THE growing allegations of the politicisation of the international criminal justice is a cause for concern as far as global legal development is concerned.
Global leaders are being accused of implementing political decisions through the International Criminal Court (ICC). The rising allegations that the ICC was only created to try African leaders and to extend the neo-colonial project are serious allegations.
Twenty-first Century legal and political scholars like Van De Marwe as well as Tim Murithi have also expressed in their writings, the growing implications that the global legal development is under threat rising from the unprecedented political interference through the egoistic and self-centred nature of today’s politicians. Criminal Justice and or social justice have just been rendered vague and or meaningless due to the escalating allegations of an international judicial capture by global political actors.
These obvious loopholes in the ICC, robes it of its credibility to deliver balanced justice to the global population. One of the world super powers, the United States of America, is not even a signatory to the Rome statute which is the founding treaty of the ICC in 2002. As if their absence from the treaty was not enough, they went further to enact what is known as the American Service Members Protection Act, which has been described as the “Hague Invasion Act” due to its direct challenge to the international legal development. Such realities in the world where discourses of criminal and social justice are regarded as the future, inspires young aspiring legal researchers to focus on this area of study so as to uncover the underlying mayhem in the global legal system.
The ICC was established as a permanent independent institution to prosecute individuals accused of orchestrating serious crimes of international concern including genocide, crimes against humanity and war crimes. The Rome statute, which came into force on July 1, 2002, is explicit on the role of the Court in exercising a criminal jurisdiction over perpetrators of these crimes. The ICC system, which includes prosecutors and judges, has consistently reiterated that it does not engage in the “politics of the country perpetrators originates from and that it is a judicial institution”. Yet, in reality, the ICC has, in fact, entered the political fray.
The establishment of the ICC was uniquely a powerful idea given the history of violence that has punctuated human history. The intention was to fairly prosecute individuals for the “most serious crimes of international concern”. However, the first decade and a half of the ICC’s existence witnessed instead a biased approach of prosecuting individuals accused of perpetrating war crimes. In this initial period of the Court’s existence, Africa was the only continent from which individuals received ICC rulings.
The ICC claims to be fighting impunity, yet in reality it has afforded de facto immunity to several abusers of human rights who happen to be friends of the EU and the USA, like the State of Israel and have granted de-Jure immunity to non-member states such as USA.
This suggests that the ICC was being deployed as a political tool by global powers, through the manipulation of the United Nations Security Council (UNSC) and its permanent member States (USA, France, United Kingdom, Russia and China), as an instrument to discipline, punish, control and dominate those individuals who they deemed to be aligned against them. In fact, the ICC became an instrument for perpetuating “judicial imperialism” at the global level in order to discipline, punish, control and dominate political and military opponents. At national level, a number of African leaders also instrumentalised the ICC as a tool to marginalise and dominate their political opponents
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This research suggests that while the establishment of the ICC was a noble step forward for humanity, as far as the pursuit of human dignity is concerned, it was only part of an incomplete global project to redefine the governance of the planet. Why does the Security Council have special prosecutorial rights granted by the ICC?. Surely, the ICC is one of the nastier manifestations of globalisation.
In 2002, the same year the ICC was established, the United States Congress passed the American Service Members Protection Act (ASPA), also known as The Hague Invasion Act, which gave the US President the power to “use all means appropriate and necessary to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. In theory, this US law can be invoked to rescue US personnel from their docket in The Hague. This explains why the ICC has avoided acting against the wars of aggression wedged by the Westerners and theirs allies.
This US law is still on the statutes of its judicial system. Even though the US has not acted on this law, it is not beyond the realm of imagination for a narcissistic, erratic and power-mongering President in the White House to issue such an order to invade the headquarters of the ICC to rescue their personnel who are deemed to be above the reach of international criminal law.
Furthermore, when questioned about the remit of the International Criminal Tribunal for Yugoslavia, the late Robin Cook, a former British Foreign Affairs Secretary, in the Labour Party government stated flippantly that: “If I may say so, this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.”
While legal analysts assess the ICC system through a legal lens, this research utilises a political prism to examine the instrumentalisation of international criminal justice by both global and local actors. Even though the ICC system prefers to assert the fact that it only intervenes on the basis of legal criteria, the Court is, in fact, is a tool for coercion, control, manipulation and dominion in the hands of both global hegemonic actors and national politicians. Global hegemonic actors and national politicians have politicised the court in order to pursue their own self-interests of targeting enemies and protecting cronies.
In 2011, following the violent overthrow of the authoritarian leader of Libya, the late Muammar Gaddafi, the North Atlantic Treaty Organisation (Nato), led an indiscriminate bombing campaign in which the lives of ordinary Libyans were lost. These indiscriminate carpet bombings of human beings going about their daily lives reveal the failure of the international criminal justice system and the global governance architecture as it currently stands. There has been no prosecution of US, French, British or Nato officials and personnel, because of their self-proclaimed assertion to determine who the referents of “justice” are and thus also determine the fate of the “wretched of the earth” who will be denied any form of redress and accountability.
The lawyers, judges and legal analysts who intentionally ignore these glaring global injustices are also serving as agents of judicial imperialism, by falsely believing that they have a vested interest in sustaining this system, although it is perpetuating global inequality and undermining a basic principle of equality before the law. This research argues that the noble intention that underpinned the establishment of the ICC was gradually undermined by the politicisation of the referral of cases by the UN Security Council, and Heads of State, as well as the selection of cases by the office of the prosecutor, under its first incumbent Luis Moreno-Ocampo.
Finally, the reality of this so-called prestigious global institution is that it is a new form of imperialism that seeks to undermine people from poor and African countries and other powerless countries in terms of economic development and political development. Never ever was it created for the purpose of bringing balanced justice to the global village, but to extend and feed the neo-colonial appetite of our erstwhile colonisers. The institution is regarded as the global pinnacle of international justice, yet it only represents less than a third of the global population of which USA, China, Russia, India and Indonesia are just some of the many countries that are not signatories to it.
Moses Maphosa Nyakatangure is a freelance journalist. He writes here in his personal capacity.
