Who the International Criminal Court Is Really Created for?

By IndepthAfrica
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Apr 17th, 2012
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Alexander MEZYAEV
Not long ago the International Criminal Court (ICC) handed down a noteworthy ruling. Formally it was related to two African states – Malawi and Chad visited by president of Sudan Omar al-Bashir. Their fault was not so much receiving him but rather not putting him under arrest. The warrant was issued by the ICC back in 2009. According to the ICC Statute all states are to cooperate with the Court. A refusal to arrest president of Sudan Omar al-Bashir became a substantiation for making responsible the states that appear to have no relation to it. The decision exposes the real essence of the ICC as an instrument of global hegemony reflected in grandiloquent legal form. It has at least two reasons.

Let’s start with a few words concerning the first one. It lies on the surface. The gist of it is that the ICC tries to establish a system of total control over all states that are signatories to the Statute. Any state that doesn’t cooperate with the ICC is to be punished. As I see it, the ICC goes far beyond international law and even its own Statute. The matter is a demand to arrest a head of a neighboring state and “cooperation” with the ICC are not identical notions.

And at that, not all states refusing to cooperate with the Court are punished. Just a few days after Malawi and Chad were publicly flogged the president of Sudan visited Libya. The reaction was quite different. The Court did not take measures against Libya, moreover it pretended not to notice the event. The Libyan authorities had not been told to arrest al-Bashir before the visit and no steps against them were taken afterwards. So why this gap in attitudes towards different countries displayed by the International Criminal Court? The reason is that al-Bashir took an active part in the Gaggafi’s overthrow. And it raises a question, if the price for it wasn’t his own safety in relation to the ICC…

It’s noteworthy that some countries are allowed not to comply with the ICC decisions, for instance France. A few weeks ago Florance Hartmann, former spokesperson press-secretary for the International Criminal Tribunal for former Yugoslavia (ICTY), who is a citizen of France, received a seven years prison sentence from the Tribunal (for disclosing classified information related to the case of S. Milosevic). France refused to comply with the Court’s order. The French authorities said the obligation to cooperate with the Court encompasses only the cases where military criminals are involved. F. Hartmann had no relation to war crimes. The Tribunal was bashfully silent.

Now about the second reason behind the Court’s ruling on Malawi and Chad. It’s something international courts often resort to it. The idea is simple: a decision appears to be taken for something quite different from the real objectives. It is possible due to Anglo-Saxon control over the international courts and their perception of legal precedent and lawmaking by courts. The approach is welcomed by judges coming from other legal systems as it is comfortably suitable for pushing through the needed rulings. The Anglo-American legal system considers a legal precedent as a core legal pillar, but who has given a permission to spread this concept on international courts? The very “international” courts have. How does it function? Here’s an example. In 2005 the case against Slobodan Milosevic didn’t go anywhere in court, including the main accusation of genocide. According to international law a person can be held responsible for genocide in case special intent was evident. In other words one cannot commit an act of genocide at random, or just being not careful enough or even having an indirect intent. But Milosevic had to be held responsible exactly for genocide no matter the intent was not proven. That’s where a ‘legal precedent” helped. The one invented for someone’s own purposes! In a minor case of Radoslav Brdjanin, a former city mayor, a guilty verdict was handed down. It stated it was not necessary to establish the fact of special intent in case of genocide accusation. That’s all! No Genocide Convention is to lay down the law for the Tribunal now! The only thing that’s left to do is to refer to”a precedent taken place previously”! Bold enough, but no way the ICTY’s decisions hold water!

That’s the policy chosen by the ITCY towards the two African states. Formally the court decision is taken on Malawi and Chad, but it can also be taken against any country that is not a signatory to Statute. Russia, for instance! That’s what the second reasoning confirms. It’s just one line that is a clue to getting it right. Here it is: “The Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes”. To support this “very advanced” decision the ICC resorted to the well known paragraph 61 of the UN International Court decision concerning the “Arrest Warrant of the Democratic Republic of Congo”: “Official capacity as head of state shall in no case exempt from criminal responsibility in international tribunals”. To put it mildly the quotation is not precise. In reality the UN International Court stated:” «…an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction» (1).

Feel the difference as they say! The purpose of omitting the words “where they have jurisdiction” is clear too. The matter is the International Criminal Court has no jurisdiction over al-Bashir because Sudan is not a party to it. The transfer of the Sudan case from the UN Security Council to the ICC has no legal implications for Sudan, because this right of the Security Council is not specified in the UN Charter (that Sudan is a party to) but in the very same International Court’s Statute (that Sudan is not a party to). A simple conclusion shows the absurdity of the International Court’s assertion. If a head of state is not immune to any international court then, for instance, Nauru, Fiji, Vanuatu and the Federal States of Micronesia can create an international tribunal and bring to justice the president of Russia, or the chairman of the People’s Republic of China, or even the president of the USA himself!..

The main question is not why the International Criminal Court omitted such important words while quoting UN International Court’s decisions but rather what makes it think it can get away with such an evident falsification? Could the judges take responsibility upon themselves for changing the international law norms and doing it so blatantly, or did they carry out somebody’s direct instructions?

Who is the International Criminal Court is really created for? …We were told it’s for punishing main international criminals and the participation is exclusively voluntary… But as time goes by we can see the Court has been becoming an instrument in the hands of the leading world crime perpetrators and its jurisdiction is aimed at those who are not even parties to the treaty that established it. The recent years have seen the rise of legal activism concept and aggressive pushing through one’s own rules under the disguise of “customary international law”. Taking it into account Russia should clearly and unambiguously state its international legal stance. It will not allow the international legal activists-provocateurs say afterwards that no objections on the part of states is “a confirmation of establishing a new norm of customary international law”. The mentioned above pushing is practiced forcefully and openly: the International Criminal Courts pre-trial chamber said that the Malawi and Chad case proved: ”international persecution of heads of states has become widely recognized as accepted practice”. As one of the Russian literature classics said if there is a gun hanging on the wall in the first act, it will certainly fire at the end of the play. So, the gun is already hanging on the wall of international stage. The targets are defined clearly enough – the countries that are not parties to the International Criminal Court. Is the only thing that is left for us to do is wait for the time when the trigger is pulled?..

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1) Literally: «…an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction». The UN International Court lists examples of cases mentioning the ICC. But it’s not the ICC decisions in general that are in question, but the concrete cases under its jurisdiction. The UN International Court sets as examples the cases handed by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. We find it wrong. The UN Security Council (that has created the tribunals in question) has no authority to cancel the norms of customary international law. The full text of the UN International Court’s decision, ref. http://www.icj-cij.org/docket/files/121/8126.pdf. The commentary on the UN International Court’s decision, ref. A.B. Mezyaev., Arrest Warrant Case (the Democratic republic of Congo against Belgium).// Russian International Law Manual – 2003, Saint-Petersburg-2003, p.84-99.

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