“To this war of every man against every
man, this also in consequent; that nothing can be unjust. The notions of right
and wrong, justice and injustice have there no place. Where there is no common
power, there is no law, where no law, no injustice. Force, and fraud, are in
war the cardinal virtues.”
Thomas Hobbes, Leviathan
Alphen,
Netherlands. 16 June. Much of the past week I have spent reading the copious
amounts of literature kindly furnished me by Judge Marc Perrin de Brichambaud
of the International Criminal Court (ICC) in The Hague. It was my distinct
honour to be the guest of the Judge last week on a visit to the futuristic court
building. It was fascinating, although I was somewhat thwarted in my desire to
witness the ICC in action by the two trials in process both hearing closed
evidence. My talents such as they are concern geopolitics and power politics,
not law. However, driving away from the ICC I could not but help think that the
ICC is in fact at the very cutting edge of geopolitics. Indeed, it is a noble
effort to instil some level of principle into power, and in so doing prevent
the inevitable impunity of Realpolitik.
The facts. The ICC
has a clear political role by overtly linking the serving of justice to the pursuit
of peace within the broad framework of the United Nations. The ICC tries
individuals charged with the gravest crimes: genocide, war crimes, and crimes
against humanity. In 2010 the founding Rome Statute was amended to include
aggression as a crime. However, for these amendments to become international
law they must be ratified by at least thirty states, which is as yet not the
case. The Court applies a form of international criminal justice that is an
amalgam of common law and the civil code.
On 17 July, 1998
one hundred and twenty states ratified the Rome Statute. On 1 July, 2002 the Statute took effect when
sixty states formally ratified the document. There are eighteen appointed
judges, served by some eight hundred staff from over one hundred countries,
with a 2016 budget of €139.5 million. In other words, by the standards of
international institutions the ICC is a small organisation.
There are six
official languages, but the two working languages are English and French. Thus
far twenty-three cases have been before the court and twenty-nine arrest
warrants have been issued against twenty-seven suspects. Eight people have been
detained in the ICC detention centre, thirteen suspects remain at large, whilst
three cases have been dropped due to the deaths the suspects. In addition to
the futuristic court building in The Hague the ICC also has six field offices
in Kinshasa and Bunia in the Democratic Republic of Congo, Kampala in Uganda,
Bangui in the Central African Republic, Nairobi in Kenya, and Abidjan in the
Ivory Coast.
My judgement? In
theory the ICC is a vital step on the road to a world in which impunity is
accepted as unacceptable. However, look at the number of cases and from where
most of them come, and then look at which states have not as yet ratified the
Rome Statute, or not even signed it. The majority of defendants come from
Sub-Saharan African states. On first appearance some might suggest the ICC
functions as an instrument of latter-day imperialism. That is not the case. Quite
simply, not a few leaders of African states have accepted the jurisdiction of
the ICC simply to remove political opponents. Still,
too many of the defendants are black Africans.
Now, look at
which states have not acceded to the Statute or refused to ratify it, of which
there are some seventy-three. The list includes China, India, Russia, North
Korea…and the United States. The US claims to have concerns about how the ICC
might affect its deployed armed forces. However, American political objections
run deeper; for Washington international institutions such as the ICC have
always been for ‘lesser’ states, i.e. everyone else. China and Russia, and to a
lesser extent India, seem to regard the ICC as counter to a world view that can
at best be described as twenty-first century Machtpolitik. North Korea? No comment. Even Britain and France, two
of the main sponsors of the ICC on the United Nations Security Council, and two
of the architects of an institutional community concept of international
relations (Brexit???) keep their distance.
In a sense the
ICC is one of those strategic bell-weathers, the fate of which indicates the
health or otherwise of the global order. If the ICC prospers and is adopted and
accepted over time by all powers then it would indeed suggest a world order
embedded in functioning institutions and established on shared and universal
principles of conduct and precept. If the ICC fails, and it could, the world
will look much like it did to Thucydides in the fifth century BC, "We hope that
you, instead of thinking to influence us by saying that you did not join the Lacedaemonians, although their colonists,
or that you have done us no wrong, will aim at what is feasible, holding in
view the real sentiments of us both; since you know as well as we do that right, as the world goes, is only in question between equals in power,
while the strong do what they can and the weak suffer what they must."
My thanks again to
Judge Perrin de Brichambaut and I very much hope I can return to the ICC to see
and this time hear the Court in action.
Julian Lindley-French
