The ICC Is A Phantom Court

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The ICC is also being questioned whether it is for the protection of innocent victims of crimes against humanities, genocide, war crimes and crimes of aggression or for protecting alleged criminals.

[Global: Commentary]

When the International Criminal Court (ICC) was created in 2002, the world’s view was best summed up by Olusegun Obasanjo, the former Nigerian President, when he said, “We believed that it can serve some good for the world.” He was being interviewed by Sir David Frost for Al-Jazeera English TV March 17, 2009

This sentiment is also echoed by The Coalition for the International Criminal Court (TCICC), a large organization that includes 2,500 organizations around the world working in partnership to strengthen international cooperation with the ICC; to ensure that the Court is fair, effective and independent; make justice both visible and universal; and to advance stronger national laws that deliver justice to victims of war crimes, crimes against humanity and genocide.

After about a decade, and in view of the recent ICC Review conference in Kampala Uganda it is fair to ask if the ICC has served any good for the world.

Has it lived up to what it was hyped up to be? President Obassanjo’s assessment is, “I wonder today whether we have taken the right decision in supporting ICC because some of what I have personally seen, smack of more of politics than criminality and if ICC continues along that line, its repetition will be costly, endangered and undermined”.

After listening to a lecture in which the speaker tried unsuccessfully to find something hopeful about the ICC, I am convinced more than ever before that the ICC has no credibility. From its inception, the effectiveness of the ICC had been in question because one of the world’s super powers, the U.S. and its ally Britain did not sign off on it. They were concerned that their own nationals could be prosecuted by the ICC, an organization whose members include countries with which they do not agree. Besides, they trust their own legal system more than the makeshift ICC.

In an article in Family Security Matters, Adam Raezler reported that the U.S. Senate had made its desire very clear in that the U.S. should not support a court that would infringe on U.S. sovereignty. By the end of the conference a court was constructed that lacked any form of credible checks and balances --emphasis mine-- if the ICC was to be an independent international institution. Raezler went on to say, “Throughout history the U.S. has maintained that states, not international institutions are primarily responsible for ensuring justice in the international system and that the best way to combat these serious offenses is to build domestic judicial systems, strengthen political will and promote human freedom”.

While this is true in principle, the proposal is dead on arrival when it comes to its implementation. First, has the U.S. worked to help build domestic judicial systems, strengthen political will and promote human freedom? The answer can be found in Washington's actions. The U.S. has formed alliances with leaders like Presidents Yoweri Museveni of Uganda and Paul Kagame of Rwanda who are known by many international analysts to be the poster children of crimes the ICC should be prosecuting.

Second, the notion of an independent judiciary in semi- and failed states is a figment of imagination. Uganda under President Museveni has been found liable by the International Court of Justice (ICJ) for fomenting genocide in and plundering the natural resources of the Democratic Republic of the Congo.

President Museveni is also being accused of orchestrating genocide in northern Uganda.  

President Museveni’s protégés: Jean Pierre Bemba and Thomas Lubanga of the DRC both face cases before the ICC. President Kagame of Rwanda faces court cases--a Spanish court and French court indicted him. According to international law, leaders are ultimately responsible for serious crimes committed under their leadership. If the ICC was a credible institution, Presidents Museveni and Kagame would have already been indicted.

Instead, they are not only free as a bird, but the U.S. and Britain consider them their strongest allies in Africa.

The ICC has also lost its credibility because of politicizing the decision of whom to investigate, indict and prosecute. For example, the ICC and certain leaders have promoted the notion that sitting presidents cannot be indicted. That is why President Museveni has not yet been indicted. However, this notion came crushing down when President Omar Al-Bashir of Sudan was indicted early last year for war crimes in Darfur.

Also, next door to Uganda in Kenya, the ICC is threatening to indict leaders, including Predsident Kibaki and Prime Minister Odinga, if found responsible for promoting post election violence in 2008

In contrast, leaders in other parts of the world including Asia, Europe, South and North America who are known to have presided over the commission of crimes against humanity, war crimes, genocide and more recently the war of aggression are not being investigated, indicted or prosecuted by the ICC. The people are asking why not.

One of the criticisms of the ICC, noted by the U.S. Congressional Research Service among others, is that by prosecuting active participants in ongoing peace negotiations or recently settled conflicts, the court risks prolonging violence or endangering fragile peace processes.

A prime example of this was Juba peace negotiation between the Lord’s Resistance Army and the Uganda government. President Museveni effectively used the ICC to ensure that the peace negotiation never succeeded to won the support of the US for its quest to crash the Lord’s Resistance Army militarily using the so-called Lightening Thunder Operation, which turned out to be a lightening disaster for Congolese civilians.

The LRA is still roaming the vast territory of South Sudan, the DRC and the Central African Republic seemingly unimpeded. Before President Al-Bashir was indicted, some African leaders argued that the ICC should delay its action pending the conclusion of ongoing negotiation. Interesting as it may be, such a proposal simply delays the inevitable because even if the ICC indictments were suspended, justice would still remain an illusion--Why would individuals or government leaders willingly deliver themselves to the ICC after signing peace agreements?

The absence of the ICC alone does not equal to the absence of injustices and conflicts. After all there were conflicts and coflict resolutions before the ICC was created. Therefore, the ICC should stop promoting the illusion that it is the only method to prosecute the crimes it is attempting to prosecute.

The ICC is also being questioned whether the court protects innocent victims of crimes against humanities, genocide, war crimes and crimes of aggression or alleged criminals. For example, the Chief prosecutor Luis Moreno Ocampo, at the very least, is expected to be an impartial person. Yet, the present prosecutor Ocampo has been accused of personally compromising the integrity and credibility of his office.

Ocampo has been accused of raping a South African journalist and the ICC disposed of the case under questionable circumstances.

Similarly, Ocampo appeared with President Museveni while announcing the indictment of the LRA leaders, thus raising the issue of conflicts of interest. More recently, the ICC was accused of failing to protect witnesses who have or are willing to testify against indicted individuals. The accusations have cast serious doubts on the integrity, impartiality and independence of the Principle Prosecutor.

The ICC’s policy is to focus its efforts on the most serious crimes and individuals who bear the greatest responsibility for those crimes. Determining which individuals bear the greatest criminal responsibility is done according to, and dependent on, the evidence that emerges in the course of an investigation. Furthermore, the Court is complementary to national efforts.

While this sounds reasonable, it is problematic when it comes to its implementation. As noted previously, it simply makes no sense to expect the same leaders who are suspected criminals to be in charge of national courts or determining which individuals bear the greatest responsibility for the most serious crimes by virtue of the ICC relying on their cooperation for securing indictments, or investigating and even prosecuting the accused. The ICC is akin to a system which allows criminals to create their own courts where they serve as their own prosecutor, defender and judge.

One final point is that the ICC does not have a mandate to execute arrests. Thus it relies on the help of states and other actors to implement warrants of arrest to enable the court to fulfill its mandate. The surrender of Thomas Lubanga Dyilo, Germain Katanga, Mathieu Ngudjolo Chui and Jean-Pierre Bemba are important illustrations of how the court relies on states and other bodies in fulfilling its mandate. These arrests necessitated a complex process involving cooperation with the territorial state, states parties and international organizations.

The stronger ones or the elusive ones remain free. None of the LRA commanders have been captured. Most recently, Al-Bashir is still able to travel to countries who are signatories to the Rome Statue which created the ICC

Although the idea of the ICC is great, hypocrisy --and duplicity-- on the part of the U.S., Britain and other countries about the ICC, and the lack of credibility, lead me to conclude that the ICC is nothing but a mirage of international justice.

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