Shenali D Waduge

“If I may say so, this is not a court set up to bring to book prime ministers of the

United Kingdom or presidents of the United States.”

(Former British Foreign Minister – Robin Cook)

When the Treaty for an international court is hastily drafted in 4 weeks by a Coalition of NGOs and is almost 70% funded by EU member nations and has to date since becoming a permanent tribunal (11 March 2003) indicted 27 Africans from 7 African countries only it is extremely hard to not wonder why only one continent and only black leaders have become targets of the International Criminal Court. It rekindles Church-partnered colonial imperialism wherein the aim of the Church was to steal the Africans from Africa while the aim of European colonial imperialists was to steal Africa from the Africans. This theft has been taken to a new level through the ICC in a bid to legally remove Africa’s leaders and secure neocolonial expansion.

While the ICC can prosecute crimes committed only on or after 1^st July 2002, over 70% of the world’s population does not come under its jurisdiction with hardly 27% seeking membership of the ICC. The populations of the countries that have ratified the Rome Statute ((Andorra, Antigua, Dominica, Barbuda, Nauru, Liechtenstein, San Marino) is hardly 347,000 while the populations of countries that have not ratified the Statute runs into billions – China 1.25b, India 1b, Indonesia 230m, Russia, 150m, USA, 312m, Japan 125m.

That tribunals have been aimed against anti-Western targets is proven by the ad hoc courts held thus far:

• International Criminal Tribunal for the Former Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda (ICTR)
• Tribunals for East Timor, Sierra Leone and Cambodia
• NOT A SINGLE has been held to investigate the military interventions since 2003 that led to civilian deaths through NATO air strikes, unarmed civilian killings by coalition forces, use of banned chemicals by coalition forces. This is where the double standards and hypocrisy is question.

With regard to the establishment of the ICC we raise some question:

• Has the UN Charter given power to the UN Security Council to bind non-state parties to any international treaty? The answer is no because under the Law of Treaties, no state can be forced to accede to a treaty or be bound by the provisions of a Treaty it has not accepted. Thus the ICC Statute is violating the fundamental principle of international law by conferring power to the Security Council which it does not have the power to do since the Security Council has non-state parties and how can non-state parties bind other non-state parties?
• Is it also true that NGOs set up the agenda, drafted documents and lobbied delegates of the ICC and questions the credibility.
• When the ICC’s budget is financed by the European Union providing over 75% of funds would the EU members allow the crimes of its countries to be taken for trials? The biggest contributors to the ICC in 2009 were Germany €12.95m (almost 14%); UK €10.03m (10%); Italy €7.67m (8%); France €7.55m (8%); Spain €4.48m (4%). The five dominant EU countries paid 44% of the ICC budget.
• Why should people be taken from their homes and shipped to Europe to sit in European prisons before awaiting ICC trial?.How fair is this system and does it not resemble colonial justice system?  
  • When Article 116 of the Rome Statute provides for voluntary contributions but details of the mysterious donors are kept hidden we again question the indirect influence being exerted especially when donors can be  major multinational companies who can influence even governments.
  • Is it also true that the ICC Chief Prosecutor, Luis Moreno-Ocamp who took up Darfur had never been to Sudan, his office had not visited Sudan and they relied only on tidbits given by ‘advocacy’ groups and NGOs?
  • Why has the ICC completely shut out the need to investigate human rights abuses by super power states and their puppet client states?
  • Why has the ICC ignored Iraq, Afghanistan, Libya?
  • If Article 13(b) and 166 of the ICC Statute grants special “prosecutorial” rights to refer to defer an ICC investigation/prosecution to the UN Security Council how valid is it when 3 of the 5 permanent members are not members of the ICC?
  • If the ICC is logistically dependent on the UN and can exercise territorial jurisdiction/personal jurisdiction ONLY to the states party to the Rome Statute how ‘universal’ is the ICC to be defined a world court?
  • If Article 16 enables the UN Security Council to delay prosecutions for a year how accountable is the ICC as it is not accountable to any public entity.
  • On what grounds can ICC deny allegations made by the US that the Rome Statute creates a ‘self-initiating prosecutor answerable to no state or institution other than the Court itself”.
  • What can the ICC say when US support for ICC was based on referring Darfur (Sudan) in line with its political agenda despite US accusing ICC of being used to pursue political vendettas? When Hillary Clinton in January 2009 says ‘we will end hostility toward the ICC and look for opportunities…..that promote US interests by bringing war criminals to justice’ does it not imply that the US plans to use ICC for its own agenda?
  • Is it true that the ICC Statute says that the use of weapons of mass destruction is NOT A WAR CRIME?

 Why does ONLY US enjoy immunity

In a world where every country is to be treated equally irrespective of their size how is it that the US which has not ratified the Rome Statute on the grounds that US forces overseas could be prosecuted by the ICC can force bilateral immunity agreements (BIA)?

 US passed the American Service Members Protection Act in 2002 known unofficially as “the Hague Invasion Act” wherein even American lawyers can face legal action if they work on a case which could lead to a US citizen being put before the ICC. This US Act even enables the US to come and free any American on trial in The Hague using Article 98 Agreement signed with other ICC member countries where state parties are made to assure that they will not hand over any US citizen to the ICC or any other international tribunals. US has also thought of punitive actions for countries refusing to sign BIA’s with US and through the 2004 Nethercutt Amendment, US can penalize member countries by cutting foreign aid. Thus by 2006, over 100 bilateral agreements had been signed with 53 countries refusing to sign.

 ICC & EU

 ICC’s 4 biggest funders are Germany, Britain, France and Italy – not only do they dominate the court, they hold the key to the existence of the ICC. We would not be exaggerating if we say that the ICC is a project of the European Union. Influence of EU over ICC is seen by the EU issuing over 275 demarches (60  per year) against over 110 developing countries to ratify the Rome Statute and the Agreements on Privileges and Immunities.

• How ethical is it for the EU to fund 21 pro-ICC NGO projects that were tasked to campaign to get nations to ratify the ICC?
• What level of impartial and unbiased productivity can we expect when close to 60% of the employees working for the ICC are Europeans or non-whites worshipping Europeans and not caring what happens to the natives of the countries they originated from?
• Isn’t it odd that out of 294 professionals, 147 come from Europe, Australia, Canada, New Zealand and the US – the countries that have not ratified the Rome Statute?
  

Statements that clearly show Western influence over ICC

“The EU will continue to use all means available to it to promote the ICC in its policies and the principles of international criminal justice. It will accordingly bring the ICC into its policies, particularly in development, conflict prevention, justice, freedom and security.” (2008)

“The ICC is mainstreamed into EU internal, as well as external, policies targeting areas where the Court is under-represented, such as Asia, Central Asia and the Middle East.”

“The ICC badly needs to regain the confidence and trust of the people whose interests it is pursuing. It must correct the image it has acquired of an institution subject to manipulation by the Ugandan government for political expediency. It must restore the image of a credible international institution.” (Human Rights Watch)

The Uncle Toms & Aunt Jemima’s

Joining the list of Uncle Tom’s is Fatou Bensouda (Gambian lawyer) who takes over as ICC Chief Prosecutor. She is an African and probably chosen for the role to counter claims that ICC only targets Africa. From Obama, Condelezza to Tutu, to Pillay the trend is to place non-whites on the pedestal and have them bring their own people to the gallows and they are doing a marvelous jobs on behalf of the white imperialists for which they are remunerated by gratifying their personal complexes.

African States coerced into signing/ratifying ICC Rome Statute

Revised Cotonou Agreement of 2002 came with a carrot of millions in ‘development’ aid and coerced 34 African states into signing/ratifying the ICC Rome Statute. This is where advisors who may be functioning as Uncle Toms end up manipulating state leaders for having signed and even ratified the ICC statute they must take responsibility for willingly joining the body. African leaders and Asia’s leaders need to be mindful of what they sign and most importantly be certain that the advisors they have chosen are not Uncle Toms or Aunt Jemima’s.

These actions clearly show that the non-whites are bribed by development aid into signing and ratifying agreements and signing immunity clauses that would put only non-white nations on trial and allow white-western nations to enjoy immunity. So where is there justice without racial bias?

If we take the leaders of the countries ICC has charged we raise some questions

• Uganda – Why does ICC charge LRA rebels but not pro-US Government headed by President Museveni?
• DR Congo – why is the ICC mum on links between armies of Uganda and Rwanda (both pro-US)
• Sudan – If Sudan is a non-signatory of the Rome Statute why did ICC take action on Darfur?

Rwandan President Paul Kagame has dismissed ICC as a new form of imperialism created by the West ‘put in place only for African countries’ and reflected ‘colonialism, slavery and imperialism’.

Uganda case study: The International Court of Justice in a 2005 landmark case adjudicated on claims by DR Congo that the Ugandan government had invaded Congolese territory and plundered its natural resources and massacred civilians. ICJ held that Ugandan troops occupying DRCongo were bound by IHL and HR obligations and the Ugandan Government were liable under doctrine of responsibility. ICC however did not indict any Ugandan officer/official for these crimes but instead indicted Thomas Lubanga for allegedly using child soldiers in DRCongo. While ICC did not charge Uganda it went after Ugandan rebels. Is this because of the US support involved?

Congo case study: ICC has also turned a blind eye to crimes committed by the Congolese government inside Congo giving impunity to the government in Kinshasa.

African Unity

It has been long coming but finally the 54 nation African Union has closed ranks demanding ICC drop criminal charges against sitting presidents. “African states parties should comply with African Union decisions on the ICC and continue to speak with one voice….There is an imperative need for all member states to ensure that they adhere to and articulate commonly agreed positions …”

The level to which Africa’s nationalism has degenerated following imperial influence and presence is seen by the emergence of Uncle Tom’s influencing the thoughts of the masses using their Western lobbies and mass media. As such the Uncle Tom’s led by likes of Desmond Tutu openly professed Africa should not withdraw from the ICC which was embraced and trumpeted in western capitals.

There are many Uncle Toms and surrogates not only in Africa but in Asia and Latin America as well. These are people reluctant to question on what grounds the US can rescue its citizens from The Hague but US insists all others stand trial.

The calls by the 54 African Union to withdraw from the ICC shows that Africa is finally waking up from slumber and is seeing the ICC as another instrument of apartheid and discrimination.