The International Criminal Court: A colonial institution?

The recent withdrawal of the Philippines from the Rome Statute, the treaty which established the International Criminal Court, coupled with the call of President Duterte for countries to withdraw from the ICC has shaken the ICC to its core.

On one hand, this has been perceived as a setback for the ICC and human rights protection. On the other hand, this has been considered as an inevitable result of increasing antagonism by countries colonized by the Western powers against the ICC which has allegedly become a tool of former colonizers to continue their domination and control the direction of international criminal prosecution.

The pronouncement of President Duterte against the ICC is not the first of its kind. Various political leaders and legal scholars are of the opinion that the ICC is a colonial institution. The admonition aired by Kenneth Abbot and Duncan Snidal that ‘powerful states structure international organizations to further their own interests but must do so in a way that induces weaker states to participate’ has apparently been ignored.

Their warning has been validated by the African experience. The siren call of victims’ justice has been used as an excuse for continued western domination.

Of the 122 ICC state parties, 34 are from Africa making it the largest bloc of states parties to the Rome Statute. Archbishop Desmond Tutu and former Secretary General Kofi Annan had vigorously pushed for its adoption.

Several subsequent events where western powers have used Article 16 to defer cases have resulted in the disillusion of ASP with the ICC and perceive it as an instrument for foreign domination which is synonymous to colonialism. The following statements of African leaders mirrors their disappointment and validated the warnings of Abbot and Snidal.

When the resolution referring the situation in Darfur to the ICC was passed, the Sudanese representative stated that: To the

claim made by some that this resolution sends a message to all the parties that no one will now enjoy impunity, I would add — in order to avoid hypocrisy —“Except if he belongs to a certain category of States.”

When the SC failed to defer the Kenyan cases against the president and deputy president, the Rwandan representative observed: [Article 16] was proposed by some of the Western Powers present at the Council table to be applied solely in their interest. In other words, article 16 was never meant to be used by an African State or any of the developing countries. It seems to have been conceived as an additional tool for the big Powers to protect themselves and protect their own.’

“The ICC only targets African leaders…It is a neo-colonialism institution that peddles the western agenda. The western nations seek to control African politics through ICC investigations,” according to Katoo Ole Matito, member of Parliament, Kajiado South, Kenya,

The Hansard, 5 September 2013. This lament encapsulates the essence of the perceived evils accompanying institutions that perpetuate “colonialism” or the domination of western countries over nonwestern countries to this day.

The doctrine of terra nullis was used to claim that land inhabited by “naked” and “inferior” peoples justified colonialism and enslavement in order to “civilize” such peoples.

The emergence of Third World Approaches to International Law (TWAIL) among legal advocates seeks to deconstruct the use of international law for the perpetuation of international norms and international organizations that subordinate non-Europeans to Europeans, former colonies to their former colonizers.

The ICC was established on July 1, 2002. The Court’s main function was to try, and if found guilty, to punish the perpetrators of crimes within the Court’s jurisdiction and in the process deter the future commission of these crimes.

The ICC is theoretically “independent” but in practice, it is not. The power of the UN Security Council (SC) to refer situations to the Court under Article 13(b) of the Statute, and to defer the investigation and prosecution of cases at the Court under Article 16 of the Statute, undermine the independence of the ICC. These two articles have enabled the SC to control investigations or overrule the ICC.

The aforementioned power to refer or defer has invariably been used by powerful states to advance or protect their own interests and those of their allies. An example is the veto by China and Russia of two Chapter VII resolutions touching on the conflict in Syria. As a result, the SC, whose powers are vested in the P5 or five Permanent Members of the SC – three of whom are not even state parties to the ICC – wields more power over the ICC than the African State Parties (ASP), all of whose members are state parties to the Rome Statute.

Using human rights as an excuse, the International Delegates of the Progressive Alliance which visited the Philippines in October 2017 called for a halt on drug-related killings.

The Inter-Parliamentary Union and Amnesty International have interfered with our judicial processes by demanding that Secretary de Lima be released and the charges against her be dismissed even while her case is being tried. The gravity of the charges which is her being complicit with the drug lords while she was Secretary of Justice are very serious. They have arrogated upon themselves the role of lawyer for the accused and judge. They should wait for the trial to be finished before issuing such statements.

They have ignored the basic tenet that the right to due process is a basic right guaranteed under the UN Charter, and both the prosecution and the defense have the right to be heard and have their day in court.

The foregoing discussion supports the principled decision of President Duterte for the Philippines to leave the ICC. It is a COLONIAL INSTITUTION CONCEPTUALIZED TO PROTECT THE INTEREST OF WESTERN COUNTRIES and CONTINUE THEIR DOMINATION over non-western countries.

The Philippines should lead other countries in seeking the repeal of sections 13 and 16 of the ICC Charter which perpetuate these injustice and inequality in conjunction with Chapter VII of the UN Charter which gives the SC discretion to take appropriate measures – including the use of force – to deal with threats and breaches to peace and acts of aggression, so as to maintain or restore international peace and security.

Russia and China are two of the countries where human rights are ignored if not downright violated. Yet, they cannot be sanctioned for the simple reason that they are part of the five permanent members of the SC with veto powers. Expectedly, they could veto any sanction against them or their allies. This is because a single permanent member of the SC can always veto any sanction imposed by the ICC. The same is true with the three permanent members namely France, United States and England. They and their allies can be said to be beyond the reach of the ICC.

To be continued