Practitioners and observers of international law have had an interesting year. Palestine’s successful application to join the International Criminal Court in the face of western opposition has run headlong into the refusal of most, if not all, African countries to cooperate with the same Court. The African position was brought into sharp focus by South Africa’s very public decision not to enforce an ICC arrest warrant for Sudanese president Omar al-Bashir while he was attending the June African Union summit in Johannesburg. Colombia, an early supporter of the Court – and subject to its investigative oversight – should review its membership of an institution that finds itself unable to credibly respond to allegations of selectivity, racism, incompetence and impotence.
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, even 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. Now in the fourteenth year of its existence, the actions of the International Criminal Court have exacerbated this crisis.
In hindsight, it can be seen that the Court clearly contained the seeds of its own destruction from the start. Good law evolves over decades. The Rome statute was driven and largely drafted by non-governmental organisations in a month on a take-it-or-leave-it basis.
It is said that a camel is a horse designed by a committee. The ICC is a court designed by non-governmental organisations. The chief counsel of one of the delegations in Rome at the time commented that the NGOs “were in on nearly every meeting. They were in on everything.”
The end result was a founding statute that even avid fans of the ICC acknowledge was seriously flawed. The resultant ICC is a judicial Frankenstein’s monster.
Many of those who initially welcomed the establishment of the court were from Africa and Latin America. 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. Africans feel that they have borne the brunt of what they see as an institution driven by political considerations at the expense of justice.
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 indite 36 black Africans in eight African countries. Alleged war crimes and crimes against humanity by western governments in Afghanistan and Iraq have been ignored. African heads of state have, perhaps understandably, spoken of “race hunting” undertaken by a court largely funded by Africa’s former colonial powers.
Unsurprisingly, the African Union has publicly called upon its 54 members not to cooperate 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 allow it to 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. Washington, nevertheless, demands that Africans should do so.
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, if not simply farcical. Those who created the ICC appear to be more concerned with gender balance 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 a 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 in relation to what false statements they should make. Dozens of other “witnesses” have similarly disavowed their “evidence”. Most recently the ICC prosecutor had to admit that one of the star witnesses in its case against Kenyan Vice-President Ruto was “thoroughly unreliable and incredible”. Much the same can be said about the ICC as a whole.
There have been numerous examples of prosecutorial misconduct, not least of which was the ICC Chief Prosecutor hiding hundreds of items of exculpatory evidence. This normally 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 who have not yet been convicted – by the court.
But most disturbingly of all, while claiming that preventing and ending conflict is its raison d’etre, the ICC’s pseudo-legal blundering has derailed delicate peace processes across the continent of Africa – thereby prolonging war.
This is where Colombia must take most care. It is not unimaginable that as the result of political pressure or incompetence the ICC might show the same lack of judgement with regard to the conflict in Colombia that it has displayed in Africa.
Colombia has been a supporter of the International Criminal Court since its establishment. It is now time for member states such as Colombia to reconsider their involvement with such a discredited organisation – as many Africans are in the process of doing, with South Africa taking the lead. The sad 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.
Dr David Hoile is the Director of the Africa Research Centre and author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the ICC. The book is available to read or download at www.africaresearchcentre.org. The author can be contacted by email at [email protected].
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