At the court of the naked Emperor: Reflections on the Assembly of State Parties of the ICC

David Hoile

The Assembly of State Parties, the body charged with the management and oversight of the International Criminal Court, is meeting this week in The Hague. It brings together smug western politicians, lawyers infused with their own self-importance, bored diplomats, naïve fresh-faced interns and a slew of excitable, self-righteous human rights activists from a variety of well-funded western non-governmental organisations. Having spent several days in attendance at this annual jamboree and having spent several years closely observing the behaviour of the ICC, Hans Christian Andersen’s tale The Emperor’s New Clothes comes immediately to mind.

For those perhaps unfamiliar with the story, Andersen’s The Emperor’s New Clothes is a short tale about two weavers who promise an emperor a new suit of clothes that is invisible to those who are unfit for their positions, stupid, or incompetent. The weavers “finish” the suit and pretend to dress him with it and the Emperor marches in procession before his subjects. Functionaries and others at the Emperor’s court cannot see the clothes themselves, but pretend that they can for fear of appearing unfit for their positions and the Emperor does the same. The townsfolk similarly play along with the pretence, not wanting to appear stupid. Then a child in the crowd, too young to understand the desirability of keeping up the pretence, shouts out that the Emperor is naked and the cry is taken up by others. The Emperor suspects the assertion is true, but continues the procession.

The comparison to the International Criminal Court could not be any clearer. A group of non-governmental organisations, the Coalition for the International Criminal Court, and states such as those within the European Union (the “weavers”), have promised the world an unimpeachable international judicial body (the International Criminal Court) that would pursue without fear or favour those guilty of the most serious international crimes such genocide, crimes against humanity and war crimes. By implication only those who are unfit for their positions, “hopelessly stupid”, incompetent or opposed to justice would oppose this court or its proceedings. In a comparison to the ICC, the latter-day court of the naked emperor is made up of bodies such as the Assembly of State Parties, other well-paid international functionaries, the lucrative international human rights industry, various dogsbodies and others whose jobs depend upon the burgeoning industry that is the ICC. The “townspeople” in this comparison are the many governments that have signed up to the ICC, western media and “civil society”.

Rather than focusing on the all-too-clear systemic failings of the International Criminal Court, the Assembly of State Parties has chosen to spend its time on “political correctness” issues, obsessed, for example, with what it describes as women’s rights, “gender justice” and the “advancement of women”. Huge amounts of time and effort appears to have been expended on securing the election of Judge Silvia Fernandez de Gurmendi as president of the ICC, along with two new female vice- presidents together with another woman as the ICC chief prosecutor. The ASP was awash with self-congratulatory acclamation at these achievements while ignoring the fact that the legitimacy and credibility of the court they were elected to supervise had reached an all-time low. The ASP and its self-obsessed delegates continue to fiddle while Rome burns. Not content with this gender asymmetry, apparently, President Fernandez de Gurmendi is now demanding five new women judges – with the ASP probably putting gender before ability again.

Another feature of the Assembly of State Parties is the presence of dozens of non-governmental organisations under the auspices of the Coalition for the International Criminal Court (CICC). That they were there is fitting perhaps given that the CICC has been more responsible than most for the disastrous institution the world sees before it today. It is said that a camel is a horse designed by committee. The ICC is a grotesquely deformed court designed by NGOs who foisted the fatally-flawed Rome statute upon the court on a take it or leave it basis. Even avid fans of the ICC admit the statute’s serious shortcomings. Professor William Schabas warned of “serious flaws”; Professor Carsten Stahn admits that the statute “is full of ambiguities and dilemmas”; M. Cherif Bassiouni has referred to its “many…flaws”; and Justice Louise Arbour has noted “fault lines” in the statute. The legacy of letting unaccountable NGOs draft international legal instruments is the sort of sub-prime justice being foisted upon Africa. The presence of the CICC, non-governmental organisations and other components of the self-serving human rights industry and their T-shirt wearing activists at the yearly ASP meetings continues to undermine the credibility of the body. Shrill and self-centred, they are the latter-day equivalent of Les Tricoteuses, the little old ladies who sat knitting beside the guillotine during public executions in Paris in the French Revolution – and with as much legal training.

That the Emperor is naked is clear for all to see. Established in 2002, the International Criminal Court can now be seen as a corrupt and impotent white elephant. 2015 has been a particularly bad year for the court. It has botched the Kenyan cases it has undertaken and its continuing alienation from Africa was centre stage internationally when South Africa, previously a keen member, publicly ignored ICC arrest warrants and appears on the verge of withdrawal from the organisation – something seen by observers as a death knell for the court. The ICC has consumed more than a billion euros in its 13-year existence and has only secured two deeply questionable convictions. 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. The Assembly of State Parties should also accept that it has grotesquely neglected its responsibility to manage the court. The ASP has turned a blind eye to systemic failure on the part of the ICC. The International Criminal Court has self-evidently failed across the board. Less than eight years of having been established the ICC-friendly Economist had already found it necessary to publish an article about the ICC entitled “International justice: Courting disaster?” Things have worsened considerably since then.

While the ICC pretends to be the world’s court this is simply not the case. Its members, however, represent under one-third of the world’s population: China, Russia, the United States, Pakistan and Indonesia are just some of the many countries that have remained outside the court’s jurisdiction. Four out of the five BRICS nations are not members of the court or have refused to cooperate with it. India, the world’s largest democracy, has chosen not to join the ICC because the court is subordinate to the United Nations Security Council and because it does not criminalise terrorism or the use of nuclear weapons. India also recently pointedly snubbed ICC calls for it to detain Sudanese President al-Bashir while attending a summit in New Delhi. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence, and has declared that no American citizen will ever come before it. That said, Washington is perfectly happy when it suits American foreign policy objectives to demand that black Africans appear before a deeply flawed court peddling sub-prime justice at best.

The ICC pretends to be independent. Far from being an independent and impartial court, however, the ICC grants special “prosecutorial” rights of referral and deferral to the world’s most political body – the UN Security Council (by default its five permanent members, three of which are not even ICC members). The court is also inextricably tied to the European Union which provides over 60 percent of its funding. The ICC has come to be seen within Africa very much as a European-funded and directed instrument of European foreign policy. The Office of the Prosecutor, for example, has to date received approximately 9,000 complaints about alleged crimes in 139 countries. From these almost nine thousand alleged instances of serious abuses of human rights, the ICC has acted in eight African “situations”, and indicted 39 Africans, to the exclusion of any complaints implicating white Europeans and North Americans or their protégés. Eleanor Roosevelt once noted that “justice cannot be for one side alone, but must be for both”. The ICC has turned a blind eye to self-evident human rights abuses well within its jurisdiction in Iraq and Afghanistan. Afghanistan is an ICC member state. As a result the court can investigate alleged war crimes committed by citizens of any country, ICC Member State or not, within its borders. Tens of thousands of civilians have died and well over one hundred thousand have been injured in the conflict in Afghanistan, many of them at the hands of NATO and US forces. The ICC has however ignored any allegations of war crimes by NATO, US or EU citizens in Afghanistan. The ASP has been silent.

The ICC promised to deal with the world’s most serious crimes. Instead the court has expended disproportionate amounts of time and funds on what many would see as low-hanging fruit, ignoring allegations of large-scale crimes against humanity in Iraq in favour of investigating the use of child soldiers in the DRC, and ignoring alleged war crimes in Afghanistan, preferring instead to pursue Malian nationals for destroying cultural property in the north of Mali.

The ICC promised “swift justice” but took several years to bring the first accused to trial for allegedly using child soldiers. The Nuremberg trials, which addressed infinitely more serious charges, were over and done within a year. The ICC pretends to be victim-centred yet Human Rights Watch has publicly criticised the ICC’s ambivalence toward victim communities. In 2013 an Avocats Sans Frontières report stated that the victim registration process was “problematic”. The American University’s War Crimes Research Office project has noted that “the victim application process is unsustainable” and that the victims are “frustrated”. The court promised to usher in a new era of gender justice, but these seems to be absent outside of the ASP’s corridors. Women’s rights specialists such as Professor Louise Chappell have noted that the ICC’s record in this respect “has been partial and inconsistent”, and that “The ICC’s legitimacy is fragile.”

Despite having consumed more than one billion euros the ICC has also shown itself to be stunningly dysfunctional. The court’s proceedings thus far have often been questionable where not simply farcical. At the heart of any judicial process is testimony provided by witnesses. The court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. In its first trial, that of Thomas Lubanga, a process that lasted seven years, the judges found all but one of the alleged former child soldiers presented as witnesses by the Prosecution to be unreliable. Dozens of other “witnesses” have either been similarly discredited or disavowed their “evidence”. This hallmark of incompetence continues to this day. Most recently the ICC prosecutor had to admit that one of its own star witnesses in its case against Kenyan Vice-President Ruto was “thoroughly unreliable and incredible”. In reality it is the Office of the Prosecutor that has been revealed to be thoroughly unreliable and unprofessional.

There have been scandalous examples of prosecutorial misconduct, not least of which the ICC Chief Prosecutor hiding hundreds of items of exculpatory evidence, which should have ended any trial because they would have compromised the integrity of any legal process. The ASP has simply stood by doing nothing.

That the International Criminal Court is corrupt is also self-evident. The Shorter Oxford English Dictionary defines “corrupt” as “destroyed in purity, debased; vitiated by errors or alterations.” The Assembly of State Parties is responsible for the appointment of judges to the ICC. It is in the selection of judges that the ASP and ICC have been at their most corrupt. ICC judges – some of whom staggeringly have never been lawyers, let alone judges before appointment – are the result of grubbily corrupt vote-trading within the Assembly of State Parties amongst member states and delegates. The relationship between appointments to the ICC and vote trading between states is an open secret. Selecting International Judges: Principle, Process, and Politics, a ground-breaking study of international judicial appointments, written by Professor Philippe Sands QC, and others as part of Oxford University Press’ International Courts and Tribunals Series, concluded that “the evidence leads unequivocally to the conclusion that merit is not the main driving factor in the election processes.” The study also revealed that “[m]any individuals who participate in the ICC process believe it to be even more politicized than other international judicial elections.” The sheer corruption of the process aside, the reality is that vote-trading results in mediocre, under-qualified or unqualified judges which in turn leads to a dysfunctional, politicised court. The Assembly of State Parties has been silent on this issue which is unsurprising given that all the decisions taken at the ASP itself are clearly decided by all-too-obvious bloc voting by the European Union and the Anglo-sphere.

That the latter-day Emperor is naked therefore is obvious. What is also clear is that those at the latter-day’s Emperor’s court, functionaries such as the Assembly of State Parties, are desperately trying to cover up the fact that the ICC is naked and that its nakedness is daily more evident. It is also clear that in this comparison the innocent child in the crowd who has revealed that the Emperor is naked has been Africa. Sight becomes insight, which, in turn, prompts action. Africa has placed on record that the ICC is a racist, corrupt and inefficient instrument of European foreign policy. And to extend the comparison, the naked Emperor may have been able to get away with his pretence three hundred years ago. The nakedness of the International Criminal Court’s pretence towards competence and legitimacy cannot avoid contemporary international public scrutiny.

Why has the International Criminal Court managed to get away with being such an obviously broken institution for so long? First and foremost, it serves European interests in destabilising Africa. Politics aside, another important reason is that the ICC is a billion euro plus industry with all the momentum that comes with it. Returning to the naked Emperor theme, the ICC’s continued existence is also partly explained by the concept of “pluralistic ignorance”, a term in social psychology which describes a situation in which a majority of group members privately see a failing, but incorrectly assume that most others accept it, and therefore go along with it. This is also described as “no one believes, but everyone thinks that everyone believes.” “Pluralistic ignorance” may help to explain the “bystander effect”, that is to say if no-one acts, onlookers may believe others believe action is incorrect, and may therefore themselves refrain from acting. Well, Africa, having now amply shown how corrupt and racist the ICC is as a body, is now acting.

The pursuit of justice, in the wake of wrong-doing and especially in the face of crimes against humanity and war crimes, is one of mankind’s most noble instincts. The International Criminal Court was embraced with understandable enthusiasm by many people as a step closer to securing justice. Despite an auspicious start, however, it can be seen that the Court clearly contained the seeds of its own destruction from the start. The ICC has turned out to be one of the nastier manifestations of globalisation with what appears to be an exclusive focus on Africa. The responsibility for the failure of the International Criminal Court rests in very large part with the Assembly of State Parties which has chosen to ignore the all too obvious failings of the court, preferring instead to focus on politically correct navel-gazing at the behest of self-indulgent non-governmental organisations. Also to blame are those states that use the ICC as an instrument of foreign policy and self-styled human rights activists who have all turned a blind eye to the reality of the ICC in furtherance of their own narrow ideological and funding imperatives.

The reality is that the International Criminal Court finds itself unable to credibly respond to allegations of selectivity, racism, imperialism, incompetence and impotence. The really sad thing is that in artificially sustaining the fatally-flawed International Criminal Court for their own ends, the Assembly of State Parties and its motley crew of hangers-on have badly discredited the case for international justice for quite some time to come.

 

 

Dr David Hoile is the author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the Africa Research Centre. The book is available to read or download at http://www.africaresearchcentre.org. The author can be contacted by email at africaresearchcentre@gmail.com.

 

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