In Summary
  • Reservations about the neutrality of ICC have been of concern since the court’s inception
  • Notwithstanding the outcome of the Kenyan cases, the future of ICC does not look good

A great deal of criticism is being directed at the International Criminal Court by Africans.

The criticism has intensified following the indictment of Kenya’s president and his deputy by the court. Increasingly, more and more African nations are expressing their dissatisfaction with the court and, specifically, its handling the Kenyan cases.

Other criticism is that the court has tended to focus almost exclusively on Africans, specifically black Africans.

Worse atrocities in other countries do not feature prominently in the court’s agenda. And there are many examples that suggest biases in the selection of countries and cases before the ICC.

The court’s supporters, on the other hand, argue that it is in Africa that crimes against humanity have been most prevalent and where justice systems are weak.

There are those who believe that supporting the court is a demonstration of a commitment to ending impunity. Those opposed to the court are considered to be of inferior moral standing. Such positions are based on a normative view of the court — one that is unbiased and above political manipulation.

But of course this is a naïve view. One must also consider what actually happens. The real behaviour of the court and, in particular, its motives and influencers. To ignore this is to assume that it operates in vacuum and not responsive to political pressures.

The court, like other international institutions, is subject to influence from various sources.

The fear of political manipulation and arbitrariness in its duties has led many nations fail to ratify the Rome Statute or to do so and then “unsign” their commitment. It is illustrative to look at opposition to ICC by major powers and important democracies such as the US, Israel, India and China.

A careful analysis shows the great wisdom of the US in rejecting to ratify the Rome Statute. There have been suggestions that Republicans are opposed to ICC while Democrats support it. Nothing could be farther from the truth.

CONFIRMATION HEARINGS

One only needs to review recent Senate confirmation hearings of President Obama’s appointees such as secretaries of State or Defence.
One question the appointees have to answer is: “As Secretary, would you advise the president to have the US ratify the Rome Statute?”

The answer to this question is always an emphatic “No, Never.” Or “The US should never cede its sovereignty to ICC.”
Chairing a sub-committee hearing on ICC in 1998, a senator, Grams, said:

“While I am relieved that the administration voted against the treaty of Rome, I am convinced that it is not in itself sufficient to safeguard our nation’s interests. The United States must aggressively oppose this court each step of the way, because the treaty establishing an International Criminal Court is not just bad, but I believe it is also dangerous.”

Contributing to the same hearing in 1998, Senator Dianne Feinstein (a Democrat) observed: “I share the concerns which ultimately led United States to determine that it could not support the draft statute that emerged from Rome. None of us would like to see a court that frivolously prosecutes Americans or which acts with politics, not justice as its motivating force.”

These observations clearly point to the fact that the court is subject to political manipulation and to deny it is simplistic and self-serving.
The US criticism of the court has also focused on fairness and even the quality of judges.

Apparently, the demand by the US that judges have both criminal trial and international law experience as a minimum requirement was rejected as too high a bar. So, the US does not consider the court appropriately staffed with qualified judges.

Reading through various documents on ICC, one gets the clear disdain by US policymakers of the possibility that an American would be subjected to judges from countries that may be biased against American citizens and who are most probably not fully qualified.

There is also concern about the wide-ranging powers endowed on the prosecutor who is “not accountable to any government or institution.”

But the US policymakers were smart. Even without signing the treaty, the US demanded that the European Union agree to exempt American soldiers and government officials from prosecution of war crimes at the ICC.

Israel, after initially agreeing to be a party to ICC, “unsigned” the Rome Statute because of concerns that “political pressure on the court would lead it to reinterpret international law or to “invent new crimes.”

Like the US, Israel considers the “powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel, which is prevented from joining any of the UN regional groups.

China and India have also categorically refused to cede to the Rome Statute over the court’s jurisdiction and the powers of the prosecutor, among other issues. Both fear that the prosecutor’s powers are too broad and would lead to subjectivity and arbitrariness in investigations and prosecutions.

Page 1 of 2