The Politics Of International Criminal Law
There is an unspoken truth about international criminal law as currently practiced. It is that certain individuals from certain countries will never find themselves indicted before an international criminal tribunal. “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must,” writes Courtenay Griffiths QC, who acted as the lead counsel for ex-President Charles Taylor of Liberia during his trial by the Special Court for Sierra Leone.
I was a newcomer to international criminal law when I was approached to defend Charles Taylor, the former president of the Republic of Liberia in July 2007. My experiences in this field over the subsequent four years, particularly following the US and NATO operations in Libya, have led me to feel that fundamentally one cannot come to the practice, as opposed to the theory, of international criminal law, with the calculating eyes of a lawyer, but rather with the lessons and wisdom of history very much in mind, particularly the history of European and American colonialism.
In light of that experience, I now submit that the following propositions are true: (a) The West’s appeal to the supposed universal principles of international justice is hypocritical. (b) NATO and the US, in the post-Cold War world, have embarked on a project to establish themselves as the global enforcer of international legal norms. (c) This role, as “world policeman”, has been adopted to protect what are seen as vital Western interests, particularly in the new scramble for Africa. (d) “Humanitarian intervention” is the fig leaf behind which the US and NATO (aka the “international community”), masks its true intentions and goals, utilising, where necessary, the legitimising function of the UN Security Council.
The enforcement of these legal norms is: (i) mediated by relationships of relative power; (ii) selective in its application; and (iii) in some circumstances unsuited to the historical, social, cultural and other practical realities present in many of the societies in which they are sought to be imposed.
The global policeman
One of the essential and fundamental difficulties which has historically faced the idea of international criminal law is the absence of the machinery to enforce its writ. Lacking its own enforcement mechanism, international tribunals have relied upon cooperating states to execute arrest warrants and bring fugitives to justice.
Furthermore, many states, even if willing to cooperate, often lack the capacity to execute warrants, especially in cases of ongoing conflict or when suspects can cross international borders. Moreover, the African Union has rejected the ICC’s arrest warrant for its most high-profile target to date, the Sudanese President Omar al-Bashir, and it would have been interesting to see if the African Union, indebted as it is to Libya’s Muammar Al Gathafi, would have applied the same reasoning in his case.
Against the background of this enforcement crisis, the US and NATO have shown an increasing willingness to fill this void. From Yugoslavia, through Iraq and Afghanistan, and now in Libya this military alliance has begun to demonstrate an increasing willingness to wield military force across the globe. At one level, I believe that this is but one consequence of the globalisation of capital.
As we were warned, over a century ago, by a now supposedly discredited philosopher: “[Globalisation] compels all nations, on pain of extinction to adopt the bourgeois mode of production; it compels them to introduce what it calls civilisation [which of course includes human rights] into their midst, to become bourgeois themselves. In one word, it creates a world after its own image.”
In other words, to survive everyone must become like the West. The former British prime minister, Tony Blair, set out the reasoning behind this use of military force, in a speech entitled: “The doctrine of the international community”, delivered in Chicago on 22 April 1999. He argued that the Kosovo war and economic globalisation showed that the international system had to change: “We are all internationalists now, whether we like it or not. We cannot refuse to participate in global markets if we want to prosper. We cannot ignore new political ideas in other countries if we want to innovate. We cannot turn our backs on conflicts and the violations of human rights within other countries if we want still to be secure.”
Thus, profit, modernisation and national security, can justify intervention in other countries. In other words, national sovereignty will no longer be a bar to intervention in other countries. Alleged abuses of human rights can now be sufficient justification for such intervention.
In June 2009, at a public event in the US, the ICC chief prosecutor, Luis Moreno-Ocampo, declared the need for “special forces” with “rare and expensive capabilities that regional armies don’t have”, and said that the “coalition of the willing” led by the US, was needed to enforce ICC arrest warrants.
More recently, the special advisor to Ocampo, Beatrice Le Fraper du Hellen declared to CNN: “We have our shopping list of requests for assistance from the US government,” which “has to lead on one particular issue: the arrest of sought war criminals”.
Top of the list was President al-Bashir. She opined that it would be totally legitimate, both politically and legally, for the US to be the leader in this regard.
In March 2010, Stephen Rapp, the former chief prosecutor at the Special Court for Sierra Leone and now US ambassador-at large for war crimes issues, stated that: “The United States is prepared to listen and to work with the ICC and go through requests that the prosecutor has.”
The question then arises as to what it will mean for justice and the rule of law if international criminal tribunals, now primarily the ICC, come to be dependent on a military alliance led by the US with its own military agenda and interests, particularly in Africa and the Middle East, as its enforcement arm, especially when the US declares itself to be above the very law it is being asked to enforce.
All of this has to be seen against the background of increased US military engagement in Africa, particularly the new military command for the continent, AFRICOM, created in 2007, I say, to secure US access to Africa’s oil and other mineral resources and to challenge China’s increasing commercial and political influence in the region.
The new scramble for Africa
The great African writer Chinua Achebe, in his book Home and Exile, memorably says this: “The outburst of European activity across the earth and over the oceans in the period we call the Age of Discovery brought Europe in one bound to the doorstep of Africa, with some dire results for African societies, chief among them the Atlantic slave trade and colonial occupation.”
He continues: “Man is a story-making animal. He rarely passes up an opportunity to accompany his works and his experiences with matching stories. The heavy task of dispossessing others calls for such a story… Let us imagine that someone has come along to take my land from me. We would not expect him to say he is doing it because of his greed, or because he is stronger than I. Such a confession would brand him as a scoundrel and a bully. So he hires a story-teller with a lot of imagination to make up a more appropriate story, which might say, for example, that the land in question could not be mine because I had shown no aptitude to cultivate it properly for maximum productivity and profitability.”
Thus we would not expect the invaders of Iraq to admit that they wanted to take control of Iraqi oil resources, no, they were there to get rid of a tyrant, who was oppressing his own people and possessed weapons of mass destruction (WMD) which threatened the world. Even though they had placed the very tyrant in power.
Neither would we expect the US or NATO to be so candid as to state that their intervention in Libya was influenced by the fact that Libya was until recently Africa’s fourth-largest oil producer, possessing one of the continent’s largest oil reserves of some 44 billion barrels, or that it sits on the Nubian Sandstone Aquifer, an immensely vast underground sea of fresh water. No, theirs is a “humanitarian” intervention to protect civilian lives.
In this context, I am reminded of an extraordinary speech entitled: “The dividends of international justice”, given by Carla del Ponte, the then chief prosecutor at the Internal Criminal Tribunal for Yugoslavia (ICTY), at the offices of the investment bank, Goldman Sachs, on 6 October 2005:
“It is dangerous for companies to invest in a state where there is no stability, where the risk of war is high, and where the rule of law does not exist. This is where the long-term profit of the UN’s work resides. We are trying to help create stable conditions so that safe investments can take place. In short, our business is to help you make good business… International justice is cheap… Our annual budget is well under 10% of Goldman Sach’s profit during the last quarter. See I can offer you high dividends for a low investment.”
Thus the “white man’s burden” of the 19th century has morphed in the 21st century to become the West’s civilising mission to bring the benefits of human rights, international justice, an end to impunity and humanitarianism, creating in the process an unholy alliance between human rights activists, such as Human Rights Watch and Amnesty International on the one hand, and global capital on the other.
Lesser breeds without the law
There is an unspoken truth about international criminal law as currently practised. It is that certain individuals, from certain countries of origin will never find themselves indicted before an international criminal tribunal. “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must”.
This is the fundamental operating principle of international criminal law, rooted, not in the powerful countries’ commitment to justice but in their vastly superior economic and political power and their control of the global opinion-forming agencies.
The fact is that ruling elites can violate laws with impunity, while members of subject classes will be punished. Contrast bankers and rioters in contemporary Britain and the US, as opposed to Liberia, Côte d’Ivoire or Libya on an international level. Acts are defined as criminal because it is in the interests, or at least not against the interests, of a ruling class to define them as such.
There is nothing universal about Western states’ claim to support universal human rights. Instead, the claim is based on the assumption that some states are more civilised than others.
Thus, when the former British foreign secretary, the late Robin Cook, was asked on BBC Newsnight, whether the newly constituted International Criminal Court (ICC) might one day indict Western leaders for their decisions to go to war in Iraq, he retorted, outraged and indignant: “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”.
We should note that the guardians of “international justice” have yet to find a single crime committed by a great white northern power against people of colour. Equally the idea of “responsibility to protect” and “the end of impunity” have never been extended by the Western media or its intellectual elites to encompass crimes committed by these same powers.
In reality, international criminal justice is governed by the law of gravity – it always travels from top to bottom, from north to south. Consequently it is vital that we appreciate the critical role of racism in this discourse.
In this regard, it is important that we recognise the centrality of selectivity in this process: (a) selectivity of denunciation; (b) selectivity of investigation; (c) selectivity of prosecution; (d) selectivity in impunity.
Despite all this talk of an end to impunity, it turns out that all of the ICC indictments have been issued against Africans. Yet even within Africa this selectivity is nuanced, in that it carefully excludes some presidents with much blood on their hands, but immune from prosecution, because they are highly valued clients of the West.
Likewise, when one looks at the West’s response to the “Arab Spring”, one sees a marked divergence of attitude towards Libya as contrasted with Egypt, Bahrain (supported by a reactionary Saudi Arabia), Yemen and Syria.
This is why, in the Charles Taylor case, we were driven to introduce our closing statement thus: “The prosecution of Charles Taylor before the Special Court for Sierra Leone has been irregular, selective and vindictive from its inception. Examined from any vantage point imaginable, the case against Taylor has at its core political roots and motives and the inexorable determination of the United States and Great Britain to have Taylor removed and kept out of Liberia at any cost.
“Indeed, this case directly raises the question of whether the judicial process can be fashioned into a political tool for use by powerful nations to remove democratically-elected leaders of other nations that refuse to serve as their handmaidens and footstools.”
The abuse of international law arises because there is no link between international criminal law and the people over whom it claims to have jurisdiction. The possibility of its subjects bringing political pressure to bear, if there are abuses, is hugely limited.
When one observes the military interventions of the US and NATO around the world, it is important that we remind ourselves that Nuremberg was an innovation in its prosecution and conviction of individuals under the criminal law for planning and executing a war of aggression. This was judged to be, “not only an international crime” but the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”.
This recognition brought home the violent inhumanity of settler colonialism. It took the overtly racist conquest of the Third Reich to bring home the criminality of colonialism. Hitler had brought that European mode of thinking to its ultimate conclusion.
How is it then that half a century after the conclusion of World War II, we still have difficulty assigning a definition to the crime of “a war of aggression” under the Rome Statute of the ICC. Who benefits from this supposed uncertainty? Certainly not Africa.