rome statute was driven and largely drafted by non-governmental organisations within a month on a take it or leave it basis. The chief counsel of the Israeli delegation in Rome at the time noted of the NGOs that were present that “They were in on nearly every meeting. They were in on everything.” The end result was a founding statute that that even avid fans of the ICC acknowledged was seriously flawed. The resultant ICC is a judicial Frankenstein’s monster.
Many of those who initially welcomed the establishment of the court were African. They joined an institution they were assured would be independent and which would proceed without fear or favour. The body before them today, however, bears little resemblance to what was claimed of it in 2002. Despite having received almost 9,000 formal complaints about alleged war crimes in at least 139 countries, the ICC has focused exclusively on Africa, choosing to indict 36 black Africans in eight African countries. African heads of state have perhaps understandably spoken of “race hunting” by a court largely funded by Africa’s former colonial powers. Unsurprisingly, the African Union has publicly called upon its 54 members not to co-operate with the court.
The credibility of any court is its independence. The truth is that the ICC is as independent as the United Nations Security Council, and its European funders, lets it be. Far from being an independent, impartial, international court, the ICC is inextricably tied to the UN Security Council. Articles 13(b) and 16 of the ICC’s own statute grant special “prosecutorial” rights, to refer or defer an ICC investigation or prosecution, to the Security Council, or more specifically to the five Permanent members of the Security Council. Political interference was thus made part of the Court’s founding terms of reference. There is the deeply questionable situation whereby three of the five Permanent members – the United States, China and the Russian Federation – who are not members of the Court, claim to be able to refer other non-signatories to the Rome Statute to the Court when it is politically expedient for them so to do, something they have done on two occasions. The former UN Secretary General Kofi Annan has admitted that “questions of credibility will persist so long” as three of the five permanent members of the Security Council are not parties to the Statute.
The court is also inextricably tied to the European Union which provides over 60 percent of its funding. The ICC has come to be seen within Africa very much as a European-funded and directed instrument of European foreign policy. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence, and has said that no American citizen will ever come before it.
Politics aside, the sheer incompetence of the Court at a basic level has been breathtaking. The court’s proceedings thus far have often been questionable where not simply farcical. Those who brought the ICC into being appear to be more concerned with gender balance rather than competence on the bench. Its judges – some of whom have never been lawyers, let alone judges – are the result of grubbily corrupt vote-trading amongst member states. Far from securing the best legal minds in the world this produces mediocrity. There is more than a passing resemblance to FIFA in as much as at least one elected “judge” had neither law degree nor legal experience but her country had contributed handsomely to the ICC budget. The Court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. Dozens of other “witnesses” have similarly disavowed their “evidence”. Most recently the ICC prosecutor had to admit that one of its own star witnesses in its case against Kenyan Vice-President Ruto was “a thoroughly unreliable and incredible” witness. Much the same can be said about the ICC as a whole.
There have been numerous examples of prosecutorial misconduct, not least of which the ICC Chief Prosecutor hiding hundreds of items of exculpatory evidence, which should have ended any trial because they would have compromised the integrity of any legal process. The same Chief Prosecutor was not only seemingly unaware of the basic legal concept of presumption of innocence but also threatened to criminalise third-parties who might argue a presumption of innocence on the part of those indicted – and as yet unconvicted – by the court.
But most disturbingly of all, while claiming that preventing and ending conflict is its most important raison d’etre the ICC’s pseudo-legal blundering has derailed delicate peace processes across the continent – thereby prolonging war. One can expect more of the same from any involvement it may come to have in the Middle East.
The reality is that the International Criminal Court is a billion Euro white elephant that is simply unfit for purpose. It has been a disaster for the concept of international justice. If the answer is the International Criminal Court, it must have been a stupid question.
The writer is the author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the Africa Research Centre. The book is available to read or download at www.africaresearchcentre.org. The author can be contacted by email at firstname.lastname@example.org.