Is The ICC Fit For Purpose?
This year (in fact 1 July 2012 to be precise) marks the 10th anniversary of the coming into force of the Rome Statute that established the International Criminal Court (ICC). The Court itself was officially established as a permanent tribunal on 11 March 2003. And yet, with a staff of nearly 750, and having spent over one billion euros over this period, the ICC is yet to complete a single case and convict anybody. Curiously, all its indictees so far have been Africans – the most recent being from Kenya! Does this connote racial stereotyping? Does it mean Africans are the only people in the world who commit the gravest war crimes and crimes against humanity? Is there a political reason behind the focus on Africa? What does it say about the international criminal justice system – is it merely a farce? These are some of the questions we probe in this month’s special report on the ICC, written largely by Dr David Hoile, a public affairs consultant specialising in African affairs and author of the landmark book published in 2010, The International Criminal Court – Europe’s Guantanamo Bay?
The International Criminal Court (ICC) was embraced with enthusiasm by a wide range of people, NGOs, and governments when it came into being on 1 July 2002. Many of those who initially welcomed it were African. Despite an auspicious start, however, the ICC has run into considerable controversy. With hindsight, it can be seen that the Court clearly contained the seeds of its own destruction from the start. It has turned out to be one of the unsavoury manifestations of globalisation with what appears to be an almost exclusive focus on Africa. No wonder Robin Cook, the former British foreign minister, said before he died: “If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.”
On 11 March 2003, the ICC was officially established as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The Court can prosecute crimes committed only on or after 1 July 2002, the date the Rome Statute entered into force.
The ICC would claim to trace its roots to the International Military Tribunal at Nuremberg that tried Nazi war criminals after World War II. The Nuremberg trials did lead to UN proposals for a permanent successor court, but the campaign stalled in the 1950s, in part because of the Cold War.
The idea of an international criminal court was re-presented for consideration by Trinidad and Tobago at the 44th session of the United Nations General Assembly in 1989. In 1993, the UN Security Council established an ad hoc court, the International Criminal Tribunal for the former Yugoslavia (ICTY) which was then followed by the International Criminal Tribunal for Rwanda (ICTR), and then tribunals for East Timor, Sierra Leone, and Cambodia.
At its 52nd session, the UN General Assembly decided to convene the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, which was held in Rome, Italy, from 15 June to 17 July 1998, “to finalise and adopt a convention on the establishment of an international criminal court”.
This conference drafted a treaty for the ICC. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. Seven countries voted against the treaty: Iraq, Israel, Libya, China, Qatar, USA and Yemen. After receiving more than 60 ratifications by April 2002, the treaty became legal on 1 July 2002 for those who had signed up.
The ICC’s real roots are clear. As one of Africa’s most distinguished sons, Professor Mahmood Mamdani, points out: “The era of the international humanitarian order is not entirely new. It draws on the history of modern Western colonialism. At the outset of colonial expansion in the 18th and 19th centuries, leading Western powers – Britain, France, Spain – claimed to protect ‘vulnerable groups’.”
It is clear that the Rome Statute was rushed through the conference. While ostensibly a diplomatic conference, it was NGO-driven. Prof David Davenport has written about the tactics of the NGO activists at the Rome conference, stating that one of the tactics “was bundling the key elements of the Court into a package that became a take-it-or-leave-it proposal, but subject in the end to further compromise”.
Another tactic was to replace the consensus-based approach of customary international law with a straight vote of nations. “The bar for approval of the Rome Statute was set remarkably low, with the court to be approved upon ratification of only 60 nations out of 189 in the United Nations,” Prof Davenport writes. “For a court that purports to have worldwide jurisdiction, even over citizens of countries that do not sign the treaty, this is a narrow base of approval.
“Further, such a process takes no account of geographic representation, population base, or strategic considerations, but simply relies upon a one-nation-one-vote approach. The Statute went into effect with fewer than half the nations of the world ratifying it, representing considerably less than half the population of the world. Strategic powers, including not only the USA, but China, India, Japan and Russia were all absent; while the total ratification number was padded with small states that traditionally play little part in international affairs.”
As of October 2009, 110 states were members of the Court, and a further 38 countries had signed but not ratified the Rome Statute. Over 70% of the world’s population is outside the Court’s jurisdiction. This imbalance is highlighted by John Rosenthal, the American commentator: “Seven of the ratifiers [of the Rome Statute] taken together – San Marino, Nauru, Andorra, Liechtenstein, Dominica, Antigua and Barbuda, and the Marshall Islands – have a population of roughly 347,000, which is less than the population of New York’s smallest borough of Staten Island. On the side of the non-ratifiers, by contrast, one finds India with its billion inhabitants; China 1.25 billion; Indonesia 230 million; Russia 150 million; Japan 125 million; and, of course the USA 312 million”.
Thus, while the ICC may aspire to be a universal court exercising universal jurisdiction, the simple fact is that it does not qualify on either count. Its members only represent 27% of the world’s population. Therefore, for all its publicity and aspirations to universal jurisdiction, the simple fact is that the ICC is little more than a European court.
Even the ICC’s most avid supporters have admitted that the Rome Statute was itself seriously flawed. And it is not hard to see the fault lines. Good laws evolves over decades: the ICC Statute was rushed through in four weeks by Western NGOs not lawyers, on a take-it-or-leave-it basis.
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 UN 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. What is even more troubling is that three of the five permanent members are not even members of the ICC.
The Court is also logistically dependent on the UN. It was established by a multilateral treaty which states that it can exercise territorial jurisdiction or personal jurisdiction only in relation to states that are parties to the Rome Statute. The ICC thus “inherits” the jurisdiction of states parties, which gives the Court jurisdiction over crimes committed in a state party.
The Court claims to complement existing national judicial systems: it can exercise its jurisdiction only when it decides that national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to exercise jurisdiction over suspected criminals is therefore left to individual states.
One of the intrinsic flaws of the ICC is that it is unaccountable to any public entity. Article 16 also enables the UN Security Council to delay prosecutions for a year at a time.
The ICC’s management oversight and legislative body is in theory the Assembly of States Parties (ASP), which consists of one representative from each state party. Each state party has one vote and “every effort” has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote. The ASP meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and NGOs. The ASP elects the judges and prosecutors of the ICC, decides the Court’s budget, adopts important texts such as the Rules of Procedure and Evidence, and provides management oversight to the other organs of the Court. The states parties, however, cannot interfere with the judicial functions of the Court.
The USA opposed the establishment of the ICC from the start. Despite signing the Rome Statute, the Clinton Administration was unable to ratify the treaty, encountering fierce opposition from Congress. Washington objected to the Court on a number of grounds, including the perceived lack of adequate checks and balances on the powers of the ICC prosecutors and judges, the lack of due process and the absence of juries.
The Clinton Administration’s ambassador-at-large for war crimes issues, David Scheffer, told the US Senate Foreign Relations Committee that “the treaty purports to establish an arrangement whereby US armed forces operating overseas could be conceivably prosecuted by the ICC even if the US has not agreed to be bound by the treaty… This is contrary to the most fundamental principles of treaty law.”
The danger of politicised prosecutions was also pointed out by the US. “We are also concerned there are insufficient checks and balances on the authority of the ICC prosecutor and judges. The Rome Statute creates a self-initiating prosecutor answerable to no state or institution other than the Court itself. Without such an external check on the prosecutor, there is insufficient protection against politicised prosecutions or other abuses.”
The US has since moved beyond merely objecting to the premise of the ICC. Under President George W. Bush, America increased its hostility to the ICC, passing the American Service Members Protection Act of 2002, which became known unofficially as “The Hague Invasion Act”. This law threatens American lawyers with legal action should they ever work on a case which could lead to a US citizen being put before the ICC. And it ultimately would allow US troops to come and free any American on trial in The Hague, hence the unofficial name.
In furtherance of its hostility to the ICC, the US has signed bilateral immunity agreements (BIAs), known as “Article 98 agreements”, with most ICC member countries to exempt US citizens from possible surrender to the ICC. Each state party to an Article 98 agreement promises that it will not surrender citizens of the other party to international tribunals or the ICC unless both parties agree in advance.
Under the 2004 Nethercutt Amendment, ICC states parties who refuse to sign BIAs with the US are penalised with cuts in foreign aid. As of August 2006, over 100 BIAs had been signed, and 53 countries had publicly refused to sign.
And yet for Washington’s warnings about the ICC being used to pursue political vendettas, in allowing the UN Security Council to refer the Darfur (Sudan) case to the ICC, and America’s subsequent support for ICC actions against Sudan, Washington has itself used the Court to pursue its own anti-Sudan political agenda – and in so doing has proved its own point. This amounts to little more than the sort of short-term politicised opportunism that Washington criticised in others. In her confirmation hearing before the Senate Foreign Relations Committee in January 2009, Secretary of State Hillary Clinton stated: “Whether we work toward joining or not, we will end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice.”
Another major ICC refusenik is India whose declining to join was also a significant blow to the Court. India noted: “We have always had in mind a court that would deal with truly exceptional situations where the state machinery had collapsed, or where the judicial system was either so flawed, inadequate or non-existent that justice had to be meted out through an international court, because redress was not available within the country. That, however, has not happened.”
The Indian position clearly identified the legal flaw at the heart of the ICC: “The power to bind non-states parties to any international treaty is not a power given to the UN Security Council by the UN Charter. Under the Law of Treaties, no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted. “The ICC Statute violates this fundamental principle of international law by conferring on the Security Council a power which it does not have under the Charter, and which it cannot and should not be given by any other instrument. This is even more unacceptable, because the Security Council will almost certainly have on it some non-states parties to this Statute [which] will, therefore, give non-states parties, working through the Security Council, the power to bind other non-states parties.”
India, a state with nuclear weapons, was critical that the ICC Statute did not explicitly ban the use of nuclear weapons: “Expediency has prevailed.” India therefore tabled a draft amendment to list nuclear weapons among the armaments whose use is banned for the purposes of the Statute. “To our very great regret, this was not accepted.”
India noted: “The Statute does not list any weapon of mass destruction among those whose use is banned as a war crime… What this final decision means is that the ICC Statute lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”
Another major flaw is the ICC’s relationship with NGOs – it is a deeply unhealthy one. As a political entity, the ICC is naturally prone to political influences. The role of Western NGOs in the establishment of the ICC is clear. Prof William Schabas, director of the Irish Centre for Human Rights at the National University of Galway, noted that “a well-organised coalition of NGOs” drove “the dynamism of the Rome conference [that approved the ICC Statute]”. Even conservative commentators like David Davenport agreed: “A thousand NGOs came together under a master NGO, the Coalition for the International Criminal Court (CICC). The NGOs were central players involved in setting the agenda, drafting documents, and lobbying delegates.” This dominance raised the concern of “whether NGOs are appropriate and reliable leaders”.
The ICC also has a chief prosecutor, Luis Moreno-Ocampo, who put Darfur front and centre of his work and yet had never been to Darfur at the time, whose office had not investigated inside Sudan, and whose reliance on claims made by externally-based partisan “advocacy” groups and NGOs has tripped him up. The ICC has all too obviously ignored crystal-clear cases of superpower abuses of human rights and even abuses by their client states.
The Court has courageously gone after only those people it has seen as being weak and unprotected by the UN Security Council. The ICC, for example, has turned a blind eye to self-evident human rights abuses in Iraq, Afghanistan and Gaza. It has instead chosen to indict 27 Africans. And even in five of the African countries the Court has selected for action, it has been politically selective as to which human rights abuses it chooses to pursue. This has made a mockery of the Court’s claims to bring about an end to impunity.
There is a clear lesson for Africa: do not refer your country to the ICC. The ICC does not have Africa’s welfare at heart but only itself and its bureaucratic imperative – to exist, to employ more Europeans and North Americans, and where possible increase its budget.