ICC Flawed By Design: The ICC A Neo-colonialist Racist Set-up With Undisguised Bias
03 June 2013
By Reason Wafawarova
THE African Union has finally found a bit of teeth as
the continental body seems ready to confront the
humiliating treatment Africa has suffered at the hands
of the International Criminal Court since the tribunal
was formed 11 years ago. Africa must simply exit the
racist ragtag court masquerading as an international
At its just ended summit the AU resolved to implore
the UN Security Council to refer the charges preferred
against president Uhuru Kenyatta of Kenya and his
deputy William Ruto back to Kenya's jurisdiction,
unequivocally citing unbridled bias on the part of The
Hague-based international tribunal. The Union has also
asked the UN Security Council to defer the proceedings
against President Al Bashir of Sudan, again
questioning the political motivations of prosecutor
The ICC Prosecution has responded by charging that the
African Union is disregarding the "unflinching
commitment to combating impunity and promoting
democracy, the rule of law and good governance
throughout the entire African continent in conformity
with its Constitutive Act."
The ICC Prosecution also says it "deeply regrets the
request by the African Union (AU) to the United
Nations Security Council to defer the proceedings
initiated against President Bashir of Sudan and Senior
State Official of Kenya."
AU chairman Hailemariam Desalegn said about the
continental body's decision: "The African leaders came
to a consensus that the ICC process that has been
conducted in Africa has a flaw."
He added: "The intention was to avoid any kind of
impunity, but now the process has degenerated to some
kind of race-hunting rather than the fight against
On July 1 the ICC will be exactly 11 years old.
Established as a permanent tribunal for war crimes the
tribunal has so far indicted about 28 individuals, and
they are all Africans.
The court has so far secured only one conviction —
that of DRC's Thomas Lubanga, who has since appealed
against both conviction and sentence.
It is either Africans are still so primitive that they
are the only race still committed to carrying out the
most egregious of war crimes or the international
justice system has just become a complete farce.
Many commentators have concluded that the fact that
all the indictees of the ICC are Africans is a clear
sign that there are political motivations behind the
focus on Africa. It is clearly a case of the ICC
versus Africa — with hardly any complementarity to
David Hoile has written significantly on the ICC, and
he just published a book titled "The International
Criminal Court — Europe's Guantanamo Bay."
He raises very important points about the ICC, some of
which will be pursued in this essay.
The ICC was welcomed by many as the panacea to gross
human rights violations, but without any doubt the
court has run into phenomenal controversy; and that
not without cause.
To Africa the ICC has clearly become an unsavoury
manifestation of the blindly embraced globalisation
phenomenon. Precisely this is because the tribunal's
prosecution is unquestionably exclusive — almost
permanently targeted at Africa.
Western countries made the point very clear that the
ICC was never from its inception a court designed to
prosecute Western citizens. Australia only signed the
Rome Statute after appending a declaration protecting
its own citizens.
Part of the declaration reads: "For this purpose, the
procedure under Australian law implementing the
Statute of the Court provides that no person can be
surrendered to the Court unless the Australian
Attorney-General issues a certificate allowing
It is quite curious that on January 2 2009, this
writer was notified by Australia's immigration
department that his right of stay would be cancelled
ostensibly on totally unfounded allegations of having
taken part in "war crimes" and "crimes against
humanity" as an active supporter of "Mugabe's
The notification came along with a voluminous copy of
the 1998 Rome Statute; categorically stating that
should the intention of the immigration minister to
cancel the right of stay succeed this writer would be
deported to Zimbabwe via The Hague. There was no
mention whatsoever of the office of the
Attorney-General, or any certificate of surrender.
Of course the slanderous charges collapsed hopelessly
at the slightest of legal challenges — not least
because the political motivation behind the minister's
move was unquestionably and blatantly apparent.
Australia had deported adult university students
deemed too close to Zanu-PF in 2007, and the same
activists behind this childish campaign were trying
their luck by misleading the immigration minister.
In the formative days of the ICC British Foreign
Secretary Robin Cook remarked: "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
The court essentially covers four crimes; namely
genocide, crimes against humanity, war crimes and the
crime of aggression. There are no agreed definitions
on genocide and the crime of aggression.
Professor Mahmood Mamdani asserts that just as
colonial expansionism was based on Western countries
claiming to be "protecting vulnerable groups," the ICC
is rooted on the philosophy that some superior race
from Europe has a big brother obligation to protect
vulnerable weaker peoples across the world.
The custodians of the big brother mentality
characteristic of Westerners are the NGOs hailing from
Western countries. The 1998 Rome Statute was
indisputably an NGO-driven initiative — and that
aspect of its genesis has always been its major flaw.
Firstly the bar for its approval to become
international law was lowered to only 60 of the 189
countries that were then members of the United
Nations. To make matters worse, the states that first
signed the statute were so small that the seven
smallest of the 60 signatories had no more than 345
000 people put together — a population far smaller
than that of a single county in most of the states in
the United States.
It did not matter that China, India, Japan and Russia
were all absent at the 1998 Rome Summit — a
development that means that countries representing 70
percent of the world's population are not party to
David Hoile says ICC membership represents a mere 27
percent of the world's population. It is quite hard to
take the court seriously in this regard, and Africa
seems to just realise.
Let us take a look at some of the flaws of the ICC.
Firstly the court was never really founded on legal
principles, it being a direct child of NGO activism.
When one looks at Article 13 (b) and 16 of the ICC
Statute it can be seen that special "prosecutorial"
rights are granted so that states can refer or defer
an ICC investigation or prosecution to the UN Security
This precisely means that the court's business can be
referred to the five permanent members of the Security
Council for determination, and three of these five
countries are not even party to the ICC Statute
The drafters of the Rome Statute decided to put two
clauses authorising political interference in the
affairs of a court meant to uphold the supremacy of
the law. This is exactly what the African heads of
state have just done — and their action must make
legal sense to the ICC prosecution, especially given
prosecutor Luis Moreno Ocampo's notorious personal
A legal provision that authorises political
interference in jurisdictional matters cannot be taken
seriously by anyone with half a brain.
The other flaw of the ICC is that it is logistically
reliant on the United Nations, itself a grossly
politicised entity falsely decorated as a family of
nations. The US can fund the trials at The Hague
through the UN purely to pursue its selfish
The ICC is essentially accountable to itself. There is
no known public entity to which this tribunal is
accountable apart from the UN Security Council — that
undemocratic and archaic monster so notorious for
passing resolutions that cause mass murders in weaker
The Clinton administration justified its decision for
refusing to ratify the Rome Statute by saying:
"We are also concerned there are insufficient checks
and balances on the authority of the ICC prosecutor
and judges. The Rome Statute creates a self-initiating
prosecutor answerable to no state or institution other
than the Court itself. Without such an external check
on the prosecutor, there is insufficient protection
against politicised prosecutions or other abuses."
President George W. Bush then passed the American
Service Protection Act, criminalising legal
representation that leads to an American being dragged
to The Hague, and authorising the invasion of The
Hague to rescue US citizens that might end up there.
As if to prove its own point the US has openly pursued
a political vendetta against Sudan's President Al-Bashir
through the Darfur Crisis — a conflict it clearly
backs in order to destabilise the Sudan.
As if The Hague Invasion Act is not brazen enough, the
United States has arm-twisted over 100 countries into
signing the so-called Bilateral Immunity Agreements (BIAs)
— agreements where countries commit not to hand any
American citizens to the ICC under whatever
In 2009 the US Secretary of State, Hillary Clinton,
explained how her country views the ICC. She said:
"Whether we work toward joining or not, we will end
hostility toward the ICC and look for opportunities to
encourage effective ICC action in ways that promote US
interests by bringing war criminals to justice."
Of course she was not talking about the Nato war
criminals that ravaged Libya in 2011, or the American
war criminals that have been killing Iraqis for fun
since 2003, or the war criminals killing innocent
women and children in Afghanistan. These are
atrocities carried out against the lesser people of
this world, and they by no means constitute war
India questioned the role of the UN Security Council
in ICC affairs and issued a statement saying: "The
power to bind non-state parties to an international
treaty is not a power given to the UN Security Council
by the UN Charter."
India also questioned the legality of the ICC at
international law, saying: "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." Sudan and Libya are not party to the ICC
Statute, but the leaders were indicted regardless.
India rightfully protested against the idea that the
ICC Statute fails to criminalise the use of nuclear
weapons and other weapons of mass destruction as a war
crime, and it called for the banning of nuclear
weapons through the ICC.
The investigations by Luis Moreno-Ocampo in Sudan and
Kenya have been questioned by many analysts,
especially his over-reliance on politically motivated
reports prepared by NGOs, as well as allegations of
bribing and paying witnesses. Some of Ocampo's
witnesses from Kenya have confessed to taking bribes
and being coached to testify against suspects.
If one takes this alleged unethical conduct by the
ICC's chief prosecutor into consideration, the
integrity of the ICC becomes quite questionable. It
irks more for the African when one looks at the
blatant blind eye paid by the ICC to Iraq, Afghanistan
The apparent bias of the ICC prompted Zambian
President Michael Sata to say:
"It's time that Africa should handle its own affairs.
We should not allow foreigners to be coming to
interfere with us. If you find the Kenyan president or
Zambian president is at fault with the Kenyan people
or Zambian people, let the Kenyan or Zambian people
deal with him, not somebody in The Hague. Why can't
they (Westerners) try their own relatives?"
It is actually plausible for African states to
unanimously pull out of the ICC with no intention of
ever coming back. The ICC is a neo-colonialist racist
set-up with undisguised bias.
Africa we are one and together we will overcome. It is
homeland or death!!
Reason Wafawarova is a political writer based in