It had long been rumored that Namibian President Hage Geingob’s ultimately un-delivered speech to the African Union summit in South Africa last July included a stinging rebuke of the International Criminal Court.
Here are the widely reported relevant leaked lines:
Some people are saying we are the ones who created the ICC. However, when one creates something to be an asset but later on it becomes an abomination, you have the right to quit it since it has ceased serving its intended purpose….No institution or country can dictate to Africans, who and by whom they should be governed.
Now the nation’s information minister Tjekero Tweya has announced Geingob’s cabinet plans to make good on that warning, accepting a recommendation by the ruling Swapo Party to withdraw Namibia from the ICC — thorny “technical issues” of exiting the Rome Statute, which Namibia signed in 2002, notwithstanding.
The ICC’s earliest supporters, it appears, grow weary of being its only targets.
What should an International Criminal Court member state do if it feels the Court is behaving in an unfair, politicized manner by, say, using recanted testimony in a continuation of an already bafflingly “amateur” prosecution?
That’s easy, says the ICC: Sit down and shut up.
Here’s the story: A Kenyan delegation hoping to lobby other ICC member states at the London Assembly of State Parties Session in its quest to reform Hague practices has drawn the ire of the aspiring transnational behemoth.
The ICC runs into the world’s largest powder house waving a torch.
That is how Lawfare Tyranny described the International Criminal Court’s ill-advised and completely unwarranted entree into the most complex, thorniest political conflict in modern history.
And now, apparently, others are beginning to wake up to the fact that inserting a highly politicized, truculent aspiring transnational behemoth with a track record of acerbating, not reconciling, conflicts into the mix might not be such a great idea.
A United Nations Security Council resolution drafted by New Zealand and circulated amongst that body’s fifteen members, seeks an end to “provocative acts” on both sides, explicitly calling on Israel to stop settlement construction and strongly suggesting Palestinian leaders “to refrain from referring…a situation concerning Israel or the Occupied Palestinian Territories to the International Criminal Court.”
Naturally, Amnesty International — an organization that has never been able to discern the lofty mission statement of the ICC from the reality of its practices — is not pleased.
Lawfare Tyranny
You have to appreciate the chutzpah of a Hague lawyer acting an utter coward in his demands for anonymity even as he claims essentially unlimited power for his organization.
Here, via The Quint, we find the nameless cog in the machinery of an aspiring transnational behemoth explaining why India, a state that is not party to the Rome Treaty, is nonetheless obligated to arrest the head of another state likewise not party to the Rome Treaty:
A lawyer at the ICC in the Hague, who wished to remain anonymous, explains that the UN can challenge the Indian defense of not being a party to the ICC under a Chapter VII resolution. This can create an obligation for member states like India to cooperate under the UN Charter. Continue reading
By Shawn Macomber • Lawfare Tyranny
The Russian state-funded media outlet Russia Today is hyping a recent interview in which journalist Neil Clark insists arresting former British Prime Minster Tony Blair on war crimes charges is not only the single viable way to keep the already-nebulous concept of international justice from becoming a “farce,” but also a wonderful opportunity for the International Criminal Court to at long last prove to the world it is not the den of racists its track record indicates it is.
The relevant bit from Clark:
The International Criminal Court, the ICC, I think has indicted 36 people so far — all of them are black Africans. They have been accused of being a racist body. Now there’s a chance for them to indict Tony Blair for war crimes. The case is absolutely crystal clear: He led Britain into an illegal war with a sovereign state on deceitful grounds… A million people have died…If Tony Blair isn’t put on trial for war crimes, then who else is going to be put on trial for war crimes? It really makes the whole system of international justice a farce… The ICC is indicting African leaders for crimes that are not on the same scale as Tony Blair’s crime. The Iraq war was the greatest crime of the 21st century.
Whatever the merits of the argument, it is obviously a popular sentiment over at Russia Today:
Of course, as usual, the ICC cheerleading is entirely situational.
By Shawn Macomber • Lawfare Tyranny
The International Criminal Court isn’t having a great year when it comes to enticing member or non-member states to take it seriously.
First, Rome Statute signatory South Africa, for a series of actually not-so-simple reasons, allows Sudanese President Omar Hassan al-Bashir to attend a June meeting of the African Union unmolested despite the international warrant out for his arrest, then ignores the ICC’s demands for an official explanation, then, when pressed, essentially says, “Thanks, but no thanks — we’ll just pull out of the Court.”
By Shawn Macomber • Lawfare Tyranny
In a powerful Washington Times op-ed this weekend South Sudanese President Salva Kiir Mayardit writes of the jubilation of achieving independence five years ago, the struggle to build a representative government and civil society amidst civil war, and his bitter disappointment at being strong-armed by Western nations into a peace deal that, in his words, “undermines the sovereignty and democratic institutions of our nation in key, unfortunate ways.”
An excerpt:
We knew instinctively that a nation was more than a border and a government, because for 70 years we had been shackled to something that was nothing more than a border and a government.
In our own country, we said, our government would act for us and not against. Never again could an official or favored group simply take from us on a whim. And never again would any of us be treated as lesser than any other.
It was our friends in the international community who helped shape those feelings into words. “Accountable, representative institutions;” “the Rule of Law;” “inalienable and equitable rights” — for many in South Sudan, the institutional vocabulary was new. But we all had known their meanings by their absence.
Five years later, we see how hollow those words can be in the outside world.
Kiir then discusses a few of the problematic issues inherent to the peace accord:
By Shawn Macomber • Lawfare Tyranny
South Africa will exit the International Criminal Court.
For a primer on why, see our previous coverage:
South Africa Refuses to Kiss the ICC Ring.
Not So Simple: Inside South Africa’s Decision Not to Arrest Omar al-Bashir.
The West to Africa: Do As We Say Not As We Do.
How Unpopular Is the ICC in Africa?
South Africa Doubles Down on Defiance.
By Shawn Macomber • Lawfare Tyranny
The International Criminal Court’s arbitrary deadline for South Africa to explain its decision not to arrest Sudanese president Omar al-Bashir during a June meeting of the African Union came and went this week. And, despite the wailing and gnashing of teeth of the ICC and its fair-weather allies, the South African government refuses to back down from its position that arresting the head of a state that is not party to the Rome Statute is far more problematic than the Court prefers to make it out to be.
Here is an excerpt from the official statement of the South African Department of International Relations and Co-operation on the matter:
Evans Monari is a senior litigation attorney in Kenya who has, as noted in his official firm biography, “represented various clients in public inquiries and inquests. In 2011 he successfully led several international criminal lawyers in the defense of Gen. Mohammed Hussein Ali, former head of the Kenya Police, before the International Criminal Court at The Hague.”
By Evans Monari • Lawfare Tyranny
After weeks of judicial inactivity, the International Criminal Court last Thursday issued four significant rulings, by three theoretically independent organs.
The Prosecution formally closed its case — exactly two years after the case opened, and four years after the confirmation hearing. The Trial Chamber granted the Defence teams the opportunity to appeal seven issues emanating from its controversial decision to admit the recanted statements of five witnesses.
And, as a distracting side show, the Pre-Trial Chamber unsealed two new warrants of arrest for Kenyans accused of witness interference, Paul Gicheru and Philip Kipkoech Bett, and reaffirmed an existing warrant of arrest for Walter Barasa.
It is not coincidental that these rulings were delivered simultaneously.
By Shawn Macomber • Lawfare Tyranny
So all this week the Guardian is celebrating “the United Nations’ vital agencies and associated bodies” and while our friends at the International Criminal Court managed to land the No. 2 slot on the publication’s “best bit of the UN” list, the write up exudes more of a participation medal vibe than anything else.
Alas, the Court doesn’t get out of the opening sentence — never mind the first paragraph! — without a fairly serious black eye:
The international criminal court (ICC), created under UN security council auspices in 2002, has been the subject of political controversy throughout its short history and has been criticised over its perceived bias against Africa. The court, based in The Hague, has also been attacked over its limited number of successful prosecutions – two convictions, both of Congolese warlords, in 13 years – and over the cost of its operations, estimated at $1bn.
These are points we’ve hammered away at in this space, of course, but the context of the criticism — i.e. a supposed celebration of the Court’s existence and mission — is jarring.
Naturally, the next graph attempts to offer something of a defense…
By Shawn Macomber • Lawfare Tyranny
Though she eventually — and, alas, more than a little predictably — trots out the unpersuasive argument that the multitudinous failures of the International Criminal Court can largely be chalked up to a lack of funding, this openDemocracy essay by Human Rights Watch Senior International Justice Counsel Elizabeth Evenson detailing “just how far the ICC still needs to go to make its work accessible, meaningful, and legitimate in local communities” is a fascinating example of how even devotees of the Court can quickly be plunged into a dark night of the soul when they are intellectually honest about the institution.
For example:
Since investigations began in Côte d’Ivoire in October 2011, the ICC prosecutor has only opened cases related to alleged crimes committed in Abidjan, the country’s economic capital, and by forces affiliated with Gbagbo. This despite the well-documented facts that crimes were committed both by forces allied to the former president and those allied to Ouattara, the current president, and that many of the worst atrocities occurred outside of Abidjan.
So…rent-seeking and tailoring “justice” to the preferred power structure of the West?
Yeah, that sounds like the ICC, alright.
More:
By Shawn Macomber • Lawfare Tyranny
Last week we noted International Criminal Court Prosecutor Fatou Bensouda’s much-hailed rejection of a pre-trial chamber’s request that she reconsider her decision not to pursue a case against Israel regarding the Mavi Marmara raid looked more like a behind the scenes power struggle at the Hague than a selfless act of blind justice from a woman incapable of admitting error or submitting herself to the sort of accountability she would like to impose on others.
Likely as not, Bensouda couldn’t stand being publicly second guessed by a gaggle of robes she expects to do her bidding.
At any rate, this morning comes news of more chaos at the Court, as the Appeals Chamber reverses the decision of its Trial Chamber not to refer Kenya to the ICC’s membership over the nation’s failure to heed prosecution requests in its abandoned, “very, very amateur” prosecution of President Uhuru Kenyatta.
From the decision:
By Shawn Macomber • Lawfare Tyranny
The European Centre for Law and Justice (ECLJ) has submitted an amicus brief to the Appeals Chamber of the International Criminal Court defending the decision of the Court’s lead prosecutor not to heed a trio of judges’ naked politics-not-law demand that she open an investigation into the ill-fated Israeli raid of the Turkish flotilla, the Mavi Marmara. (Whether Fatou Bensouda did this out of a commitment to justice or to protect her hard-won power/turf is, of course, open to question.)
Read the full brief at this location. Here is a bit of the condensed reasoning from the press release:
[W]e have argued that the ICC does not have jurisdiction over Israel or Israeli forces at all because Israel is not a party to the Rome Statute, the treaty that created the ICC. A treaty (an agreement between two more States), by its very nature, binds only parties that agree to be bound by its terms. Under customary international law, the terms of a treaty cannot be forced on non-parties. This is a basic principle of international law. As such, we have argued that the Rome Statute does not bind Israel and cannot be applied against Israel. Yet, it appears that the politics of the Israeli-Palestinian conflict have influenced the Pre-Trial Chamber’s decision.Our brief urges the Appeals Chamber to review and decide this critical case appropriately, according to the applicable law, not anti-Israel bias.
More info on the group’s fight against the ever-creeping “lawfare” menace here.
“We will not stand by as our ally is undermined on the world stage,” Jay Sekulow, a chief counsel of the American Center for Law and Justice who has successfully presented an oral argument to the ICC lead prosecutor in the past, writes. “The stakes couldn’t be higher.”
By Shawn Macomber • Lawfare Tyranny
A group of Kenyan victims of 2007 post-election violence have a message for the International Criminal Court that has been holding itself up as their savior and advocate: Leave us alone!
Via the Daily Nation:
A frustrated IDP Network Kenya on Monday said that ICC Prosecutor Fatou Bensouda had failed to give them the justice they anticipated.
Mr Nelson Owegi, the network’s national organizing secretary and Kisumu coordinator Maureen Opondo also asked the ICC to relocate its office situated in Nairobi.
“The office of the ICC should leave us alone. We had a lot of expectations and the ICC has over time crashed them with every step they take,” Mr Owegi told journalists in his Kisumu office on Monday. […] “We no longer expect justice from them and we just want them to go.”
The ICC’s failed prosecutorial adventure in Kenya has been previously dubbed both “very, very amateur” and a “sinister” conspiracy, but the stark, brutal criticism from victims themselves is sure to raise eyebrows throughout the region and world, reinforcing the growing consensus that the ICC fruitlessly chases atrocities without deterring them.
