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10 questions & answers about the International Criminal Court

Q. What is the ICC?

A. The Court was created by the Rome Statute, which came into force on July 1, 2002. The ICC can only investigate alleged crimes committed after that date. So far, 108 countries have ratified it. China, the United States and Russia are among the nations that have not signed up. While it has a relationship with the United Nations Security Council, the ICC is not officially a UN court and is not to be confused with the UN International Court of Justice. The ICC should be seen as an ad-hoc body established by the specific countries that unilaterally set it up.


Q. What crimes can the ICC investigate?

A. The ICC treaty claims jurisdiction over 1) the crime of genocide, 2) crimes against humanity and 3) war crimes.

The court can indict persons from nations that are ICC members, or who have committed the above mentioned crimes on the territories of signatory states. Despite the fact that 3 of the 5 permanent members are not affiliated to the ICC, the UN Security Council claims to be able to refer individuals for investigation to the ICC even if they are not citizens of a member state (articles 4 and 13 of the Rome Statute). Thus, the ICC implicitly claims universal jurisdiction. This is why it has issued an arrest warrant for President Al-Bashir of Sudan, and other persons from that country, in relation to the conflict in Darfur.


Q. Where does the ICC stand in relation to waging wars of aggression?

A. The court does not, as yet, have the right to prosecute over the crime of waging aggressive war, historically considered to be the supreme international crime and the basis of the Nuremberg Tribunal which tried Nazi leaders and officials after the Second World War. The major western powers behind the ICC have excluded this crime from the court's remit because they do not want to have their political leaders and military personnel potentially indicted. Britain, together with America, has waged illegal wars against Iraq and the former Yugoslavia.

Infamously, the late British foreign secretary Robin Cook (one of the principal forces behind the creation of the court) said: "This is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States."


Q. Who funds the ICC?

A. The ICC is predominantly funded by European governments. Of the contributions to the ICC's total approved budget for 2009 of 96.4 million euros, European states provided 57.2 million euros. Germany contributed 12.3 million, Britain 9.5 million, France 9 million and Italy 7.1million. A further 7.2 million euros come from Australia, Canada and New Zealand.

Former EU Commissioner Chris Patten has confirmed in his memoirs that not only is Europe largely funding the ICC but also using taxpayers' money to support 'advocacy' groups that promote the court: "The EU had been a strong supporter of the establishment of the ICC; we had worked for years to achieve its creation; we helped to fund organisations that themselves acted as advocates for the court. Europe has adoped a common position on this." (Not Quite a Diplomat, Penguin, 2006, p309)

The ICC's Assembly of States Parties Eighth Session report, published in May 2009, confirms that the court is actively co-operating with the EU Judicial Co-operation Unit (Eurojust) and Europol, the EU's embryonic police force.

Bizarrely, the ICC admits that it also receives contributions from large corporations and other private donors, which is extraordinary for a public body that is supposedly impartial. However, it does not make publicly available who these mysterious interests are.


Q. Does the ICC represent the 'international community'?

A. No, in reality, it only represents the governments of the countries who have signed the treaty establishing the Court. The ICC member states represent only 27% of the World's population. Russia, China and the USA, amongst many other countries, have not signed the Rome Statute.

Since there is no 'international community' in the political sense of a unified global authority that the separate peoples of the World have democratically consented to be legally subject to, the ICC has no moral authority to pronounce its right to universal jurisdiction. The court has no democratic mandate to back up its grandiose claims.

The claim of the ICC to be the guardian of the international rule of law is preposterous as only nation-states can legitimately give rise to criminal justice systems that can try and punish individual citizens. For this organisation to assert universal jurisdiction is neo-imperialistic as it implies that sovereign nations that have refused to ratify the Rome Statute should still nevertheless be legally subordinate to it. This is a recipe for a new, Europe-directed, colonialism.


Q. Who has the ICC opened investigations into and indicted
so far?

A. Fourteen individuals, all from African countries, have so far been indicted. Only one trial has actually commenced, that being of Thomas Lubanga from the Democratic Republic of the Congo (DRC). Investigations have been opened into the situations in Uganda, Sudan, DRC and the Central African Republic


Q. Is the ICC compatible with the international rule of law?

A. The 1969 UN Vienna Convention on international treaties states that no treaty can be imposed on a country that has not ratified it. Thus, the above mentioned article 13 of the Rome Statute is incompatible with this basic traditional tenet of international law. It is also at odds with the UN Charter chapters 1 and 2 that affirm the organisation's respect for the 'equal sovereignty' of the member states.

What also undermines the ICC's claim to be upholding the international rule of law is that it has awarded its own officials immunity from prosecution.


Q. Is the ICC really impartial concerning who it goes after?

A. The ICC is also incompatible with the concept of the rule of law in the broader sense of this concept. This implies the non-selective and impartial application of the law. The ICC has refused to investigate hundreds of complaints relating to Iraq, Palestine and Afghanistan. So far, its chief prosecutor, Luis Moreno-Ocampo, has only opened investigations into persons from African countries. It has also been accused of being selective in terms of only pursuing individuals from one side of conflicts in which international crimes are alleged to have taken place.

Why is it, for example, that Joseph Kony of the Lords Resistance Army in Uganda has been indicted but not persons connected to the government and armed forces of that country which have also been accused of violating human rights? And why has the court not issued arrest warrants for those involved with the rebel groups in Darfur who have very clearly forcibly recruited child soldiers, despite the fact that the Thomas Lubanga trial focuses exclusively on child soldiers?


Q. Does the ICC respect the human rights of those it indicts?

A. The ICC's record to date has been very questionable. The chief prosecutor, for example, perverted the course of justice by deliberately refusing to hand over important 'exculpatory' documents from the UN to the defence team of Thomas Lubanga, a citizen of the Democratic Republic of the Congo, currently on trial in The Hague. These documents cast doubt on the case against Mr Lubanga regarding the recruitment of child soldiers.

In addition, there has been a huge funding imbalance between the prosecution and defence teams in this case. The ICC prosecutor has had 20 researchers out in the field making a case against Lubanga, whereas his defence has only been able to afford a single person. On top of this, the ICC judges have decreed that a majority of the witnesses testifying against the accused can do so anonymously - so making effective cross-examination impossible - and in private. On top of all this, so-called 'victim statements' have been made to the court which can only have the effect of prejudicing the minds of the judges against the person in the dock.


Q. Who is employed by the ICC?

A. The ICC is also top-heavy with Europeans and westerners in relation to those employed within its professional ranks. Out of 294 officials, 147 come from Europe and other western nations. France alone accounts for 47 members of staff, the UK and Germany 19 each. Of the top D-1 grade, Europe accounts for 5 employees in key posts, whereas there is only 1 African.

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