ICC: The failure that keeps on failing

Following the recent collapse of one of the International Criminal Court’s high profile cases, it is manifestly unfair to continue subjecting Africa and its people to any aspect of a failing court which clearly no Westerner will subject themselves to, argues Dr David Hoile.

In December 2014, the International Criminal Court dropped its case against the Kenyan President Uhuru Kenyatta, stunning many in the international community. Many reasons as to why the case fell spectacularly flat were proffered. But I have been following the proceedings and have written extensively about the ICC since its inception.

For me two simple reasons sum up the shambolic failure of the case. The first is that the ICC simply had no case against Kenyatta. What had been presented as legal proceedings was little more than wishful thinking, and cobbled together by perjured “testimony”. In addition, the case was presided over by a chief “judge” who had never even been a lawyer before her political appointment to what many African pundits describe as a political court.

The absence of any real evidence, however, has generally not stopped this court from proceeding with its cases in the past. The ICC has bungled its way through all its cases to date in an all too similar fashion. Few surprises there, then.

The other reason the court ended the case against President Kenyatta can be attributed to what happened in October 2013, when Africa’s main decision-making body – the African Union – convened an extraordinary Heads of State Summit to discuss and review the continent’s relationship with the ICC, to which 34 African countries are signatories. The Summit raised the spectre of a mass disengagement from the court, with calls for a unified position to leave the ICC en masse unless it stopped its questionable and hypocritical focus on Africa and African leaders. If that had come about, it would have and could still destroy the disdained Hague-based institution, and probably spell its doom.

I was present at the AU in Addis when this happened. I knew then and there that President Kenyatta’s case would not be going much further in The Hague. Undoubtedly, the decision to dismiss the Kenyatta case was a political one, by a political court bent on protecting the more than $1 billion invested in the failing institution over the last 13 years.

In the meantime, while efforts are being made to prevent its collapse, the depths to which the ICC’s credibility is sinking are deepening. For example, the ICC admitted that the key witness it had called upon to testify in the ongoing case against Kenyan Deputy President William Ruto had made allegations that “go to the heart of the integrity of the prosecution’s case”. We have the extraordinary circumstance where the ICC’s own witness, stated that all witnesses whose statements were relied on to confirm the charges against Ruto, had given false evidence. The ICC then stated that its very own witness was “thoroughly unreliable and incredible”.

This was followed by another body blow when in documents released by the ICC itself, a former Member of Parliament was approached to testify against President Kenyatta, with an offer of Sh200 million ($2.2 million). Dozens of other “witnesses” have similarly disavowed their “evidence”.

For those of us who follow the ICC, the court has been remarkably consistent in its failings, not least in its witness procurement, which applies from its very first witness in its very first case – who admitted he had lied to the court and been coached on what to say – through to the current case against William Ruto, in which the court’s own witnesses have repeatedly admitted perjury.
All this and much more reveal the structural and procedural cancers eating away at the court’s credibility.

What are we therefore to make of the International Criminal Court? It is difficult to find anyone who would not agree that the pursuit of justice in the face of wrongdoing is at the heart of human values. Many Africans supported the establishment of the ICC when it was founded in 2002 because they believed it was a court that would dispense justice without fear or favour. Africa and the rest of the world were wrong.

ICC racial demographics
The ICC has proved to be a deeply flawed, hypocritical and professionally incompetent institution. And in as much as it claims to be a universal court, it is not! For two simple reasons: Firstly, China, Russia, the United States, India, Pakistan and Indonesia are just some of the many countries that make up two-thirds of the world’s population, but which have remained outside the ICC’s jurisdiction or refused to sign the Rome Statute.

Secondly, far from being international, it has deliberately chosen to focus exclusively on Africa and Africans, leaving itself open to accusations of being institutionally racist. Despite having received close to 9,000 complaints about alleged war crimes in more than 130 countries, the ICC has to date chosen to focus on eight African countries and has only ever indicted Africans.

The racial dimension is there for all to see. Having African faces here and there at the ICC will not change the simple fact that it is overwhelmingly funded by European Union states, is directed by Africa’s former European colonial powers and has emerged as little more than a racist instrument of European foreign policy focused exclusively on Africa. Many in the Global South see the ICC as little more than a European attempt at recolonising Africa by spurious legal means.

However, despite the ever-increasing protestations against it, the ICC claims to be independent. Well, it is not. For a start, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council, that is: five permanent members (three of whom are not even ICC members). Political interference in the legal process is thus part of the court’s founding terms of reference. That therefore cancels out the court’s independence.

The process of appointing its prosecuting judges is also questionable – as it is done using a shady vote-trading system amongst member states and as such, it fails to employ the best legal minds in the jobs, something that has been all too evident in the court’s proceedings.

As if that was not bad enough, the ICC chief prosecutor has appeared, at times, insufficiently aware of the legal concept of presumption of innocence of those indicted – and as yet unconvicted – by the court.

The ICC has also 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. The reality is that not a single white North American, European or Anglo-Saxon has or will ever appear before the ICC despite the continuing illegal wars of aggression the West is waging in the world.

Interestingly, the United States does not have enough confidence in the court and its processes to allow its own citizens to appear before it. The American government is nonetheless very happy, for its own political reasons, to demand that black Africans appear before it.

But the ICC will claim to the high heavens that it is a victim-oriented, not politically motivated court. However, Western NGOs, including Human Rights Watch, have called for the court to pay greater attention to victim communities in its pre-trial and trial processes.

The ICC also claims to be “economical” and that it brings “swift justice”, yet it has consumed more than a billion US dollars and has only just completed its first case – the controversial trial of Thomas Lubanga – since it began proceedings.

Despite being held in ICC custody since 2006, Lubanga’s case has only recently concluded. Nine years in custody is not swift justice.

The ICC claims to be fighting impunity, yet it has granted de jure immunity to the United States and afforded de facto immunity and impunity to NATO member states, as well as several countries that are serial abusers of human rights that happen to be friends of the European Union and United States.

The ICC claims to deter conflict. The reality is that the ICC’s pseudo-legal blundering in Africa has derailed delicate peace processes across the continent – thereby prolonging devastating civil wars. It has been argued, for example, that the ICC’s involvement in Uganda destroyed peace talks in that country, intensifying the conflict, which then spread into three neighbouring countries.
It is therefore unfair for anyone, more so the perpetually targeted Africans, to be subjected to the legally flawed and procedurally corrupt demands of this so-called court.