The ICC: The Empire's Court


by BAR executive editor Glen Ford

The International Criminal Court has turned into its opposite: an injudicious, selective enforcer of imperial policy, rather than a global standard of criminal law. The cast of defendants have all been African and outcasts from the U.S. imperial orbit, from the ICC’s inception. “The ICC has been used as an instrument of war; not an instrument of peace, but war by other means. It’s time to 'scrap it.'”

The ICC: Imperialism Court

by BAR executive editor Glen Ford

A racist, biased, colonialist court has no credibility.”

The International Criminal Court, a dispenser of one-sided justice to a select group of Africans targeted by the U.S. and its allies, “violates the letter and spirit of the UN Charter, principles of legality, and fair and equal justice for all without discrimination.” That was the sentiment of many of the 100 or so lawyers, law students and human rights activists who gathered in Montreal, Quebec, for a conference under the heading: “International justice for whom?” This Third International Conference on the Defense of International Criminal Law found little to defend in the conduct of the ICC.

The International Criminal Court is a strange legal animal. Despite its global mandate to prosecute persons for genocide, war crimes and crimes against humanity, the ICC has pursued indictments only in Africa, where it has charged 29 people in cases involving eight countries. The organization, based in The Hague, Netherlands, purports to fight against a “culture of impunity,” yet is prohibited from prosecuting crimes committed prior to July 2002, the date of its founding under the Treaty of Rome. Thus, hundreds of years of European slavery, genocide, and every other conceivable form of human rights atrocity are beyond the reach of the ICC. Europe is effectively granted impunity from centuries of crimes in Africa and around the globe.

Countries that are not signatories to the founding treaty, such as the United States, remain outside its jurisdiction, yet cases can be referred to the ICC for prosecution by the United Nations Security Council, where the U.S. is by far the most influential player. The ICC’s former chief prosecutor, Luis Moreno Ocampo, actively sought to enlist the “special forces” and “rare and expensive capabilities” of the U.S. to enforce ICC arrest warrants, and U.S. “observers” take part in most high-level ICC parlays.

The ICC has pursued indictments only in Africa, where it has charged 29 people in cases involving eight countries.”

African states did not contemplate that the administration of justice at the ICC, in particular within its first decade of existence, would be discriminatory, selective justice and focused totally on Africa,” said Chief Charles A. Taku, a traditional leader from Cameroon who is also legal counsel at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, the Special Court for Sierra Leone, and the African Court on Human Rights and Peoples Rights in Arusha. The ICC has turned out to be “a tool of imperialism,” said Taku.

Selective, or discriminatory, justice is no justice at all. The West – meaning Europe’s former colonial powers and the U.S. – is allowed to posture and pontificate about “fighting impunity,” while the ICC’s exclusive prosecution of Africans gives the impression that “Blacks are inherently criminal and have a propensity to kill each other,” said Taku.

Who pulls the ICC’s strings? In the ICC’s Kenya case, the Court initiated the proceedings on its own authority against Uhuru Kenyatta, the son of the country’s founding father, Jomo Kenyatta, and others in the deaths of 1,200 people in violence following disputed elections in 2007. However, it is widely believed that the United States and Britain are using the Court to favor Kenyatta’s political rival, Raila Odinga, and to chastise the country for opening up to diversified trading partners, especially China.

The U.S. controls the ICC, first of all through the NGOs,” said Otachi Bw’Omanwa, defense lawyer for Kenyatta and his co-defendant, cabinet secretary Francis Muthaura. Much of the evidence used in ICC indictments is actually gathered by non-governmental organizations funded by the United States, said Bw’Omanwa. “More importantly, the U.S. exerts political and military muscle through the UN Security Council.”

The ICC has turned out to be ‘a tool of imperialism.’”

Both the Kenyan administration and the national assembly tried to stop the ICC’s intervention in the country’s affairs, and many fear the process will inflame tensions, rather than promote reconciliation. However, reconciliation among Africans does not appear to be the ICC’s mission, especially in its cases stemming from the 1994 mass killings of Tutsis and Hutus in Rwanda and the genocide of six million Congolese that followed. Instead, the ICC behaves much like an international arm of Rwanda’s minority Tutsi government and its U.S.-trained president, Paul Kagame.

Iain Edwards is a young lawyer based in London, defense counsel for Victoire Ingabire. A leader of the opposition to Kagame, Ingabire returned to Rwanda from exile in 2010, intending to run in elections under the Unified Democratic Forces banner. Instead, she was charged with collaborating with terrorists and promoting “genocidal ideology” – a catch-all for anyone that does not buy into the version of events that put Kagame in power after the bloodletting of 1994 and drove much of the majority Hutu political class into hiding.

Ingabire’s legal prospects are not good. “The law is simply not respected in the courts of Rwanda,” said Edwards. It is nearly impossible to mount a defense when potential witnesses are treated as accomplices in crime. Yet, the ICC routinely extradites Rwandans back home, despite zero prospects of even rudimentary justice. Edwards say he has 49 witnesses who would testify that one of his clients, Jean-Bosco Uwinkindi, a Pentacostal pastor, was not involved in killing Tutsis in 1994. However, none of them “will accept guarantees of safety” to testify in a Rwandan court “whilst the current regime is in power,” said Edwards. “It is not clear if the accused could even testify in his own defense.”

ICC behaves much like an international arm of Rwanda’s minority Tutsi government and its U.S.-trained president, Paul Kagame.”

The test for ICC extradition to Rwanda should be: Will the defendant receive a fair trail? The answer is clearly, No, yet the ICC sends most defendants to Kagame’s courts, anyway. “Things look pretty bleak for Rwandans in the diaspora,” said Edwards.

If that is the case, then “isn’t the whole reason for the ICC undermined by transferring defendants to Uganda?” asked David Jacobs, a labor and civil liberties lawyer from Toronto. “Why did it exist in the first place?”

One speaker came to the ICC’s defense. Professor Fannie Lafontaine, of Laval University, a specialist in international humanitarian and human rights law, noted the ICC’s many mistakes, including its “idiotic decision” to issue an arrest warrant against Sudanese president Omar al-Bashir for genocide and crimes against humanity in Darfur, which “simply alienated the African Union.” However, she declared: “We will simply not go back to where the worst criminals are sitting on a beach sipping a drink.”

We? Who is “we”? Are “we” the North Americans and Europeans that run the ICC show? And who are “the worst criminals”? Are they the all-African defendants in the ICC’s dock, or the imperial powers that dominate international structures, including the ICC? Aren’t there war criminals sipping drinks in the halls of power in Washington, London and Paris?

The ICC has been used as an instrument of war, not an instrument of peace, but war by other means,” said Toronto’s David Jacobs. It’s time to “scrap it.”

Things look pretty bleak for Rwandans in the diaspora.”

Phil Taylor, a journalist who has worked as an investigator for the ICC, mocked the Court’s claim to seek “an end to a culture of impunity.” The Rwandan Patriotic Front, Paul Kagame’s army, which has been repeatedly implicated in the Congolese genocide and the mass killing of Hutus in Rwanda, “was never charged with any crime,” said Taylor.

A racist, biased, colonialist court has no credibility,” said John Philpot, a defense counsel at the International Criminal Tribunal for Rwanda and the ICC, and an organizer of the conference. Junking the ICC is not akin to “throwing out the baby with the bathwater.” Under the current political arrangements, the ICC is hopelessly selective in its prosecutions. “If there is a political change, then proper international tribunals can arise. But you cannot respect these [current] tribunals.”

Defense lawyers, whose natural inclination is to work behind the scenes, to speak within the narrow confines of legal immediacies, must expose the ICC as a tool of global power, not justice.

We have to go public. We cannot limit our work to technical work,” he said.

BAR executive editor Glen Ford can be contacted at [email protected].