There is no doubt that never before in the still very short history of the ICC has the relationship between the Court, on one side, and the African Union (AU), representing the African states, on the other, been as tense as it has been for some months. I will not speak as a Judge here, otherwise I would have to be very constrained, because I would have to represent the Court’s policy; I want to speak directly from my experience avoiding hypocrisy and diplomacy and I guess that this is probably what is expected of my remarks.
About the ICC one can say everything and its opposite. The Court can be criticized for its weaknesses and its flaws. The Court can be challenged for its choices and one can disagree with its decisions, but what nobody is allowed to spell out, what does not exist, neither inside the ICC nor in its proximity, are such things as: racism, humiliation towards African states, mishandling of complex African issues, manifestation of arrogance, political instrument targeting Africa and Africans, racial hunting, selective justice, neo-colonialism, or neo-imperialism.
All of us, men and women from all over the world, who on a daily basis work at the Court, each of us within his/her capacity, with their strengths and weaknesses, but with devotion and enthusiasm, we all feel offended by these false, gross, totally unfounded and stupid accusations.
Why can I confirm without any fear of contradiction that these accusations are without any foundation? Because since the first steps towards the establishment of the ICC, the African states and the African civil society have had a very central role, a pioneering role towards the establishment of a supranational criminal jurisdiction. Because no less than 14 African states (nearly a quarter of the requested number of states) contributed through an expeditious ratification of the Rome Statute to its entry into force only four years after its adoption. These 14 states were immediately followed the same year 2002 by another 7 African States. An explicit indication that Africa believed very much in the ICC and I really hope still, and, once we have overcome this crisis, increasingly does. Because hundreds of African lawyers, investigators, technicians and specialists from different States have contributed since 2002 and still contribute to the Court’s daily work. Because the Prosecutor of the Court is African. Because the Vice President of the Court is African. Because another three Judges are Africans. Because many other important posts at a managerial level in the Judiciary, in the Office of The Prosecutor and in the Registry are occupied by citizens of various African states, state parties and non-state parties, meaning that a significant part of the Court’s leadership is African.
Indeed, there are three facts which are referred to in support of the thesis of a neo-colonialist, neo-imperialist and racist Court. First, the fact that the seat of the Court is in The Hague and therefore in Europe. Secondly, the fact that over 60% of the Court’s budget is funded by EU countries and therefore these states would exercise a sort of hegemonic influence on the Court. Thirdly, the fact that to date the Court has investigated exclusively situations concerning African states. But, are these serious arguments on which to base accusations of such gravity?
The Court in The Hague? Well, simply no other country except the Netherlands was able or willing to take the political, the administrative, the organizational and the economic responsibility to give a seat to the Court. Indeed not a neo-imperialistic reason.
Most of the budget funded by rich States (by the way, beside the EU states not to forget Japan and Canada)? I find it bizarre how this economic element is used to demonstrate what does not exist, namely the unfounded claim that the Court exists to further interests of these countries.
Finally, the exclusively African situations. If this fact, which is an objective one, was symptomatic for the racism of the Court, the accusation of racism must be extended also to those African states (Uganda, the Democratic Republic of Congo, the Central African Republic, Mali, Cote d’Ivoire) that, through their self-referrals, demanded the Court’s intervention, as well as to those African and non-African states which in their capacity as members of the United Nations Security Council (UNSC) in the years 2005 and 2011 respectively referred to the ICC the situations in Sudan/Darfur and in Libya. What we should rather ask ourselves is: Are we really sure that Africa as a whole, as opposed to a part of its establishment in power, is convinced that the ICC is a racist and neo-colonialist Court? In other words, have the citizens of African States, all too often the victims of mass crimes, been involved in the discussion and in the opinion-making process? Have they had the opportunity to express their views and concerns on this matter?
The fact that I reject vehemently these absurd and offensive accusations, does not mean that other serious matters afflicting the Court should not be discussed. However, I believe it is important to speak about them with a constructive, positive approach, having at heart not the Court as such, which represents an instrument, but the extraordinary idea to set up this Court which determined the international community, with Africa in the front line, to fight against impunity for international crimes.
The problems affecting the Court can be summarised with reference to a few factors. The first is that the ICC is perceived and treated predominantly as an International Organization rather than as a Criminal Tribunal. This somehow distorts the priorities and the problems which are focused more on the international relations among and between States – and therefore on consensus, diplomacy, compromise – rather than on the typical problems related to criminal proceedings, at the core of which are the ascertaining of criminal responsibility, the assessment of the evidence, the protection of victims, etc.
In addition, the ICC suffers from various infantile diseases due to its very recent establishment as the first permanent international criminal judicial institution. I refer to the difficulties that the Rome Statute and the other legal instruments of the Court lay out as consequence of the dualism between civil law and common law, as well to the fact that particularly complex issues are often addressed following contradictory approaches. Suffices it to mention the uncertainties related to the victims’ participation in the proceedings. Not to forget the problems of a linguistic and logistical nature as well difficulties in properly understanding different cultures and models of behaviour.
Finally, the high costs and the lengthiness of the proceedings remain an issue. We are well aware of this and have engaged inside the Court in a lesson learnt exercise with a view to analysing the shortcomings and to find solutions and remedies. This said, one must also be very honest and conscious that also after the implementation of any such solution, international justice will continue to be slow and costly, if less so. Alongside and beyond criticisms and problems there is a considerable number of achievements, and of reasons to keep on working to achieve a really global implementation of the Rome Statute.
Above all, let me just mention one notable aspect: the concrete possibility to investigate and prosecute international crimes and to bring to justice the perpetrators of the most serious crimes, that normally go unpunished at the domestic level, is something of an extraordinary importance and it has, in perspective and as such, a potential preventive effect. Each deviation, delay, in pursuing this objective would be a defeat for the International Community as a whole.
As you can see, there is no need to seek refuge in deplorable expressions such as racism or colonialism, as it is undeniable that the picture of the Court is made of both lights and shadows. I have no doubt that these shadows can be eliminated by seriously working with devotion and a strong commitment to the basic idea of the Court and to the rule of law. But, there is also an enduring light brought by the hopes and expectations of the populations of all countries, a light that must be preserved, otherwise our society will face a step backwards denying many years of progress with a risk of barbarization.
As a matter of fact, criminal justice divides and will always divide the public opinion (and not only) when it comes to touch on “high level” interests. This happens at the national, and it happens as well and even more, as we can witness these days, at the international level. Or did someone really think that international justice, the ICC could have been immune from these divisions? But what is intolerable is the pretension by the so called “excellent suspects” to exercise their right to defence from the proceedings and not within the proceedings. Nobody can pretend to be legibus solutus and nobody can stay above the rule of law.
The only acceptable behaviour is the defence within the proceedings and through the legal provisions the international community has established. Fourteen years of judicial activity the Court has proven to be and to work as an absolutely independent criminal Tribunal not subject to any pressures from the outside.
Cuno Tarfusser, Judge, International Criminal Court
