A Paper by David Hoile, Director, Africa Research Centre, and Research Professor, Sudan International University, delivered at the 12th Rhodes Forum on September 26, 2014
The pursuit of justice, in the wake of wrongdoing and especially in the face of crimes against humanity and war crimes, is one of mankind’s most noble instincts. The International Criminal Court, and its stated commitment to justice without fear or favour, was embraced with understandable enthusiasm by a wide range of people, non-governmental organisations and governments when it came into being on 1 July 2002. At the centre of those who initially welcomed it were emergent nations, of whom many were African. It is safe to say that the court has become very controversial for a number of reasons.
It is important to define one or two of the words in the title of this presentation. Justice is defined as being:
"1. The quality of being just; fairness. 2. a. The principle of moral rightness; equity. b. Conformity to moral rightness in action or attitude; righteousness. 3. a. The upholding of what is just, especially fair treatment and due reward in accordance with honor, standards, or law. b. Law. The administration and procedure of law. 4. Conformity to truth, fact, or sound reason." 
It should be said from the outset that the ICC’s claims to international jurisdiction is flawed. It is not a global court. The United States, Russia, China, Indonesia and Pakistan are not are members. The world’s most-populous democracy, India, has refused to sign up. All in all, despite its name, ICC members represent just over one-quarter of humanity.
A court is only as credible as its independence. Far from being an independent and impartial court, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council – by default its five permanent members. Political interference in the legal process was thus made part of the Court’s founding terms of reference. One has the situation with the ICC where the Security Council - three of whose five permanent members are not members of the ICC - have referred Sudan and Libya, who are also not members of the ICC, to the Court. Apart from contradicting international treaty law - a country cannot be bound by a treaty it has not signed - many of us may also agree that this is neither fair nor just. It is with doubt a key example of a democratic deficit. Sudanese and Libyan citizens definitely have no say in any decision process.
The ICC is a child of the European Union. The only question is whether it was by conception or adoption. The Court is inextricably tied to the EU which provides over 60 percent of its funding. The EU in turn is guilty of blatant political and economic blackmail in tying aid for developing countries to ICC membership.
A clear premise for the Court, as enshrined in the Rome Statute, is justice for all, equity and moral righteousness. These values have been hard to discern in the Court's record to date. What is clear is that the ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states. As one example, in Afghanistan, an ICC member state, the slaughter of over 100 civilians in Kunduz in September 2009, directed by a German army colonel in violation of every NATO standing order, was ignored by the ICC and the German state. Ministers resigned but rather than prosecute the colonel, Berlin promoted him to general. There have been dozens of similar incidents in Afghanistan, all of them ignored by the ICC.
Instead of impartially enforcing the Rome Statute, the Europeans have chosen to focus the Court exclusively on Africa. The ICC is self-evidently a racist court, in that it treats one race of people differently to all others. This is neither just or fair. Imagine the uproar if a criminal court existed in your country that only tried black Africans. Despite having received almost 9,000 formal complaints about alleged crimes in at least 139 countries, the ICC has chosen to indict 36 black Africans in eight African countries. Given Africa’s previous traumatic experience with the very same colonial powers that now in effect direct the ICC, this is an alarming déjà vu for those who live on the continent. The ICC has emerged very much as an instrument of European foreign policy and its actions are increasingly being seen as recolonisation by spurious legal diktat. In a time when political correctness permeates so much of Western culture, it is surprising to see the Global North turning a blind eye to what clearly amounts to racism when it comes to the ICC.
This is a state of affairs with which the United States is happy to go along. While Washington has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence and that no American citizen will ever come before it, the American government is nonetheless very happy, for its own political reasons, to demand that black Africans appear before it.
Procedurally, the court has been a study in incompetence. The Court’s proceedings thus far have often been questionable where not simply farcical. Its judges – some of whom have never been lawyers, let alone judges – are the result of corrupt vote-trading amongst member states. Far from securing the best legal minds in the world this produces mediocrity. The ICC has elected “judges” who have had neither law degree nor legal experience but whose country had contributed handsomely to the ICC budget. The incompetence of ICC judges was such that in their first ever case they decided to add new charges half-way through proceedings - a clear miscarriage of justice - a move that was subsequently overturned after much delay to the trial.
And then there has also been the ICC Chief Prosecutor who was not just seemingly unaware of the legal concept of presumption of innocence but actually threatened to criminalise third-parties who might argue a presumption of innocence on the part of those indicted – and as yet unconvicted – by the Court. One cannot help but be reminded of the “sentence first, verdict afterwards” justice in Alice in Wonderland. There have been numerous prosecutorial decisions which should have ended any fair trial because they have compromised the integrity of any legal process. The ICC’s trials have proceeded erratically because of crass prosecutorial misconduct. In his showcase first trial the Chief Prosecutor tried to hide hundreds of items of exculpatory evidence not just from the defence but also the judges.
The prosecution has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. Scores of other “witnesses” have similarly disavowed their “evidence” in several ICC trials. Even those witnesses who testified were questionable. In its first ever trial, that of Thomas Lubanga, a militia leader in the Democratic Republic of Congo, accused of using child soldiers, the judges found all but one of the alleged former child soldiers called as witnesses by the prosecution to be unreliable.
The ICC claims to be “economical” and to bring “swift justice”, yet it has consumed more than a billion Euros and still has not even fully completed its first case, the deeply flawed Lubanga trial. Despite being held in ICC custody since 2006, as of today the appeal stage of Lubanga’s case has not yet been concluded.
The ICC claims to be victim-centred yet Human Rights Watch has publicly criticised the ICC’s ambivalence towards victim communities. The ICC claims to be fighting impunity, yet it has repeatedly granted de jure immunity to the United States and afforded de facto immunity and impunity to NATO member states and several serial abusers of human rights who happen to be friends of the European Union and United States.
Far from deterring conflict, as it claims, the ICC has derailed delicate peace processes across the African continent – thereby prolonging devastating civil wars. The court is responsible for the death, injury and displacement of many thousands of Africans. The ICC’s involvement in Uganda, for example, destroyed peace talks in that country, intensifying the conflict which then spread into three neighbouring countries.
Having reviewed the above alongside the definition of justice, one can safely state that the ICC does not overwhelmingly meet with what we would all understand as justice.
Having established this, we need to examine if the ICC can be described as an adjunct to regime change? Adjunct is defined as contributing to or aiding an activity or process in a minor way; being supplementary to or in a subordinate relationship.
With that definition it is clear that the ICC has served as an adjunct to regime change. One clear example was that of Libya in 2011.
In March 2011, led by France and the UK, NATO, the world’s most powerful military alliance, made up of twenty-eight member states from North America and Europe, virtually all of them key members of the ICC, went to war with an African country, Libya, to remove Colonel Muammar Gaddafi and his government from power. The war in Libya ended in late October 2011, following the overthrow of the regime and Gaddafi’s summary execution by rebel forces on 20 October 2011. The ICC's role in this intervention is clear.
In mid-February 2011, following on from events in Tunisia and Egypt, there was unrest in parts of eastern Libya. The protests escalated and the Libyan government responded firmly resulting in civilian casualties. Western countries realised that the government would not be overthrown by the Libyan people. A British parliamentarian used a gambling analogy to describe the western approach to Libya. Writing at the time he noted "Britain has gambled on the Libyan issue. We bet on it all being over in 48 hours. When this did not happen, we doubled the bet, and then doubled it and doubled it again."  One of the poker chips that NATO threw onto the table was the ICC. On 26 February 2011, the UN Security Council referred the situation in Libya since 15 February 2011 to the International Criminal Court. On 3 March 2011, just 4 days, the ICC Prosecutor declared that he would open an investigation in this situation.
On 17 March 2011 the Security Council passed a resolution to impose a no-fly zone in Libyan airspace: Russia and China acquiesced.  NATO took charge of the operation and two days later commenced bombing Libya. NATO unilaterally extended the No Fly Zone into a no fly, no drive, no sail zone, no Libyan military zone within which western air forces attacked Libyan government forces on sight on land, sea and air. NATO acted as the air force for several Islamist militias in attacking government forces. It is worth noting that the simple reason why Russia and China have not gone ahead with a no fly zone or ICC referral in the case of Syria is because they were shocked at the West's blatant manipulation of both of these mechanisms.
As the Libyan government continued its resistance both to NATO military strikes and the Islamist militias in the east, the ICC increased the pressure. On 15 May the Prosecutor announced that the Court was “almost ready for trial.”  This was despite admitting at the same time that his Office had not taken any evidence or accounts from witnesses inside Libya. The following day the Prosecutor asked for three arrest warrants against Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. These of course were granted by ICC judges.
In delegitimising and demonising the Gaddafi government the ICC served as a rubber stamp for NATO intervention in Libya. The speed at which the ICC responded to pressure from pivotal European member states such as France and the United Kingdom to indict key figures in the Libyan government astounded senior international jurists. Louise Arbour, the former UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, expressed considerable surprise at the speed of the Court’s involvement:
"[T]he Libya referral is noteworthy for the speed with which it was made. In the case of Darfur...it took two years and an international inquiry before the Security Council made its referral. Another two months would pass before the ICC formally opened its investigation. In comparison, the Libya process has, so far, progressed at great speed. The decision to refer the situation to the ICC was taken less than two weeks after Gaddafi’s crackdown began, and without waiting for the results of a Human Rights Council inquiry, announced just the day before. The ICC seems similarly keen to forge ahead: on 2 March, the ICC Prosecutor announced that, following a preliminary investigation, he believed that there was sufficient evidence to begin a full-scale investigation. The speed of this response is unprecedented: it normally takes months for a preliminary investigation to be concluded – in this case, it took only four days." 
The ICC's decision to investigate with regard to Libya, within 4 days of a referral, was indeed very fast. The situation within the Central African Republic, for example, was referred to the ICC Prosecutor in December 2004. Almost two and half years later, in May 2007, the ICC Prosecutor decided to open an investigation into the situation. One year later the ICC issued an arrest warrant. The most recent referral took 6 months before a decision to investigate.
Michael Ignatieff, a noted human rights activist and expert on the “responsibility to protect”, has also pointed to conclusions by some that the ICC had not just been politically instrumentalised regarding Libya but had even been weaponised as a precursor to military intervention by Western countries:
"The unresolvable question is whether the ICC indictment played a part, inadvertently or not, in driving the Libyan operation beyond its original UN mandate of protecting civilians into full-scale ‘regime change’." 
Despite an auspicious start, the International Criminal Court has singularly failed to live up to expectations.
The ICC has turned out to be one of the nastier manifestations of globalisation with what has so far been an exclusive focus on Africa. The Court's claims to international jurisdiction and judicial independence are institutionally flawed and the Court’s reputation has been irretrievably damaged by its racism, blatant double-standards, corruption and serious judicial irregularities.
The reality is that much of the International Criminal Court's 13 year existence has had little to do with justice. The ICC has emerged as a political court that has hitherto only served to further the interests of the Global North, and especially European foreign policy, at the expense of the Global South.
 The online Free Dictionary at <http://www.thefreedictionary.com/justice>.
 Lord Ahmed, Libya: Enough is Enough", The Guardian, 18 May 2011.
 "Libya: UN Backs Action Against Colonel Gaddafi", BBC News, 18 March 2011.
 “ICC prosecutor ‘almost ready’ for Libya abuse trial”, Agence France-Presse, 15 May 2011.
 Louise Arbour, “The Rise and Fall of International Human Rights”, Lecture by Louise Arbour, President and CEO of the International Crisis Group, on the occasion of the Sir Joseph Hotung International Human Rights Lecture 2011, at the British Museum, 27 April 2011, available at <http://www.crisisgroup.org/en/publication-type/speeches/2011/the-rise-and-fall-of-international-human-rights.aspx>.
 Michael Ignatieff, “We’re So Exceptional”, The New York Review of Books, 5 April 2012.