The Odd Track-Record Of The International Criminal Court – OpEd
The ICC wants to probe ex-President Duterte’s drug war. The Philippines government rejects the effort. Whose justice does ICC represent?
Recently, the Philippines opted for “disengaging” from the International Criminal Court, after the ICC’s Appeals Chamber denied Manila’s request to suspend the probe. President Marcos Jr. stated that the country cannot work with the ICC, due to its interference on the “sovereignty of the Republic.”
Senator Imee Marcos on Friday called the ICC a “caricature of international justice.” Among other reasons, she cited the 2003 US-led invasion of Iraq, “based on non-existent weapons of mass destruction and in violation of resolutions by the United Nations.” She added that “the West’s oft-invoked cliché about upholding an ‘international rules-based order’ is apparently a sham… Picking on African nations and other ‘low-hanging fruit’ like the Philippines is easier for the ICC.”
As Chairperson of Senate Committee on Foreign Relations, Marcos’s words matter. But does she have a point?
Targeting the poorest and the weakest
For a decade or two, the ICC has gone largely after the poorest countries in Africa, which suffered the worst and longest from colonial massacres and plunder; and still do.
The prosecution of President Uhuru Kenyatta led to the Kenyan parliament’s call for withdrawal from the ICC and the call on more than 30 African member states to withdraw their support. After a three-year juridical chaos, the ICC charges were dropped in March 2015 for lack of evidence.
It was a disappointment to Kenya’s political opposition funded particularly by controversial billionaire George Soros’s Open Society. Uhuru accused the ICC of being “a toy of declining imperial powers.”
In addition to Uhuru, almost 40 individuals have been indicted by the ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Libyan leader Muammar Gaddafi, Ivorian president Laurent Gbagbo, and Congolese vice-president Jean-Pierre Bemba. High-profile ICC cases suggest a pattern of orchestration:
- Untapped economic potential and/or geopolitical importance of the target country;
- followed by political destabilization, market volatility and economic uncertainty;
- rise of new leaders, typically supported by local oligarchies and external interests;
- weaker development, social polarization.
Kenya was no exception. As the ICC process began to penalize Kenya’s political leadership, economic growth almost halved to 4.6 percent in 2012 stabilizing thereafter but at a significantly lower level than in 2010.
ICC’s compromised Ocampo
The Office of the Prosecutor (OTP) is responsible for conducting investigations and prosecutions. The OTP has opened investigations in 14 cases and conducted preliminary examinations in 6 situations, including the Philippines.
Before his post as the first ICC prosecutor (2003-12), Luis Moreno Ocampo long cultivated ties to organizations funded by the billionaire speculator George Soros. His ties stem from the early 1990s, when Soros began to infuse funds into a real estate conglomerate (IRSA), a prominent backer of Ocampo’s NGO in Argentina.
When the UN Security Council assigned Ocampo the task of investigating war crimes in the oil-rich Libya, which was soon hit by airstrikes of France, Britain, the US and other countries, Ocampo reportedly shared confidential information about ongoing investigations with a party to the conflict; the French foreign minister’s cabinet chief.
As Ocampo left the ICC for a lucrative career in private practice, he signed a contract worth $3 million over three years, plus $5,000 a day, with a Libyan oil billionaire Hassan Tatanaki who had close links with Colonel Gaddafi and was involved with the Libyan civil war. Ocampo used insider information to protect his client from possible prosecution by the ICC. Perhaps due to public scrutiny, the contract was terminated after 3 months, with the ex-prosecutor earning $750,000.
Officially a champion for transparency, Ocampo made unofficially millions of dollars in such deals routing monies to offshore companies in tax havens, as evidenced by the Panama Papers. As he later said, he wanted to “make some more millions” because the ICC salary ($220,000) was inadequate for his needs.
Ocampo’s links that have material interest in the Philippines include Rappler’s CEO Maria Ressa, its funder eBay billionaire Pierre Omidyar, Ressa’s lawyer Amal Clooney, and the late US secretary of state Madeline Albright – the longtime chair of the Democratic arm of National Endowment for Democracy (NED). Through her investment firm, Albright cooperated with Ocampo and Soros in countries the ICC has targeted.
Criticism against Bensouda
Fatou Bensouda served as the ICC’s chief prosecutor in 2012-21. In her native Gambia, she had a role in the early years of the Jammeh regime, following the bloodless 1994 coup. Jammeh retained his grip over Gambia until 2017, is accused of having stolen millions of dollars from the country’s coffers and raped young women.
In December 2011, Bensouda became the consensus choice to succeed Ocampo as the ICC prosecutor. After his departure, Ocampo became embroiled in a series of controversies relating to his tenure. These included Ocampo-Bensouda exchanges, even in highly confidential matters. In October 2017, Bensouda and members of her staff were accused by Der Spiegel of staying in touch with Ocampo.
Reportedly, Bensouda had sought her predecessor’s advice on several occasions and possibly allowed herself to be influenced by Ocampo in ICC cases that were of material interest to his private practice.
US State Department revoked Bensouda’s visa in April 2019, reportedly to prevent ICC from investigating whether U.S. servicemen or officials engaged in war crimes in Afghanistan, Poland, Romania and Lithuania. Two years later, the sanctions were lifted.
The current ICC prosecutor (2021-) is Karim Ahmad Khan. Not so long ago, he requested judges of the pre-trial chamber to move forward in the probe into the Philippines’ “war on drugs.”
Khan is former assistant of UN Secretary-General; a British lawyer, who never finished his doctoral studies. His career took off following service at the OTP in Yugoslavia and Rwanda. After the appointment to head the OTP in mid-2021, Khan played a critical role in the decisions not to prosecute US military for war crimes in Afghanistan, which he justified by the ICC’s limited financial means.
Yet, barely a month after Russia’s “special military operation” in Ukraine, Khan pledged to go after Moscow for war crimes. And recently, he issued an arrest warrant for President Putin (based on a report by the Yale HRL center funded by the US State Department).
Apparently, the ICC’s financial health has improved.
The ICC is financed “primarily” by member states. Most funds come from only 10 countries, particularly Europe’s former colonial powers and the rest from Japan, South Korea, and Canada.
The US and Russia have said they no longer intend to become ICC members and thus have no legal obligations arising from their signature of the Statute. China’s view is that the ICC goes against the sovereignty of nation states. The most populous middle-income economies remain outside the ICC.
Additional ICC funding is provided by “voluntary government contributions, international organizations, individuals, corporations, and other entities.” The lack of transparency and accountability creates potential for gross moral hazard.
Multinationals that have funded war lords in Africa to extract oil, gas, minerals and conflict diamonds tend to be interested in targeting African politicians in the ICC. The same goes for vulture investors. Mineral-rich economies with dirt-poor people are easy targets.
Obviously, the ICC has to conduct its work in circumstances that are very challenging and highly vulnerable to political headwinds. Nonetheless, it is difficult to avoid the perception that in its past two decades the ICCs credibility has been deflated and judicial independence compromised. Furthermore, it has shown prejudicial bias against emerging and developing economies.
A truly international criminal court must appropriately represent the multipolar world it would judge. Private money should have no role in its funding. We desperately need such a court. The current ICC is not that court.