ICC Cannot Be Truly Impartial
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
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
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.
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
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
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
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
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
(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
Like other international organisations, it is claimed
that there is a close relationship between funding
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
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
So, in a sense, the cases are important for self-
(READ: Court declines to stop Uhuru from attending
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
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