ICCwatch exists to monitor and provide a critique of the International Criminal Court and the broader movement towards transnational governance.

The experience of the International Criminal Tribunal for Yugoslavia (ICTY), together with its Rwandan counterpart (ICTR), have left many real advocates of human rights, democracy and international peace extremely anxious concerning the activities of
the ICC.

ICCwatch will also concern itself with the record and activities of the ICTY and the ICTR as they are part and parcel of the same supranationalist phenomenon.

In an era in which the capacity for democratic accountability is being steadily eroded by the emergence of unelected supranational institutions and the desire of the political class to avoid transparency and accountability, it is right and healthy that an institution such as the ICC should have a searchlight directed towards it.

The ICC is a body that has been set up unilaterally by a group of nations and is not answerable to any elected parliament or higher authority. It is a law unto itself and the western powers that have brought it into being.

In keeping with the politics of transnationalism, the officials of the ICC will enjoy immunity from prosecution, even if evidence can be produced showing that they have violated the rights of defendants and deliberately corrupted the course of justice.

The ICC prosecutor, Luis Moreno-Ocampo, has already been shown in the case of the Congolese military leader, Thomas Lubanga, to have withheld from the defence information given to him by the UN that exonerated the defendant. Nevertheless, Lubango remains in custody and Moreno-Ocampo is still in office issuing new indictments.

The ICC does not, as its supporters claim, represent the 'international community'. It has no legal, moral or political mandate to pursue its various highly selective campaigns against individuals and, potentially, entire governments, anywhere in the World, including those from nations that not do accept its jurisdiction and legitimacy.

This new court stands in marked contrast and poses a direct ideological threat to the International Court of Justice (ICJ), the high court of the United Nations. This was established in 1946 and exists to adjudicate in a non-coercive way when there are disputes between states.

It seeks to uphold the traditional UN principle of respect for the autonomy of independent nations and in so doing to work for World peace. In marked contrast to the ICC and its sister courts, the ICJ, for example, has ruled as invalid an arrest warrant issued by Belgium for a former government minister from the Congo. The ICJ disputed that Belgium, or any collection of nations, could claim jurisdiction over the terrorities of other sovereign nations.

The ICC does not consider the waging of aggressive war to be a crime and has therefore rejected demands that American and British political leaders be prosecuted for the illegal military attacks against Yugoslavia and Iraq.

The ICC thus represents a major threat to the true, established international rule of law as well as to real 'human rights'.

FOUR REASONS TO OPPOSE THE ICC

There are four main reasons why those who believe in respect for national autonomy, peace, democracy and justice should oppose the creation and work of the International Criminal Court:

First, the ICC, by claiming universal jurisdiction, under article 4.2 of the Rome Statute of 17 July 1998 that brought it into being, is complicit in the broader attack on the founding principles of the League of Nations and, its successor, the United Nations. This being, a commitment to respect the rights to autonomy of internationally recognised, sovereign nations, and, therefore, the enshrining of the principle of non-interference. This formed the basis of the Nuremberg Tribunal's indictment of the Nazi leaders following the Second World War: the supreme international crime of waging aggressive war.

Now, following the illegal Yugoslav and Iraq wars - wars that violated the UN Charter and the Nato treaty - we are entering a new anarchic era of World affairs in which self-selecting, powerful countries can choose on an ad-hoc basis to initiate attacks on independent countries, ignore the rules of the Geneva Convention when doing so, and attempt to capture and bring to trial foreign political leaders. The anti-fascist principles that were the foundation of the post-war international order have been reversed by the governments of Britain, America, France, Germany, among others.

The ICC, of course, cannot order the invasion of legally independent countries. However, through its selective indictments and rhetorical accusations of genocide and other crimes it can help provide the moral and legal cover for western militarily aggression.

Those most enthusiastic about the creation of the ICC are also those who tend to support the invasions of sovereign countries. The court in part exists to give a veneer of respectability to enforced regime change from above by western powers, in much the same way the ICTY through the trial of Slobodan Milosovic sought to provide the American and British governments with retrospective justifications for their illegal interventions in the former Yugoslavia. The ICC may well be deployed in a similar capacity in the future. The court is a key arm of the new political architecture of transnational governance and 'international vigilanteism' which threatens to create ongoing disorder and conflict.

Second, and closely related, the ICC is the unilateral creation of a particular group of countries. This is why it has no moral and legal mandate for its activities. When the issue of setting up the ICC was put before the General Assembly of the United Nations seven countries voted against the proposition. Half the countries of Africa have not signed the treaty. Ironically, the United States, together with China and India, has refused to become a member of the ICC despite having been an enthusiastic backer of the ICTY and ICTR.

Nevertheless, the countries that set up the ICC have given it the right to indict individuals in nations that have chosen not to sign up to the Rome Statute. 106 states have become Parties to the Statute. Sudan has opted to stay outside and yet the ICC's chief prosecutor, Luis Moreno-Ocampo, has asked the court to indict the president of that country, Omar Hassan al-Bashir. But by what authority does the ICC indict an internationally recognised head of state whose government refuses to even recognise the court?

The ICC is therefore vulnerable to the charge that in addition to assisting 'international vigilanteism' it is also promoting a neo-imperialism by which a body that is under the effective control of white, western governments can target Third World nations and their leaders.

The ICC has, so far, only pursued individuals from African countries and has ignored the numerous requests to indict George Bush, Tony Blair and other western leaders for authorising war crimes and other offences in Iraq and other conflicts. As the late British foreign secretary, Robin Cook, commented so revealingly about the ICC: '"This is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States". What can possibly be the moral justification for this?

Tony Blair's former senior diplomatic adviser, Robert Cooper, the official now responsible for establishing the army of the European Union, is overt in his belief that Europe must evolve into what he calls a 'post-modern Empire'. He believes that the countries that make up the EU and their allies outside of it, must "get used to the idea of double standards. Among ourselves, we operate on the basis of laws and open co-operative security. But when dealing with more old-fashioned kinds of states outside the postmodern continent of Europe, we need to revert to the rougher methods of an earlier era - force, pre-emptive attack, deception, whatever is necessary to deal with those who still live in the nineteenth century world… Among ourselves, we keep the law but when we are operating in the jungle, we must also use the laws of the jungle."

So, when dealing with Third World countries anything goes on the part of the 'post-modern' elite group of nations. It comes as no surprise that Robert Cooper is an enthusiast for the ICC: "The Conception of the International Criminal Court is a striking example of the postmodern breakdown of the distinction between domestic and foreign affairs". (The Observer, 7 April 2002).

This breaking down of the legal barriers that divide nations - and which, in the past, served to legally protect them from external interference - is precisely what is now happening and the establishment of a western court with universal powers of indictment fits in perfectly with this neo-imperialist strategy.

It is the contention of ICCwatch that the nation state is the only mode of political organisation that enables citizens to hold their rulers really responsible for their actions - even in the context of forms of government that are not liberal democratic. The very fact that a head of state and an executive arm of government claim ultimate authority within a national jurisdiction enables the people of that particular society to know who must carry final responsibility for specific courses of action (including acts of gross injustice). This is a necessary, if not sufficient, condition for a democratic, accountable system of government.

By contrast, the transnational political system that the ICC and its supporters are trying to establish threatens to return us to a pre-modern political system whereby there is no transparency, no clear end-of-the-line source of authority. This is why transnationalism should be characterised as neo-imperialism (or 'post-modern imperialism', to quote Robert Cooper).

With old style colonial rule, at least those subject to it were made aware about where the ultimate source of power in the society lay and who was politically responsible for doing what. With the new variety of external rule the western nations behind the ICC are keen to maintain the myth that they respect the autonomy of independent countries while in reality seeking to interfere in their internal affairs and enforce certain decisions and policies through the threat of sanctions of one type or another, or temporary occupation followed by the imposition of client governments made up of persons beholden and acceptable to the neo-imperialist powers.

Transnationalism, then, offers the prospect of governance without a clear, visible, single government. It will also be a system that is inherently, as well as implicitly, anti-democratic. The various supranational agencies that are to dictate the values and measures which will be imposed on citizens at the local level will, of course, not be any more accountable through the ballot box than dictatorships within nation states. However, these organisations will be considerably more difficult to remove from office given their geographical remoteness and the fact that their power will ultimately be backed by the huge military prowess of the particular alliance of nations that support them.

The peoples who are to be subject to this New World Order will never be given the option of giving their conscious consent to be ruled in this centralised and unaccountable way. The principal political legacy of the European Enlightenment was not only the right of the citizens to elect and dismiss their governments but also to define for themselves which political community they wanted identified with and wanted to be governed by. This formed the intellectual basis of the various anti-colonialist struggles in nineteenth century Europe and then, later, in Africa, the Middle East and other parts of the World in the twentieth century.

The idea that systems of government must be underpinned by populations who identify themselves with those political entities, that is to say national communities, is what is now under widepread attack for the first time since the late eighteenth century.

Simply because there are regimes considered to be an affront to 'humanitarian' and democratic values does not mean the solution is to create new, transnational power structures that are themselves morally imperfect and which contradict in practice the values they profess to advance.

Third, the procedures of the ICC will not be subject to control by a higher, democratic authority. In liberal nation states, elected parliaments oversee and pass into law the procedures and rules by which the judicial system must operate, as well as defining what are the crimes it must concern itself with. The ICC is able to not only determine for itself what constitutes a crime, what constitutes the necessary evidence to indict and convict defendants, but the procedures according to which the court shall operate. There will, of course, be no jurers chosen at random from the populations of the signatory nations, only judges appointed from within the ICC. Appeals will be heard, not by an another, separate court but by the ICC itself. It will thus be able to violate the basic principles of jurisprudence and civil liberties at will.

International tribunals conduct themselves in a way that would be unacceptable in any well established liberal democracy with properly established civil liberties. They hold entire sessions in secret and censor trial transcripts so as to prevent the outside World from knowing what has been said. Needless to say, this makes appeals very difficult for those convicted. Those charged and detained can be held for unrestrcted periods of time. Theoneste Bagosora from Rwanda was arrested in 1996 and it took over ten years for the prosecution to conclude its case. The trial is expected to last several more years. Thomas Lubanga from the Congo has been in custody since March 2006. Despite the fact that the ICC's Trial Chamber ordered his release in July 2008 because the court's chief prosecutor had failed under article 54 (1)(a) to disclose 'exculpatory materials' - that is to say, evidence that cleared him of the indictment - he has remained in custody and the trial is scheduled to take place in 2009. This is, needless to say, utterly incompatible with the principle of presumption of inncocence.

The ICTY consistently violated the basic rights of Slobodan Milosovic by doing deals with individuals who had either been charged themselves, or were threatened with prosecution unless they gave testimony helpful to the court. Some of these compromised individuals would then give hear-say testimonies, sometimes under the cloak of anonymity. At the Yugoslav tribunal a staggering forty percent of the witnesses have given their evidence anonymously. This makes effective cross-examination impossible. Defence lawyers at the Rwanda tribunal suspect that many of the anonymous witnesses called by the prosecution are paid liars, trained by the Rwandan government. Half way through the Milosovic trial, the prosecution, because it could not substantiate its change of waging genocidal crimes in Bosnia, suddenly added new charges relating to Kosovo.

In these international trials, if the prosecution cannot prove the charge that an indicted head of state specifically ordered a particular course of action - as it failed to do in the Milosovic trial - it can fall back on the vague doctrine of criminal liability. This is the presumption that by virtue of his or her political position, the defendant must have issued a particular order or should have known about the decision in question. No concrete proof is therefore required; the defendant is presumed guilty before the trial commences.

Most contentiously and alarmingly, the Rome Statute enables the prosecutor to pursue a charge of 'joint criminal enterprise'. This, of course, follows the catch-all, RICO charge developed in America designed to enable the authortities to go after persons who are associated with individuals who have carried out specific crimes but who have not actually carried out the specific crime being investigated themselves (or even had any knowledge of it). This will facilitate the task if indicting entire governments, as well potentially their law enforcement agencies and armies, and so provide the excuse for mass regime change.

International court officials are given immunity from prosecution relating to their activities legal. Even if evidence existed that a court official was perverting the course of justice in some way, whether for personal financial gain or out of political motivations, that person would not face justice. No action has been taken, for example, against ICC prosecutor Luis Moreno-Ocampo for having deliberately withheld information supplied by the UN that showed that Thomas Lubango from the Congo was innocent. Ocampo remains in office. Yet we are told the underlying principle of international justice is removing immunity from prosecution for political leaders.

The ICC will, regardless of its rhetorical assurances about the rights of defendants, follow in the same illegitimate footsteps as the other international tribunals.It will be able to make up and change the rules as it goes along like the ICTY. Again, this new international system of justice is reminiscent of the pre-modern feudal world in which the application of the law and court procedures were totally unpredictable and heavily weighted against the accused.

The ICC claims to be acting in defence of 'universal human rights', yet this concept is extremely vague and the subject of considerable philosophical differences of interpretation. Even if it is accepted - which it is not by ICCwatch - that it is legitimate to seek to impose 'human rights' across the World regardless of local political customs and wishes, the ICC has failed to define what it means precisely in this regard. Not surprisingly, many of the broad ranging crimes it states it wishes to concern itself with are ill-defined and provide the potential option of indiciting vast numbers of people. For example, article 6.b of the Rome Statute, concerning genocide, asserts that 'Causing serious bodily or mental harm to members of the group' constitutes an offence. How will 'mental harm' be measured in this context and what are the existential boundaries of the relevant 'groups' to be? These terms are not defined and explained.

Another problem associated with the ICC's total lack of democratic accountability is that over time it could independently expand its already very elastic definition of human rights and what constitutes a breach of them by national governments. It is not too fanciful to envisage a situation within a few years time whereby the failure of a state to spend a certain percentage of its budget on education or health services, or its refusal to introduce 'positive descrimination' measures concerning particular groups, could be construed as a violation of human rights and justification for criminal indictment and the threat of military intervention.

There is also the problem of selectivity, both in terms of what evidence the ICC prosecutor and the court's Pre-Trial Chamber choose to look at, and ignore, but also in terms of which particular regimes and individuals to investigate among the plethora of governments and persons commiting war crimes and other barbarities. Why, for example, has the ICC chosen to target the Sudanese leadership regarding Darfur, but not the Georgian authorities for their pre-emptive attacks against the people of South Ossetia? Why has the Rwanda Tribunal only prosecuted Hutus but not Tutsis? Why was Milosovic and the Serbs targeted by the ICTY but not the leaders of the break-away Bosnian and Croatian administrations, or members of the Kosovo Liberation Army who, by common consent, committed numerous acts of ethnic cleansing, among other crimes? Why has Tony Blair not been indicted for authorising the high-altitude bombing of Belgrade and Baghdad, which he presumably knew would result in civilian deaths?

Fourth, the ICC will undermine the capacity of the UN and other mediators to negotiate peaceful settlements in war-torn parts of the World. If the court issues indictments then it will be more difficult in certain situations to persuade the targetted individuals to participate in peace talks. How could, for example, the Sudanese president be expected to attend, say, a vital conference outside of his country relating to the problems of Darfur if there is an international warrant out for his arrest? How can political leaders involved in civil wars who are under investigation by the court address openly and honestly issues of violence with their opponents and outside agencies if they fear that anything they say might one day be used against them in The Hague?

In certain situations, the ICC's interference could result in UN missions being expelled from countries experiencing conflict. If dissident groups within nations are encouraging outside intervention and ICC prosecutions this might encourage governments to intensify repression and armed conflict rather than reach a compromise or transition of power for fear of being handed over to the The Hague should the opposition be allowed to come to power. It has been speculated that this concern has been one of the factors preventing the negotiation of a deal between Robert Mugabe and the Zimbabwian opposition.


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