The court where the West judges the Rest
The ICC metes out ‘justice’ to poor countries while denying them any say in their own affairs.
Throughout the war-crimes trial of Liberia’s ex-president, Charles Taylor, lead defence lawyer Courtenay Griffiths, a British barrister, has frequently drawn attention to the flagrant, racially-tinged double standards at work. Last Thursday - the penultimate day of the three-year-long trial - was no different.
‘[Taylor’s] trial has been trumpeted by the prosecution as demonstrating an end to impunity. We agree. Indeed, his trial is of importance to Africa and this evolving concept of international justice to which we are, as a defence, unswervingly committed’, Griffiths said, inoffensively enough. And then the jab: ‘Yet we note that currently everyone being tried or awaiting trial at the International Criminal Court [ICC] are from guess where? Africa. We are disturbed by this.’
Strictly speaking, Taylor, whose fate will be revealed in the summer, was not being tried at the ICC. In fact, because he was accused of controlling and arming the Revolutionary United Front in the brutal 10-year civil war in Sierra Leone which ended in 2001, the UN decided that he ought to stand trial at a special international court in Sierra Leone itself - presumably so the natives could see how justice ought to be done. Since this was deemed a little risky, the UN then relented and moved the trial to The Hague in 2006, where the ICC also has its home. That Taylor is not actually standing trial at the ICC, however, should not detract from Griffiths’ point about the ICC and international law in general: it does seem more than a little inclined to focus almost all its energies on what old-fashioned colonialists might once have called the Dark Continent.
Just take a look at the five countries to have been subject to the ICC’s justice since it was formally established in 2002: Sudan, Uganda, the Central African Republic, the Democratic Republic of Congo and Kenya. You don’t have to be a keen student of international relations to spot the common theme. It’s not as if there has been a shortage of bloody conflict elsewhere, each one as rife with injustice and brutality as the next. Yet the US-led-UK-in-tow invasions of first Afghanistan and then Iraq, for instance, in which thousands of people have been killed, have not once featured on the ICC’s radar. Of course, what looks like unabashed favouritism is not without a legal justification: apparently, the ‘crime of aggression’, of which Bush, Blair and Co, might well be guilty, will not fall under the ICC’s jurisdiction until 2017.
Not that such pettifoggery is likely to assuage Griffiths and those like him who believe that the African focus of war-crimes trials, whether at the ICC or at its de facto equivalents, ‘besmirch the lofty ideals of international criminal law’ with the residue of ‘neocolonialism’. And therein lies the problem with Griffiths’ criticism of the ICC and courts like it: It’s as if there is nothing wrong with international courts that a bit of racial equality couldn’t put right.
Yet not only is there something wrong with the ICC, it can’t simply be corrected by being a bit less racist. Rather, it is a fundamentally flawed institution. That the objects of its justice tend to be from over there, rather than from round here, is no accident.
In 2000, then UK foreign secretary Robin Cook infamously said that the ICC was ‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States’. He was right. The US refused to sign up to the ICC, and sought to exempt its personnel from overseas prosecution up until 2004. And the UK, while being a signatory to the ICC, has no intention of giving up Tony Blair to the ICC, despite the anti-war movement’s tireless insistence that he should stand trial for war crimes. Moreover, the ICC, as David Chandler noted on spiked, is reliant on the West for goodwill and resources. As the ICC’s chief prosecutor, Luis Moreno-Ocampo, explained in 2004, ‘we have no government, no police’. All that the ICC has, from its home at The Hague to its retinue of superstar lawyers, comes from the developed world. Little wonder it doesn’t bother with ‘prime ministers of the United Kingdom or presidents of the United States’.
But it goes deeper than that. The assumption underlying the ICC and similar courts is that certain countries, certain people, are incapable of taking care of their own affairs. We in the UK or the US might be civilised enough to deal with the bad people in our midst, but those in places like Kenya or Sudan are not. That’s why people like Charles Taylor or President Omar al-Bashir of Sudan, once they’ve done their wicked deeds, are extracted from their people’s clutches and parachuted into The Hague where they can then exhibit their native savagery in an expensive showtrial.
In this, the ICC and its ilk undermine any self-governing impulse. People’s sovereignty over their own lives, their capacity to forge their own society, is denied by the ICC. Such courts are not simply enforcing the rule of law, they’re enforcing the rule of law from afar. As Philip Hammond has written before on spiked, this means that there is no political framework in which this semi-free floating legislature is rendered accountable to the people in whose distant name it adjudicates – at least not in those countries such as the Democratic Republic of Congo or Kenya that are deemed too immature to deal with their own affairs. Political struggle in these regions, the clash of different interests and ideas, is trumped by international law. And the actual substance of the conflicts and struggles, divorced from the people involved, becomes a mere play thing for lawyers to judge and rule upon.
Little wonder it serves the egos of Western lawyers, such as the indomitable Geoffrey Robertson, so well. They are doing good, at least in their own eyes, because they are bringing very bad men to book. While justice in the UK may sometimes look a bit drab, composed all too often in shades of grey, over there in Africa, where machete-wielding militias rape and pillage, it’s so wonderfully black-and-white – often literally so, it seems. It is not only the egos of big-shot lawyers that are massaged, of course. The governments of ICC signatories like UK or Canada can demonstrate the virtue, the moral coherence that their domestic political situations deny. That Charles Taylor is set to serve whatever sentence he receives, not in Sierra Leone, but in the UK, says it all.
So, as the focus of the global do-gooders zeroes in on the lighter skin of Libya’s Colonel Gaddafi, we need to remember that his fate should not be decided by anyone else but the Libyans themselves. To have it any other way would mean that their struggle for freedom would be strangled at birth by meddling Westerners. If there is to be any justice to be meted out to a tyrant like Gaddafi, it should not be the ICC manning the guillotine.
Tim Black is senior writer at spiked.