How world politics, funding shape the operations of ICC

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.

India has also expressed concern that the Rome Statute made the court subordinate to the UN Security Council.

(READ: New hurdle for Uhuru in ICC case)

INFLUENCE OF FEUDING COUNTRIES

Reservations about the neutrality of ICC have been of concern since the court’s inception. One of the concerns relates to the fact that the few states that dominate the funding of ICC also seek to influence its activities.

Like other international organisations, it is claimed that there is a close relationship between funding and influence.

About 60 per cent of ICC funding comes from the European Union. Ugandan professor Mahamood Mamdani has observed that “ICC is dancing to the tune of Western states”.

Related to the funding is the staffing of ICC. Most of all the substantive positions are overwhelmingly staffed by members of the European Union. To assume that all countries would be treated equally and with same respect by the court’s employees is just simplistic and the highest degree of naivety.

It is also a fact that African countries signed on to the Rome Statute without much thought to the implications of the Statute primarily because there was great pressure from donor countries that used their financial support to armtwist them cede to the statute. These countries could, therefore, not make demands such as those that India and China made.

ICC also receives funding from non-governmental organisations and some have claimed that the court has been used to advance the specific interests of the NGOs. Furthermore, a core component of the ICC includes NGOs that assist in providing information and even in investigations.

However, the fact that some of those NGOs are aligned to political groups in the various countries can and does easily contaminate the neutrality and credibility of the court.

Such sentiments have contributed to the erosion of the perceived credibility of ICC.

Notwithstanding the outcome of the Kenyan cases, the future of ICC does not look good. This is not to say that there is no role for international justice. Rather, the court must undergo radical reforms for it to be relevant and to be immune from manipulation and also arbitrariness in execution of justice.

It is wrong and indeed intellectual arrogance to claim that those opposed to the ICC are morally inferior beings that condone impunity.

The concerns expressed by Israel, US, China, India and many other countries are relevant to Africans. In fact, it does appear that the court’s interventions in Africa have been contaminated by ethnic politics.

The Kenyan cases are very important to the court. Beyond the fact that it will be the first time a sitting president and deputy are facing trial, the court has from the start been keen to use Kenya to affirm its relevance, which has increasingly come into question.
For all the resources that have been spent on the court, there is too little to show and one can imagine that there is pressure on ICC bureaucrats to show some wins.

So, in a sense, the cases are important for self-preservation.

(READ: Court declines to stop Uhuru from attending ICC trial)

SELF PRESERVATION

When I was a graduate student, my professors and I published an empirical journal article entitled “What do Judges Maximize?”

Richard Posner, judge of the US Court of Appeals, used the same title in an article he published years later. The answer is simple as sub-titled in the Posner article — “The Same Thing Everybody Does.” Of course there are many elements that go into this — popularity, prestige, income, etc.

In my view and consistent to those expressed by many others, beyond seeking justice, we must entertain self-preservation as a key motive of the court. The court must demonstrate results to funding governments and various interest groups. This motive raises the probability of miscarriage of justice and selective prosecution as is quite apparent in the Kenyan cases.

Under the current structure, ICC is likely to continue losing support. Its scope of powers and especially the office of the prosecutor is too broad and wide open to political manipulation that it would be irrational to expect fair adjudication of justice.

Unless serious reforms are undertaken to ensure the court can be trusted to execute justice fairly, it will continue digging its own grave and in the process undermining international justice.

In essence, the court is its own worst enemy and living to the claims of an International Colonial Court. The future of ICC is either radical reforms or a funeral.