The doyen of international jurists, Georg Schwarzenberger, writing in the wake of the Nuremberg and Tokyo military tribunals, observed that international lawyers suffered from a “professional disease against which other members of the legal profession are remarkably immune”: an overzealous legal evangelism that failed to distinguish between commendable values and existing realities.
The most mistaken lawyers, he observed, were those who believe in the existence of an “international criminal law.”
H. L. A. Hart, whose contribution to analytical jurisprudence shaped the landscape of legal philosophy in the Anglo-American sphere and beyond, also believed international law to be problematic inasmuch as its ill-defined nature means that it does not have all the elements of a fully developed judicial system, especially with regard to procedural safeguards that ensure the due process of law.
The International Criminal Court in The Hague, established by the 1998 Rome Statute and which opened its doors in 2002, was nevertheless the product of a tide of legal evangelism that marked the 1990s.
Public international law scholar Professor Christine Schwöbel observed: “The branding of [international criminal law] is one of a discipline fighting impunity, a beacon of global justice, and the heroic few internationalists who dare to fight big power-players.”
Many saw the court, charged with prosecuting individuals for genocide, crimes against humanity, war crimes and the supreme crime of aggression if and when its member states were unwilling or unable to do so, as the shining apex of international justice and adjunct of global liberal governance. The ICC has been projected as “speaking in the name of” the international community and taking action on behalf of victims of injustice and impunity, victims of the most serious of crimes “for the sake of humanity.”
Amnesty International, for example, has referred to the court as “prosecuting crimes in the name of international justice,” a glittering legal citadel.
The legitimacy of any court lives or dies on its independence and the impartial selection of the cases that appear before it. Accusations of “victor’s justice” and the retroactive criminalization of aggression had dogged the post-war Nuremberg tribunal.
Subsequent international criminal courts have been in the spotlight over certain cases they select. This concern was said to have been addressed in the Rome Statute through the creation of an independent prosecutor. Article 15 (1) of the Statute provides that “the prosecutor may initiate investigations proprio motu [at his or her own discretion] on the basis of information on crimes within the jurisdiction of the court,” as opposed to opening an investigation following a formal referral by an ICC member state (Article 14 of the Statute) or by the U.N. Security Council (Article 13 (b) of the Statute).
The reality is that regardless of how robust the statute’s procedural safeguards may or may not be on paper, they are all for naught if the structure in place is in the hands of questionable prosecutors with a political agenda and/or, to be generous, a questionable grasp of judicial procedures. This is further exacerbated if the checks and balances one would normally expect to be in play on the bench are absent because of questionable judges with little or no real judicial expertise or courtroom experience, themselves the result of vetting by unaccountable non-governmental organizations and approved by corrupt vote-trading.
Far from a shining example of judicial brilliance, the court has had prosecutors who appear to be unaware of the inconvenient concept of the presumption of innocence and willing to hide exculpatory evidence from both judges and the defense in trials described by the pro-ICC Economist as “bumbling,” “chaotic” and “near-farcical,” and by legal bloggers as “slapstick comedy.”
Prominent legal blogger and ICC enthusiast Professor Mark Kersten has observed that far from being independent, “The court demonstrated a bias towards both major Western powers as well as despots.” He has further noted that “a string of controversies and unnecessary failures always seemed to follow the ICC … Staff were wrongfully dismissed. Cases collapsed under weak evidence.” One of the ICC’s godfathers, legal scholar Professor William Schabas, even placed on record that the ICC has convicted people of crimes they never committed.
The ICC has well and truly fallen short of the claims made on its behalf. The result has been a fatally flawed court that has paid ineffectual lip service to the crime of aggression; prolonged conflict rather than deterred it; entrenched impunity for despots and its own European funders; afforded immunity to powerful states and funders; and, in serving as an instrument of European foreign policy, has engaged in racial profiling of black Africans on a continental scale.
It is a court that has flouted cornerstones of customary international law, such as the 1961 Vienna Convention on Diplomatic Relations regarding immunity for Heads-of-State and the 1969 Vienna Convention on the Law of Treaties. Politicized ICC rulings have been dismissed by leading international law scholars, including Britain’s International Court of Justice candidate Professor Dapo Akande, as “extremely controversial,” “inconsistent,” “stunning,” “deeply misguided,” “very dangerous and unwise,” and “very poorly reasoned.”
When did it start to go wrong? The answer is from the very beginning.
Schabas, a key participant observer in the creation of the ICC, also candidly admitted that “[t]he final version of the Rome Statute [establishing the ICC] is not without serious flaws.”
These are the last words one would wish to hear about a body presented as a shining legal Camelot. Here we have the irreparable hole in the heart of the ICC since its establishment in 2002. The combination of legal evangelism, a seriously flawed statute and lackluster jurists has been fatal to this vision of international justice.
