It has taken Africa just over a decade to conclude that the International Criminal Court (ICC), established in 2002 by the Rome Statute, is simply unfit for purpose.
That certainly is the conclusion of the South African government following the recent African Union summit in Johannesburg.
The institution African countries signed up for post 1998, a court that promised to pursue injustice without fear or favour, is not the one they see before them today. They were sold a false bill of goods. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the Court’s reputation has been irretrievably damaged by its racism, blatant double-standards, hypocrisy, corruption and serious judicial irregularities.
While the ICC presents itself as the world’s court this is 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.
A court is also only as credible as its independence. 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 – by default its five permanent members (three of which are not even ICC members).
Political interference in the legal process was thus made part of the Court’s founding terms of reference. The Court is also inextricably tied to the European Union which provides over 60% of its funding. The expression “He who pays the piper calls the tune” could not be more appropriate. The fact that the big five ICC funders are Africa’s former colonial masters also sits uneasily with a continent suspicious of recolonisation by questionable legal diktat. The EU is additionally guilty of blatant political and economic blackmail in tying aid for developing countries to ICC membership.
Africa is also correct when it points out that the ICC is self-evidently a racist court, in that it treats one race of people differently to all others. Instead of impartially enforcing the Rome Statute, the Europeans have chosen to focus the Court exclusively on Africa.
African heads of state have spoken of “race hunting”. Despite having received almost 9,000 formal complaints about alleged war crimes in at least 139 countries, the ICC has chosen to indict 36 black Africans in eight African countries.
In so doing 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. While the ICC’s key first two cases were African “self-referrals” it is now clear that the African governments were made “an offer they could not refuse”: refer yourself and we will only indict your rebels – if not we will indict both government and rebels.
The ICC has emerged very much as a European-funded and directed instrument of European foreign policy. Broader western hypocrisy is all too evident. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence and that no American citizen will ever come before it. Washington is nonetheless very happy, for its own political reasons, to demand that black Africans appear before it.
Double standards and politics aside, the ICC has shown itself to be irretrievably dysfunctional.
The court’s proceedings thus far have often been questionable where not simply farcical. 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. At least one elected “judge” had neither law degree nor legal experience but her country had contributed handsomely to the ICC budget.
Contribution shortened – Ed.