Is the ICC really needed?

It is a good question and one that I have spent the past five years thinking about. This will probably be the last blog post that I write about international justice for awhile. I am now in Hong Kong investigating tyranny of another kind. I am penning this from the 25th floor of our tower block apartment, with eagles circling below.

The court that I first came to write about – back in 2007 – was in far worse shape than it is today.

The prosecutor, of Argentinean stock, was dangerously incompetent and seemed to lack the fundamental judicial mores that keep most in the legal profession from saying outrageously daft things, verging on contempt.

The registrar, hailing from southern Italy, was a poor communicator and displayed, whenever I interviewed her, an arrogant disregard for victims which was not in line with the mandate of the court. (The ‘victims participation’ element of the court has always been controversial, but the fact remains that it is there and, in my opinion, rightly so. Those that don’t like it can, as with a lot of things, blame the French. It was them that bought it in.)

The Trust Fund for Victims – now one of the most worthwhile endeavours of the court (if only it could get any money!) – was a shambles, paralised by a particularly unpleasant form of infighting.

Like now, the ICC was badly strapped for cash. But even worse – it’s paymasters, the 100+ countries that had signed up to the Rome Statute – were not prepared to lend it a dime more, until it stopped squandering money and came clean about exactly where all this money was going.

The whole place stank of an unpleasant arrogance that spelt failure for the court and failure for ending injustice around the world.

And yet it was hard to argue against the validity of having a universal court (insofar as universality can be claimed when Russia, China and the US steadfastly refuse to join). For too long, the powerful and the rich had managed to escape justice, whilst the poor and voiceless have suffered. Now, with this shiny new court, the wrong-doers would be punished and the voiceless could at last shout out that they were being listened to.

At least, that was the theory.

But, the more that I wrote about it, the more that I started to realise that things didn’t seem to work as the idealists thought they should.

I was once told by a journalist friend of mine, who had been covering international justice for five years or so, that there was no way the court could ever work. At the time, still in the grips of a misplaced ideology, I scoffed at this and countered by enumerating all the wonderful things that the court could achieve if only certainly people that were running it would go. Now, three years on and with a whole new set of people at the helm of the ICC, I no no longer believe that the ICC is a good body to have in the world.

The criticism of the court is well known – and often valid – but I’ll include a few key examples here.

The ICC is beholden to too much political influence. Why did it go after members of the Lord’s Resistance Army, a Ugandan rebel group, rather than also investigate the national military? (A: they needed government help to carry out their investigations) Why is President Bashir of Sudan a wanted man, whilst that other Bashir – he of Syrian colours – has not yet been indicted? (A: Look who’s on the UN’s security council)

Investigations at the ICC are flawed. Investigators get their too late, fail to use proper forensics (their budget for this is disappointing, though this may change), rely too much on witness testimony and tip-toe around situations because they are afraid of nasty men doing nasty things (er, conclusion, get another job; one UN investigator once told me that “ICC investigators should have more balls” and he’s right, if ICC investigations are actually to mean anything). There is a new investigation strategy, but implementing its recommendations is likely to be fraught with difficulties.

The ICC is a Western institution based on European civil law (mostly thanks to French influence again). It is often in conflict with the laws or procedures that operate in the countries that it investigates, and makes no mention of local traditional justice in its mandate, which in some circumstances is a perfectly valid way of conducting business. Whilst I don’t hold with the argument often made by African leaders that the ICC is an imperialist venture out to get the blackman, I do agree that the West isn’t always right and is often very wrong.

And on the list goes.

But, for all these criticisms, the fact that what the ICC is trying to achieve – and what the likes of the much-admired Ben Ferencz, the last prosecutor of Nuremburg, have spent all their lives fighting for – is a noble goal indeed.

But the dilemma remains: how do you achieve that?

And that brings me to what I see as the fundamental flaw of the ICC as it stands at the moment: why is it that, in order to justify their existence, those behind the ICC insist that war criminals must be tried in The Hague at the hands of a judicial body that was set up by former European colonialst powers under the legal system that has governed those colonialist powers for centuries and which, for centuries, they have tried – with varying degrees of success – to impose on their vanquished colonies.

The answer reveals itself in the many conversations that I have had with American lawyers about Libya. America and the UK never wanted Libya’s wrong-doers hauled before the ICC, largely because they knew that this would be a terrific platform for Saif al-Islam – the Gadaffi heir – to strut his stuff, and also undoubtedly reveal one or two rather inconvenient secrets. They always wanted – and they still want – Libya to hush things up.

But there’s a big movement among American lawyers to lend legal assistance to the country, and help bolster its rather weak judicial institutions, so that it can try these heinous crimes in a fair and impartial way.

That is exactly what an organisation like the ICC should be doing. It is true that complimentarity (the idea that a sovereign state should try its own criminals if it has the capacity and the willingness to do so) exists. But exactly what is the ICC doing to make sure that justice can be done in these situation countries? The people of Uganda, of Sudan, of Kenya, of the Congo, of Mali aren’t stupid. They want peace and justice just as much as – and perhaps than – we want it for them. So why shouldn’t they be given the chance to make this happen.

The world doesn’t need an ICC, hewn from European law and weighed down by bureacracy, mediocrity and a strong hint of arrogance.

The world needs a very different type of organisation. An organisation that has at its heart the concerns of the victims that have suffered these terrible crimes, and who helps the people of these countries work together to see justice done.

The ICC just gets in the way.

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