This week, in Kampala, Uganda, state members of the International Criminal Court begin their first ever review conference of the Court since its establishment in 2002.
There is certainly a case for examining the activities of the ICC over the past 8 years. When the Assembly of States parties, those states that have signed up to the ICC statute binding them to its jurisdiction, meet in Kampala there is a lot they should be worried about, not least of which the fact that the ICC has proved to be manifestly unfit for purpose. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the Court’s approach has been marred by blatant double-standards and serious judicial irregularities. The Hague-based ICC is increasingly being seen as the European equivalent of the US tribunal at Guantánamo Bay, which similarly claims international jurisdiction.
While the ICC presents itself as an international court this is quite simply not the case. Its members represent just over one quarter of the world’s population: China, Russia, the United States, India, Pakistan, and Indonesia are just some of the many countries that have remained outside of the Court’s jurisdiction.
The truth is also that the ICC is as independent as the United Nations Security Council and the Court’s European Union funding lets it be. Far from being an independent and impartial court, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council, or more specifically its five permanent members. Political interference in the legal process was thus made part of the Court’s founding terms of reference.
The Court is also umbilically tied to the European Union which provides over 60 percent of its funding. The expression, “He who pays the piper calls the tune”, could not be more accurate. The ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states. Instead, the Europeans have chosen to focus the Court exclusively on Africa. Despite over 8,000 complaints about alleged crimes in at least 139 countries, the ICC has started investigations into just five countries, all of them African. Given Africa ’s previous traumatic experience with the very same colonial powers that now in effect direct the ICC, this must create an alarming déjà vu for those who live on the continent. The EU is additionally guilty of economic blackmail in tying aid for developing countries to ICC membership – while at the same time having criticised Washington for tying aid to bilateral immunity deals with countries that were members of the ICC.
The Court’s proceedings have often been questionable where not farcical. Its judges – some of whom have never been lawyers, let alone judges – are appointed as the result of vote-trading amongst member states. 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. There have been prosecutorial decisions which should have ended any fair trial because they compromised the integrity of any subsequent process. The ICC’s first trial stalled because of judicial decisions to add new charges half-way through proceedings. Simply put, the Court has been making things up as it goes along.
The ICC claims to be “economical”, yet it has cost half a billion Euros to put on one deeply flawed trial, which subsequently ground to a halt for months. The ICC claims to be victim-centred, yet Human Rights Watch has publicly criticised the ICC’s ambivalence towards victim communities. The ICC claims to bring “swift justice” but it has taken several years to bring the first accused to trial for allegedly using child soldiers. The Nuremberg trials, which addressed infinitely more serious charges, were over within a year. The ICC claims to be fighting impunity, yet it has afforded de facto immunity and impunity to several serial abusers of human rights who happen to be friends of the European Union and United States.
Africa fought long and hard for its independence. It must reject this new “legal” colonialism. The ICC’s double-standards and autistic legal blundering in Africa has derailed delicate peace processes – thereby prolonging devastating civil wars. There is a clear lesson for countries in Africa and elsewhere: do not join the ICC and do not refer your country to the ICC. The ICC does not have Africa’s welfare at heart, only the furtherance of Western, and especially European, foreign policy and its own bureaucratic imperative – to exist, to employ more Europeans and North Americans and where possible to continue to increase its budget.