By Thomas Verfuss
There is growing frustration with the string of controversies at the International Criminal Court (ICC) in The Hague. “The judges themselves are killing the Court,” says the ambassador of an African country who has always been very supportive of the idea of an independent, impartial, fair and efficient ICC. This is one of the many voices of frustration in the corps diplomatique at The Hague over the accumulation of a series of events that could tarnish the court’s reputation and undermine support for it.
The acquittals of high-level suspects Jean-Pierre Bemba and Laurent Gbagbo set off series of events that have disturbed many supporters of the ICC. Disappointing as they may be for victims of crimes that were indeed committed, the acquittals could still be explained as a normal and natural part of a judicial process that emphasises a fair trial and evidence beyond reasonable doubt as a precondition for a conviction. It is more difficult to understand why the ICC president and five other judges are suing their own court, arguing that their about 15,000 euros tax free salary per month, plus benefits, is not enough. Meanwhile, the same court awarded 250 dollars per person of reparations to the victims of the Bogoro massacre in which some 200 civilians were killed in the Democratic Republic of Congo.
Bemba’s filing seeking 68 million euros as compensation for losses he incurred when the court held his assets, and for the years spent in detention before his acquittal by the appeals chamber in 2018, has put the ICC under a harsh spotlight. It defies the most basic principles of due care and good governance that the registry of the ICC let one of Bemba’s planes rot on a Portuguese tarmac. The former Congolese vice-president’s frozen assets would have served to pay reparations for the victims in the Central African Republic if the appeals chamber had confirmed Bemba’s conviction. Instead of possibly serving the victims, according to defence submissions, the plane has been reduced to scrap and even accumulated debts from parking fees. One African diplomat posed: are our taxpayers going to pay for this?
Additionally, the Japanese judge Kuniko Ozaki wanted to work part-time only on the Ntaganda case in order to become ambassador of Japan to Estonia at the same time. There is no judgement in this case yet, while hearings closed on August 30, 2018 and Ntaganda is entitled to an expeditious trial. Ozaki threatened her colleagues to leave altogether if her request to work part-time was not granted – thus causing the embarrassing, costly and time-consuming prospect of a retrial. The development is perceived as a lack of commitment and loyalty to the court by the judge; and Japan; and Estonia, both states parties to Rome Statute. The ambassador of a European country that is very supportive of international criminal justice told Journalists For Justice that the issue should and was scheduled to be raised with Estonia in Brussels, in the COJUR forum where EU states discuss international law matters. After weeks of controversy, the presidency of the ICC announced on May 1 that Judge Ozaki had resigned from her ambassadorial post.The latest mishap at the ICC – the pre-trial judges’ refusal to authorize an investigation into Afghanistan, where for the first time the suspects in the dock might have been non-Africans – is especially bitter and emotional for African diplomats and lawyers who have always defended the ICC against allegations of neo-colonial and anti-African bias.
The refusal raised some observers’ mood to boiling point. In this situation where Americans might end up in the ICC dock for the first time, the judges did not even give the prosecutor the chance to try and investigate and prosecute. It makes the ICC look like it backs down under pressure from high US officials like National Security Advisor John Bolton and Secretary of State Michael Pompeo.
The appearance of the judges buckling under US pressure has irritated especially those African observers who have always defended the court against allegations of neo-colonial, anti-African bias. “This is really outrageous”, one African ambassador messaged around to friends. “I am very afraid that there is actually not much we can do any more with such [an] onslaught on international criminal justice. The judges themselves are killing the Court.”
Commenting on the reasoning of the decision (no permission to investigate because chances of success are too small) the ambassador added: “Giving in to bullying by the USA? How on earth can this be the case? Such a judgment would also apply to the cases Sudan, Burundi, Philippines, especially Palestine, and others where the Court has no cooperation. What happens to the so-called independence of the Court? To the victims of these crimes? To me this signals slow death of this Court. It shows that justice by the ICC is only for poor Africans but not for others!!! I have always been optimistic but this time the judges are surely signing their own death penalty.”
States have been bitterly divided in the past over the ICC, with a section of Africa pitted against Europe and the West over the suspension of the Sudan investigation and the Omar el Bashir warrant of arrest. Similar divisions were apparent when Kenya’s president and deputy president, Uhuru Kenyatta and William Ruto, demanded “special rights” at the court. The controversy consumed lots of meeting hours at the ASP, the legislative and managerial oversight body of the ICC that can change the rules of procedure (and did so to accommodate Kenya’s wishes). Now, diplomats from many different countries — both in Africa and Europe who wish the court well are concerned about what has happened and about the institution’s future.
Unlike in the past when the ICC has been caught in the crosshairs of controversy, there is no division about the need for action. Concerned about the future of the ICC, one African ambassador to The Hague has launched the idea of a retreat of the Bureau of the ASP – a group of elected representatives who manage and plan the annual assembly of states that have signed and ratified or acceded to the Rome Statute — “to discuss what is going wrong and what we need to do to mitigate the negative press and reputation of the ICC”. The idea was unanimously accepted.
The Netherlands, which hosts the ICC, has offered to fund the retreat, a type of events which here often takes the form of a “bosdag” (people who usually see each other in stiffer meeting settings book a day or two in a villa somewhere in the countryside to come together in a more casual, informal atmosphere and draw inspiration from the surroundings like forests – hence the term “bosdag”, literally “forest day”).
“We shall remain actively involved in the process of looking for improvements to the system,” said another diplomat of a European state.“Some of these steps and decisions are a missed opportunity,” a European diplomat acknowledged analyzing the situation which has arisen.
Sovereign equality of independent states is a basic principle of international relations and international law, but it seems that some states can be more equal than others when they have more bullying power or money. Some diplomats wonder if the fact that Japan and the Japanese are treated with more leniency than others is because Japan is the biggest contributor to the ICC budget. Earlier, Japan got something done which no other state ever succeeded in doing: it got a non-lawyer elected as a judge of the ICC. Some diplomats, who had to participate in the process, say how uncomfortable they still are with this.
One African diplomat fears Japan could threaten to stop paying its assessed contribution to the ICC if the government in Tokyo does not get its will, recalling the “Bustani crisis” at the Organisation for the Prohibition of Chemical Weapons (OPCW) which, like the ICC, is headquartered in The Hague. At the time in 2002 the US bullied the other member states into firing the OPCW’s first director-general José Maurício Bustani not long after they had unanimously confirmed his appointment for a second term. Officially, the US had suddenly discovered instances of mismanagement by Bustani. But critical observers and officials, especially in Bustani’s home country Brazil, noted that the US did not want Bustani to pursue his efforts to convince Iraq to join the OPCW. In that case, inspectors of the OPCW would have travelled to the Arab country, then still governed by Saddam Hussein, and would have certified that he had no chemical weapons. In the OPCW, where all countries have equal rights and nobody has a veto in the Executive Council, the US could not have blocked the publication of such a finding. If weapons inspections continued to be carried out by the UN only, the US could steer the process more as they have a veto in the Security Council, the critics argued.
African countries argued at the time that the OPCW members should remain faithful to the expression of trust they had recently given to Bustani. But European countries, who would have had to pay a larger share to fill the gap of withheld American contributions, refused the sacrifice of the extra expenses. During a late night meeting, the member states decided to fire Bustani. During a break of that meeting around 2 am, an African ambassador was seen arguing with and shouting at a European ambassador, but to no avail.
One year later, the US invaded Iraq. No chemical weapons were found. It was Bustani’s duty to lobby for Iraq’s membership, since the OPCW, like the ICC, pursues “universality” as the ultimate objective: all countries in the world must join in order to make the system work well.
“Everybody knew there weren’t any [more],” Bustani told The New York Times. “An inspection would make it obvious there were no weapons to destroy. This would completely nullify the decision to invade.”
In a reaction to the Afghanistan decision and apparently motivated by the fear that an ICC organ might bow to pressure from a powerful state like the US or Israel in the future, the State of Palestine has asked for a special session of the ASP. Such an emergency session, which has never been held before, could send a strong signal of support, but might also further antagonize the US. The request also raises practical questions like costs and availability of meeting rooms. The Bureau is scheduled to discuss the matter in the second week of May. Some seem to be happy to be able to avoid the hot potato. “The Bureau must deal with the matter, and we are not in the Bureau now”, a European diplomat says.