The International Criminal Court is “already dead to us” National Security Adviser John Bolton told the Federalist Society recently. The U.S. will, he said, resist the court “by any means necessary.”
Why would the Trump Administration take such a hardline against “the world’s court of last resort”? Founded in 2002, in the wake of the Rwanda and Yugoslavian genocides and mass rapes, the international body was supposed to try evildoers who would otherwise escape justice due to broken legal systems in failed states.
Opposing the court is not a new position for the U.S. or Mr. Bolton. The Bush Administration refused to sign the court’s implementing treaty in 2003, contending that it would lead to trials of U.S. soldiers and spies by a politically turbo-charged body located in Europe. At the time, many European leaders opposed President Bush’s war in Iraq and questioned its actions in the war on terror, including rendition and holding prisoners indefinitely at Guantanamo Bay. Mr. Bolton was even more prescient. He warned, in 1998, when the formation of the body was first being debated in Rome, that it would be ineffective, unaccountable, and overly political.
Now, U.S. soldiers may face charges for activities in Afghanistan. While the U.S. is not a treaty signer, Afghanistan is and the court claims jurisdiction over any actions taken there. If the ICC begins prosecuting American “war crimes” there, commanders will temper their battle plans, soldiers will become gun shy, and civilians will refuse to serve there. America’s sovereign right to defend itself will be weakened. Israel is also expected to be another target, since the Palestinian Authority has agreed to the court’s jurisdiction.
In practice, the International Criminal Court is a failed experiment.
Its trials are selective and political. While the court has received more than 10,000 written complaints referring to 139 countries, according to the London-based Africa Research Centre, it has focused its prosecutions exclusively on sub-Saharan Africans. Of the 10 investigations in progress, nine relate to African leaders or rebel leaders. (The only non-African case was against Serbian extremists.) This leads to the all-too-easy accusation that the court is racist, neo-colonialist or, in the words of one African writer, “white justice for black Africans.” Following a 2013 African Union summit, Ethiopian Prime Minister Hailemariam Desalegn denounced the court as a "racial hunt." While these charges are hyperbolic, the court’s selective prosecutions have undermined its credibility among Africans.
Nor has it been successful in Africa. The court’s first chief prosecutor, Luis Ocampo, pledged to indict and try the leaders of Lord’s Resistance Army, a Uganda terror group linked to slaughter, rape, and kidnapping, by the end of 2005. The militants have yet to face justice. Almost a decade ago, the court indicted Sudan’s president. No trial has occurred and Omar al-Bashir continues to travel freely to Arab and African states that have signed the International Criminal Court’s implementing treaty. The court has not delivered on its promise to bring justice to people who have none.
As a result, African nations are pulling out. South Africa, Burundi, and Gambia have voted to withdraw from the ICC and other African states are joining the stampede for the exit.
The ICC likes to refer to itself as the world’s court, but it represents fewer and fewer of the world’s nations. The U.S., Israel, China, and Russia refused to ratify the court’s implementing Treaty of Rome. The African Union itself has openly criticized the ICC and debated leaving the court’s jurisdiction en masse.
Nor has the court’s leaders held themselves to high standards. Chief prosecutor Ocampo, defended his use of offshore bank accounts by, according to Le Figaro, saying that his salary was insufficient. This hardly inspires confidence.
Even worse for the court’s credibility are the allegations brought by David Nyekorach Matsanga, president of the Pan-African Forum, that Silvia Fernández de Gurmendi, the ICC’s president, allegedly received illegal sums totaling some $17 million between 2004 and 2015. These payments, Mr. Matsanga said, were to bribe prosecution witness against the Sudanese president. A court spokesman dismissed Mr. Matsanga’s evidence as a falsified invoice and unverified bank records. (Mr. Matsanga is no angel. He was spokesman for the infamous Lord’s Resistance Army in the 1990s.) Still, the evidence deserves an impartial review.
The international Criminal Court is a noble ideal but a flawed institution. Far better to encourage nations to develop courts that are accountable to the victims and free from charges of selective enforcement or foreign intervention. South Africa's Truth and Reconciliation committee, and the Moroccans' Equity and Reconciliation Commission — a government body subject to oversight by the people's representatives — have heard hard cases and delivered judgements respected across the political spectrum. The two institutions aimed to rehabilitate the victims, and pay compensation for State outrages against them.
That would be a better models for Africa than a court funded and run from Europe.
Ahmed Charai, a Moroccan publisher, is on the board of directors of the Atlantic Council, the Center for Strategic and International Studies, the Foreign Policy Research Institute and Center the National Interest in Washington.
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