Ten Years of ICC Justice

The ICC has accused a number of African warlords and ex-politicians and two (now three) African presidents, one now dead, the other(s) still in office with support from many African heads of state. Finally it has convicted a Congo warlord and has an Ivory Coast ex-president on trial as well as four Kenyans, losers in the recent electoral strife in that country. Is this really “International justice”?

Democratically and legally, the Court’s claim to internationality and legitimacy is weak. Major non-Western countries like China, India and Russia are not among the signatories. Nor is the government of the United States. Their eventual adhesion seems very unlikely.

The ICC’s activity is almost exclusively concentrated in Africa, victim of two centuries of colonialism and neo-colonialism. Apparently there are no “war crimes against humanity” on other continents. Its expensive new headquarters are in Europe, in Holland. Imagine a court here in Ottawa that was partly financed by wealthy philanthropists like George Soros and prosecuted crime only in the poorest Toronto ghettos? What legitimacy would it have?

We are reminded by the global legalists, sincere promoters of so-called “international justice” like Canada’s Philippe Kirsch the ICC’s first president, noted-author Erna Paris or Argentina’s Luis Moreno-Ocampo the first Chief Prosecutor, that we must be patient and that someday the court will gain universality and legitimacy. Would we accept such arguments to legitimize a Canadian Supreme Court that had only been accepted by the smaller provinces?

Notably, unlike the ICC, our Canadian courts, judges and judicial system, however imperfect, do have an essential democratic legitimacy. They are under the control of our government, its executive and legislative bodies and ultimately the citizens. The UN Security Council and General Assembly, created largely by the USA and other powers after WWII, are not a democratic world legislature or government. Lacking a democratic legislature, the ICC is much more totalitarian than democratic and its “justice” is selective to a degree that certainly no normal jurisdiction would ever accept.

And could the governments of France and Britain have accepted a court that could actually put their own leaders on trial? Their veto power in the Security Council prevents this. A former UK foreign secretary, Robin Cook said that the ICC was “not a court set up to bring to book prime ministers of the UK or presidents of the US.” The Court is independent of the United Nations but the Security Council can refer situations and prevent indictments.

The ardent founders of the ICC took much of their inspiration from the 1945/46 Nuremberg and Tokyo Tribunals, usually seen as a triumph of justice, and a welcome precedent. At the time this was far from the opinion of some observers. One was the award-winning journalist Paul Sauriol writing in the Devoir (Montreal) on October 1, 1946. Under the headline “A Dangerous Jurisprudence for Civilization” he states that “a tribunal created by the victors is radically unacceptable.”

The ICC project was, from its beginning in the 90s, the dream of western non-governmental organizations, NGOs, especially the World Federalists of the USA and their President William Pace. Officials in Canada’s Foreign Affairs department, open to an important role in a new Western middle-powers initiative, eagerly joined in.

With the 1991 fall of the Soviet Union, and the apparent triumph of the Western democratic free market “End of History”, many in the West were imbued with a certain enthusiasm and a confidence in such a new “universal” institution that would somehow “put an end to impunity”. The rallying call of the CICC, the NGO Coalition for the ICC is “No more impunity”. (Strangely one hears a somewhat similar appeal now, from the Canadian government, for more arrests and longer sentences.)

Eventually many Western and NATO governments and Japan signed on. Western governments certainly did not see themselves threatened by this court. Their colonial past, with all its atrocities, was far behind them. It was time for a New World Order. In 1998 the Rome Protocol (to establish the ICC) reached a certain critical mass of signatories and it became more difficult for governments, unless they were major powers, to say no. Refusal can be seen as a sanction for criminality and only powerful or non-aligned or anti-Western governments can resist.

Several major Canadian peace organizations were very enthusiastic about the ICC from the start. “No Peace Without Justice” was their invocation. But isn’t peace usually the result of conflict resolution requiring compromise, diplomacy and a rejection of punitive attitudes and victor’s justice?

For example, in Uganda in 1995, the ICC’s very first arrest warrant was for the (now famous) Kony, leader of the rebel Lord’s Resistance Army. This put an end to promising peace negotiations with the central government and the bloodshed continued. Many countries in Africa, with borders created by Europe, have diverse ethnic groups and languages, and a complex history that the Western-educated ICC judiciary and its zealous prosecutor (a modern Robespierre?) cannot always understand.

Justice” is, at times, a mask for ideological crusades. And the economic injustice of mass inequality and neo-colonialism can be a greater cause of conflict than some unpunished mass murderer.

There is even a sentiment among some Western international justice enthusiasts, that Africa and other former colonies need exemplary judicial condemnations (like the very costly trial of Liberian dictator Charles Taylor) to end crimes against humanity and to teach them that cutting off children’s hands is wrong. Somehow the Europeans from Belgium who followed such practices in their 60-year stay in their Belgian Congo learnt this on their own.

((“No more impunity” was also the call of frustrated white Southerners who created “citizen tribunals” after the US Civil War to judge the lawless former African slaves. “No more impunity” often applies only to a small selection of the guilty.))

Global legalism, like world government, is a fascinating and captivating idea especially for some zealous Western-trained activists. Today’s international politics and diplomacy are often indecisive and even immoral and state sovereignty can seem a narrow outdated concept to be replaced by global institutions like a World Criminal Court. Centuries ago, the Holy Inquisition, founded by the Dominican Order, in the then perceived global domain of Roman Christendom, seemed to its elites, a solution to that day’s gravest problem, heresy.

There is slight evidence that fear of arrest, a long costly trial, and imprisonment in The Hague is impeding potential perpetuators of war crimes caught up in the rage of conflict. The immunity of former colonial powers can however provoke resentment and instability. And are we to expect that legal solutions will take priority over politics and political change?

The ICC indictment of Libya’s Gaddafi, as Diana Johnstone observed on Counterpunch.org, helped to turn a civil war which could have ended with negotiations (as proposed by South Africa and the African Union) and far less killing and environmental and material destruction, into a precedence-setting NATO “humanitarian intervention” ending with total victory over the former regime. Zaya Yeebo of Amkeni wa Kenya, also at Counterpunch, sees ambitious elites in Africa, subservient to Western interests, using The Hague to further their careers by exiling their enemies. (4 Kenyan sent to the ICC). Should Africa not judge its own criminals?

Now we have the first ICC conviction, the Congolese warlord Lubango. Does this not mask the real causes of the terrible conflict in the DR Congo, the pursuit of its resources, and the interventions of its neighbours, particularly Rwanda?

Canadian ardour for the ICC was largely under a Liberal Party government inspired by Lloyd Axworthy, Louise Arbour, Romeo Dallaire and the works of Michael Ignatieff. Perhaps the present government will reduce Canada’s financing of ICC’s good salaries and costly expenses and contribute more to other African projects, like the expensive retroviral treatments which mean new life for the millions still untreated for AIDS or badly-needed health-care for new mothers. (Maternal deaths 300X that of Canada)

In spite of its founders’ good intentions, the ICC increasingly appears to many in Africa, China, Russia and India as another tool of the West to maintain its moral, military and economic supremacy.

References:

1. Hollow Hegemony/Rethinking global politics – David Chandler – Pluto Press-2009

2. Le Tribunal pénal international/gardien du nouvel ordre mondial John Laughland – François-Xavier de Guilbert – Paris-2003

3. The Perils of Global Legalism – Eric A. Posner – U. of Chicago Press-2009

4. Victors’ Justice/From Nuremberg to Baghdad – Danilo Zolo – Verso, London-2009

5. Humanitarian Imperialism – Jean Bricmont – Monthly Review Press