by ALEX MEZYAEV
Dr. Alex Mezyaev
Dr Alex Mezyaev was a member of the defence team of President of Yugoslavia Slobodan Milosevic at the International Criminal Tribunal for the Former Yugoslavia (2003-2006). He is now part of the defence team for other defendants of this tribunal – Professor Vojislav Seselj and General Ratko Mladic.
Dr Mezyaev is a professor and Head of Department of International Law, Law Faculty, University of Management TISBI, Kazan, Russian Federation. He is also the Editor-in-Chief of Kazan Journal of International Law and International Relations.
Comrade Alex Mezyaev is also a member of the Communist Party of the Russian Federation (KPRF).
He may be contacted at email@example.com.
This article was recently published in African Communist First Quarter 2016
The International Criminal Court (ICC) was created in 1998 in terms of the Rome Statute, with the purpose of prosecuting the most dangerous international crimes – crimes against humanity and war crimes.
[Article 1 of the ICC Statute says that the Court is a “permanent institution and shall have the power established to exercise its jurisdiction over persons for the most serious crimes of international concern”.]
After more than 15 years of activity, this Court has not only failed to fulfil its purpose, but is promoting a totally different agenda. The latest scandalous events provoked by the ICC and some NGOs in South Africa compels us to analyse what the real agenda of the ICC is and the location of African countries therein.
We will face serious problems understanding the real agenda of the ICC, if we make this analysis within the existing academic lexicon. For example, the very name of ICC as an international court is misleading in understanding its true essence and role. Before we start this analysis we need to resolve certain methodological matters and to suggest a more correct definition for the court itself as well for the system that it operates in.
THE RISE OF SUPRANATIONAL ENTITIES
The 21st century is far more complex than the 19th and 20th centuries. One of the main elements that inform the complexity is the appearance of the new subject of management on the international stage.
Before the end of the 1980s there were two main entities on the international stage – states and international organisations. International organisations were collective representatives of the will of certain states and groups of states. Even when an international organisation acted in its own name, it represented the collective will of its member states.
After the 1980s human civilization witnessed the emergence of totally new entities. None of them claim to be new, and they even try to camouflage themselves under old names, but the radically different nature of these entities requires that they be defined differently.
For example, the creation of the European Union marked the appearance of an institution that may hold a separate (and sometimes totally different) position on the matters of economic or political questions, to member states of the EU. Because of this, the European law (EU law) is more correctly called, supranational law not international (or regional) law. This term rightly denotes that this law was created not by member states but by a supranational institution (like the European Commission or European Court of Justice).
There is also at least one other entity or actor of world politics that does not fit into either the international nor supranational levels. These two last levels are both concerned with the “nation”, though showing different positions towards it. This other level of world politics has no functional connection with nations (states) and thus may be called “extra-national”. In fact it is better to use the term “global”. This term reflects the essence of this level very well, showing the global character of the entities and its agenda. The
actors at global level do not represent the interests of any state or its population as a whole, but have their own interests. Moreover, these interests may contradict the interests of particular states and their populations.
CHALLENGING THE CONCEPTUALISATION OF THE ICC
The early 1990s was characterised by the formal institutionalisation of global power. The analysis of the establishment of these institutions is informed by an analysis of the activities of the ICC and other international courts and tribunals.
We start this analysis from what may be called “strange facts”. What makes them strange is that such stories are not what we would expect from an institution of the highest integrity and highest quality, which the ICC is claimed to be and as it is indeed widely regarded. Nevertheless these episodes are indeed from the ICC practice.
• At the very first trial of the ICC (Lubanga trial, DRC situation), the first witness confessed right in the courtroom that he gave false evidence and that he was taught to do so by the prosecution. The court did nothing to investigate the case.
• In the trial of Germain Katanga (DRC), the prosecution did not prove any of the counts that were brought against the accused. Instead of acquitting the accused, the court changed the counts themselves and found Katanga guilty on these – the court’s imposed counts.
• The President of Cote-d’Ivoire, Laurent Gbagbo, was imprisoned by the ICC for more than four years without trial. He spent almost 2.5 years in prison even without confirmation of charges. In any local legal system no person could be detained without confirmed charges. After the first hearings for confirmation of charges the majority of judges agreed that there was no case. But instead of dismissing the case, the judges decided to give the prosecution “more time to collect more evidence”. After the second attempt, another judge finally confirmed the charges, but the decision to prosecute was adopted by the majority of two to one. The dissenting judge still claimed that there was no case. When the defence tried to appeal this decision at the
appeals chamber, the same judges prevented the defence from doing that.
• In the case against the President of Kenya, Uhuru Kenyatta, and others (Kenya), the prosecution withdrew the case against Kenyatta and his co-accused after the charges were confirmed by the court. The problem with this situation is that the prosecution confessed that there were no witnesses in the case. The disturbing question is how did the judges confirm the charges when there were no witnesses?
• In the case against Muammar Gaddafi (Libya), following the assassination of the accused, the court simply “terminated the proceedings”. We have seen a lot of so-called contempt cases when certain individuals were put on trial because of the interruption of the integrity of the proceedings, for example, the cases of bribing witnesses or refusal to give evidence, etc.
But what could cause more damage to the integrity of the proceedings than the assassination of the accused?
Notwithstanding the fact that the killing was filmed and criminals may be well identified, no investigation or
contempt cases were initiated.
• During the trial in the case of the former Vice-President of the Democratic Republic of the Congo, Jean-Pierre Bemba (DRC) his entire defence team, with the single exception of one non-African member, was violently arrested.
When facing any “strange” fact, we are in reality confronted with the methodological question of whether it is a bad fact or a bad concept. Why should the “bad” facts enumerated above draw our attention at the conceptual level?
They should draw our attention because they cannot be explained by mistakes and negligence. They also cannot be explained if we consider the ICC as an international institution of the highest degree of legal standards and integrity. This means that these incidents cannot be explained in the established conceptualisation of the ICC as an international court and as a guardian of law and justice. And thus we have to revisit this official concept.
These bad facts are not an exception; they are the rule. We also have the same bad facts not only in ICC practice, but also at the conceptual level of the ICC as an institution. Here are some examples.
According to common sense, judges of an international court must be the best judges that the world ever produced. Unfortunately, common sense is not the best way of understanding the modern world, because according to article 36 (b) of the ICC Statute, the candidate for election to the Court shall have established only their competence in criminal law and procedure, and the necessary relevant experience.
[As article 36 says, “relevant experience” means whether as judge, prosecutor, advocate or in other similar capacity (!), in criminal proceedings.]
This sounds reasonable though not strict enough. For example, to be an ICC judge, the candidate has to possess high moral character, and be an expert on law of recognised competence in international law. As we see, in the ICC, high morality is not a necessary and recognised competence that can substitute established competence in relevant areas of international law. The bad fact about ICC judges is that many of them do not have any judicial or even court experience.
A second, and even more disturbing bad fact, is that there are some judges in the ICC who do not have legal education at all. This sounds really unbelievable, but can easily be verified from the official CVs of the judges. Some of the examples are Judge H Kaul (Germany) and Judge K Ozaki (Japan).
[The official website of the ICC uses a misleading way of reflecting the education of judges, for example covering
the lack of legal education of some judges under waterfalls of words about their experience.]
There is another special aspect of this problem that we are not going to analyse in detail but just mention.
This is a problem of states that voted for candidates who do not possess legal education and the attitudes of candidates for the position of ICC judges. Some of them wish to be ICC judges for dubious reasons: “I wish to be elected a Judge of the ICC as I am convinced that I can make a valuable contribution to the development of international criminal law and justice.”
[From the response of Geoffrey Andrew Henderson to the Coalition for the International Criminal Court’ Questionnaire. In 2013 G.A. Henderson was elected as ICC judge.]
There is a problem in such an attitude, the ICC Statute requires that the judge applies law, not develop it. But this revelation from some judges shows that the “developing” (read: changing) of international law is a real agenda of ICC.
There are cases where almost all the human rights of the accused are violated in the ICC. For example, some accused are almost completely denied the right to public hearings. This right is assured in all universal and regional human rights treaties. Article 14 of the Covenant on Civil and Political Rights (adopted by the United Nations on 19 December 1966), for instance, states that in the determination of any criminal charge, everyone shall be entitled to a fair and public hearing by a court of law. But in the case of Jean-Pierre Bemba, 30 of the 40 witnesses were so-called secret witnesses, meaning that their identities were hidden from the defence until it was impossible to collect any information about such witnesses. This is an intentional policy of the ICC, denying the accused the ability to exercise the right
to prepare for any meaningful defence.
During a public hearing in the ICC, Judge Cot said to the accused, M Chui: “Accused, the fact that we acquit you does not mean that you are innocent”. This is a totally new concept of the rights of the accused. According to the International Covenant on Civil and Political Rights, everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
According the ICC, even when acquitted you are not regarded as innocent.
The human rights issue is one of the most serious issues in ICC practices. The violation of the human rights of the accused helps one to understand the reality of the ICC. ICC cases are unsound. They are all based on political considerations and thus cannot be proved with the use of law. The only way to “prove” such cases is to deny the accused and defence any rights.
HOW CAN WE EXPLAIN ALL THESE BAD FACTS?
The official aim of the International Criminal Court is enshrined in Article 1 of the Rome Statute. It says that the ICC is established “to exercise jurisdiction over persons for the most serious crimes of international concern”. Thus the prosecution of the most serious international crimes is proclaimed as the main aim. But the practice of the
ICC shows that this aim is not achieved.
The situation in Cote-d’Ivoire was brought to the ICC in 2003, but the Court did nothing until 2011. The ICC acted only eight years later in the context of a new situation, the forcible removal of President L. Gbagbo. And in this context the ICC acted really quickly and issued an order of arrest against Gbagbo within several weeks.
The UN Security Council brought the situation in Libya to the ICC when NATO forces were preparing to invade the country. At that time Libyan citizens had the highest social guarantees. Today Libya is totally destroyed, its statehood is under serious doubt and more than four years after the coup, thousands of refugees are still leaving the country.
The ICC issued no indictments for those who ruined the state. It issued the indictments against those who built that state.
The situation in the Central African Republic (CAR) was brought to the ICC in 2005, but the only case within this situation is a case against former Vice-President of the Democratic Republic of the Congo, Jean-Pierre Bemba.
Bemba was indicted because he sent his troops to support the then legitimate CAR President Ange-Félix Patasse, in response to his official request to help him to suppress an armed rebellion. Now the legitimate CAR President is overthrown, the country is ruined and the ICC produced no indictments against those who did that.
In the Ugandan situation, the ICC did nothing except publish vague orders of arrest for three persons. ICC investigations in Mali and Nigeria did not stop the suffering of people from al-Qaeda’s or Boko Haram’s terror. The ICC openly sided with these organisations, warning Malian and Nigerian leaders that they may end up in The
Hague if not assuring the human rights of these terrorists while fighting them.
So where has the ICC brought peace? Where has it brought justice?
International crimes are committed in front of the ICC but it has very little or no interest in them. At the same time the ICC is actively involved in certain conflicts and it would be difficult not to notice that in many cases this is connected with one side of the conflict.
THE TRUE PORPOSE OF THE ICC
The official conceptualisation of the ICC as a guardian of international law and justice is simply not proved in practice. But what is the real ICC agenda?
The real intention behind the creation of an international criminal court of justice is to create the system of institutions of global power that have at least two main authorities:
• The authority to remove the heads of states; and
• The authority to transform the international rules.
This idea is best implemented by international courts: the removal of heads of states needs to be sanctified in the name of international law, thus the norms of international law need to be changed. The new system of international justice was assigned with these tasks.
The first international criminal tribunal as part of the global power institutions was the International Tribunal for the Former Yugoslavia (ICTY) in 1993 and International Tribunal for Rwanda (ICTR) in 1994. These tribunals successfully probed the idea of removal of heads of states (President of Yugoslavia Slobodan Milosevic, Prime Minister of Rwanda Jean Kambanda and others). At the same time these tribunals started to change international law: some international treaties started to be “corrected”, some were disregarded and some norms were created by these very tribunals. After a successful inquiry, the international criminal tribunals were mushroomed en masse: Special Court for Sierra Leone, Special Tribunal for Lebanon, Special courts for Cambodia, Timor-Leste and Kosovo. The creation of the ICC must be understood in the context of that intent and the realisation of the system of international criminal justice.
REMOVAL OF HEADS OF STATE
To implement the idea of removal of heads of state it was important to personalise the heads of states as private persons. This task was very well done with the use of mass media. One example was the insertion of the name “Saddam” instead of Hussein or President Hussein etc.
This cliché still works. Let us remember how we called the case against President of Sudan in South Africa in June 2015.
Mass media imposed on us the title “al-Bashir case” and all society, including lawyers, happily accepted it. But the wrong name, which was intentionally imposed on us, changed the essence of the case: it was brought down from a case about sovereignty of Sudan to a personal case against an individual.
This trick of personalisation of the heads of states was implemented via international criminal justice, because criminal justice has personal jurisdiction. All these courts and tribunals were directed at one
operative aim, the indictment and removal of the heads of states. ICTY removed and indicted the President of Yugoslavia, Slobodan Milosevic, and former President Milan Milutinovic. It also indicted four more heads of states (though unrecognised) – Radovan Karadzic and Biljana Plavsic (Presidents of the Republic of Srpska), Milan Martic and Milan Babic (Presidents of the Republic of Serbian Kraina). In
addition, they indicted and removed all political and military administrations of Yugoslavia and then Serbia.
The Special Court for Sierra Leone removed President of Liberia Charles Taylor. The Tribunal for Rwanda indicted former Prime Minister of Rwanda Jean Kambanda. Finally the ICC indicted the President of Cote-d’Ivoire, Libyan leader Muammar Gaddafi, Kenyan President Uhuru Kenyatta and President of Sudan Omar al-Bashir.
The ICC prosecutor made it clear that the highest officials of Mali, Nigeria and Burundi may be next to be indicted and removed as leaders. This policy of unnamed suspects is another way of controlling the leaders of some states. Moreover, international criminal tribunals, including the ICC and ICTY were used as direct weapons of international crimes. Three examples of that:
• The situation in Libya was brought to the ICC by the UN Security Council in February 2011, and processed too fast to have conducted any meaningful investigation. Over a few weeks, the ICC prosecutor prepared an order of arrest against the Libyan head of state, President M. Gaddafi. This order of arrest was issued during the aggression of NATO against Libya. Thus the ICC acted as a legal instrument of war. (It is worth mentioning that one of the judges in the case against Gaddafi was an Italian citizen, and Italy was one of the states taking part in NATO aggression against Libya.) Thus the ICC is violating the elementary principles of independence of the judiciary).
• In April 2014 the ICC’s jurisdiction was recognised by the Ukraine. The problem with this decision is that the request was sent by an improper subject. People who claimed to be “the government of Ukraine” had no legal justification for that claim. Notwithstanding, the ICC agreed with that acceptance. It is difficult to understand how an international court could work with a government that assumed power illegally through a bloody coup. The main task of the ICC is to check the legality of the subject appearing before it. To understand why this agreement constitutes taking part in a crime, we have to look at the details of the acceptance of jurisdiction. The illegal government of Ukraine accepted the jurisdiction only for the purpose of prosecuting the members of the overthrown government! Accepting such a jurisdiction
from an illegal junta, the ICC appeared as a weapon of the coup d’etat committed in Ukraine.
• In 1999 during the aggression of NATO states against Yugoslavia, the ICTY issued an order of arrest against the president of the country. Notwithstanding the fact that there was no investigation, the ICTY prosecutor issued an indictment against Milosevic. Thus, the ICTY was a direct weapon of the war.
VIOLATING EXISTING RULES OF INTERNATIONAL LAW
The ICC practice shows that some of its cases have gravely violated fundamental principles of modern international law: the principle of equality of states; the principle of consent of states; and the voluntary nature of international law. In this regard, special attention should be drawn to the situations in Libya and Sudan (and subsequently to all Sudanese and Libyan cases). The analysis shows that these situations were referred to the ICC through violation of international law. The gravity of these violations and their obvious nature allows us to conclude that it was made in order to destroy the very base of modern international law.
The situation in Sudan was referred to the ICC by the UN Security Council in March 2005, and the situation in Libya in February 2011. The problem with these referrals is that they were not taken in
accordance with international law. The main question that arises in this regard is on what legal basis did the Security Council act?
In Resolution 1593 (2005) the Security Council was hesitant to name any exact article of any exact legal document that informed its decision. It only said that it was “acting under Chapter VII of the UN Charter”. Reference to a “chapter” is quite disturbing from a legal point of view, because it shows that the Security Council indeed could not name any exact law relied on in taking its decision. Legal decisions must be based on specific articles and even clauses of articles of a treaty, not on whole chapters. The vague reference to the chapter as a whole is itself proof of the absence of any legal basis for this decision.
It is interesting to note that the ICC Pre-Trial Chamber attempted to mitigate the legal impotence of the Security Council and claimed that the Security Council acted pursuant to Article 13b of the Rome Statute. This attempt brought even worse legal consequences than the Security Council’s impotence, because the powers of the Security Council are regulated by the United Nations Charter, not by any other treaty. The attempt to claim that it based its powers that are supposedly prescribed in another treaty and not UN Charter is scandalous and illegal. The Security Council does not have the right to use powers granted it by the UN Charter – particularly with respect to a state that is not a party to the Rome Statute!
The UN Security Council was established by the UN Charter and must act on that basis. The UN Charter does not give the Security Council the right to refer situations to the ICC. This is the only possible conclusion if we take into consideration the principles of international law. Such a power is too serious to be considered as “implied” and not to be included in the Charter as the legal basis for the Security Council’s actions. Thus, in the absence of any amendments to the UN Charter itself, the Security Council does not have the right to refer situations in states. This is especially so in relation to the states which are not party to the Rome Statute. Members of the United Nations have given their consent only to those powers of the UN Security Council, which are enunciated in the UN Charter, not to powers expressed in other treaties. The UN Charter is one international treaty and the ICC Rome Statute is completely another treaty. They have different obligations and different state-parties.
There are many other legal defects in these “referral” cases. For example, paragraph 1 of UNSC Resolution 1593 (2005) says that it is referring the situation in Darfur “since 1 July 2002” to the ICC Prosecutor. But the very resolution was adopted on 31 March 2005!
On what legal basis does the Security Council claim the right to apply criminal law retrospectively? Where is it stated that the Security Council has such a power?
It is totally contrary to common principles of law.
Let us imagine that after the Security Council referral of Sudan the country would sign and ratify the ICC Statute. What would be the legal effect of Article 11 of the ICC Statute, which regulates the temporal jurisdiction of the ICC?
Paragraph 1 of this article states that, “The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.”
Paragraph 2 of the same article says: “If a state becomes a party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that state, unless that state has made a declaration under article 12, paragraph 3.”
And what about Article 24 which specifies that “no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.”?
Obviously the decision of the UN Security Council is discriminatory against Sudanese citizens indicted by the ICC because different rules apply to them than to citizens of states which have signed the ICC
statute. Many international human rights treaties specifically prohibit discrimination in criminal proceedings. If we accept that it is possible to initiate proceedings against a state which is not a party to the ICC (whether through the UN Security Council or by any other means) then we must accept the legality of discrimination. But it is absurd to say that an international treaty may legalise such discrimination. It is difficult to believe that states decided to discriminate between accused persons from a state party and accused persons from a non-state party. Such discrimination would be contrary to the most basic human rights. If a thesis leads to an absurd conclusion, then the thesis should be abandoned. Thus is must be concluded that without the amendment of the UN Charter, any referral to the ICC of a situation in
a non-signatory state is not possible.
There are many other legal problems with these “referral” Security Council resolutions. For example, what is the legal value of a decision forcing a state to be obliged by a treaty of which the Security Council
members are not even signatories themselves? [USA, China, Russia]
In March 2005, only nine of the 15 member states of the Security Council (and three of the five among permanent members) were state-parties to the ICC Statute. What is the legality of a decision taken by states that are not parties to a treaty to force another state to be a party to it, or to be bound by obligations under it?
Even if all the members of the Security Council had been state parties to the Rome Statute then this would not have changed the illegality of their decision. This is absolutely illegal, because it violates the very foundations of the international legal order.
The activity of the ICTY clearly shows that when it was necessary to convict a person for political reasons, it deviates from existing international law and creates its own law. One such example is the case
of former President of Yugoslavia, Slobodan Milosevic.
To convict President Milosevic by any means, the ICTY inserted into practice the concept of the so-called “joint criminal enterprise” (JCE). The third category of this JCE allows the court to convict anybody, including the persons who not only have not taken part in the crimes, but have not even known about the commitment of these crimes!
The International Criminal Tribunal for Rwanda (ICTR) violated the convention on the prevention of the genocide, which carried the requirement to establish the specific intent, and decided that there is no need to establish the specific intent, and that it would be possible to convict a person for genocide if intent was not established. This tribunal also “corrected” the genocide convention, added to it new features with the sole purpose of convicting before the tribunal. The same “correction” of existing international law was made by other international tribunals, like the Special Tribunal for Lebanon or Special Court for Sierra Leone. Thus we may detect another common direction of the activity of the international tribunals – the destruction of the already existing international law on the one side and the creation of new international law on the other side.
Needless to say, international courts do not have the power to destroy existing law, nor to create new law. It could only apply law as it already exists. As we see, it is not the case with ICC and other international courts.
Another example is the practice of “proving” cases with the use of plea-bargaining. Officially it looks as if the accused pleaded guilty and gave a testimony about his crimes. The reality of these guilty pleas is very different.
First of all the accused is not giving his own testimony but is obliged to sign a text of “facts” prepared by the prosecution. The accused receives assurances that sentencing will not be harsh. The accused is then obliged to give testimony against his co-accused. Thus the plea bargaining procedure is not aimed at
establishing the truth, but at convicting specific accused using the testimony of another accused who was incentivised to plead guilty.
The practice of several international criminal tribunals (especially the ICTY and ICTR) shows that plea-bargaining is used with pressure. The whole practice of the ICTR was based on a false plea-bargaining with the Rwandan Prime Minister, Jean Kambanda. The whole Srebrenica case in the ICTY was based on plea-bargaining with Dražen Erdemovic and Momir Nikolic. In this context the ICC’s indictment against Simon Gbagbo (wife of President Laurent Gbagbo) is a clear attempt to resolve the case of President Gbagbo without trial.
Another serious derogation of international law is a derogation of human rights law by the international tribunals.
For example, the accused of international criminal tribunals are denied the right to choose their counsel. This denial has a very “good” explanation. Only the “approved” (by ICC and other courts) counsel may defend these accused, thus guaranteeing that the counsel will not go too far in establishing the truth.
The only case when the ICC accused was able to get the defence counsel of his own choice was Jean-Pierre Bemba (Central African Republic/DRC). That was secured by the ability of Bemba to finance his counsel himself (which is a unique case in the history of the international criminal justice). But in November 2013 Bemba’s whole defence team was arrested and put on trial. Officially the reason for this arrest was the attempt of defence to prepare a false witness. At the same time the sudden arrest of the defence counsels of Bemba was conducted just some hours before the defence was about to present evidence of how the ICC prosecution bribes witnesses.
The bribing of witnesses and presenting of false witnesses is not an extraordinary situation in international criminal justice. False witnesses are a rule at this system. In the Vojislav Seselj trial at the ICTY more than 20 witnesses gave sworn testimonies that they were threatened by the prosecution to give false evidence against the accused. The Court took no action against the prosecution. Moreover the
accused was prevented from presenting his defence case – a unique case in history of international criminal justice.
In the Milosevic trial, one prosecution witness confessed that he was pressed (and even tortured) to give a false testimony against Milosevic. The court did not take any action, not even to investigate the claim.
The synthesis of ICC activity with activity of other bodies in the system of international criminal justice is also important because of the following: there are the same staff working in these institutions (running from one court to another and sometimes working in different courts at the same time!); there are the same judges in these courts (running from one court to another and sometimes working in different courts at the same time!); the courts use their practice as a way of creating law, thus the ICC is citing the decision of ICTY as a proof of its own legality.
AL-BASHIR AND SOUTH AFRICA
In June 2015 the ICC tried to force the South African government to arrest Sudanese President, Omar al-Bashir who attended the African Union meeting in Johannesburg.
South Africa’s North Gauteng High Court issued the decision obliging the South African government to arrest President al-Bashir, which was not implemented. Unfortunately the discussion on this matter was limited by the very narrow approach that was taken by the North Gauteng High Court, but only to some extent, because nothing prevented the court from considering other relevant issues.
Firstly, the questions of why the elementary matter of jurisdiction was not resolved must be raised.
Another question arises when we are facing very strange position of the court that the obligation to co-operate necessarily means the obligation to arrest, and to do this automatically. It is not our aim to analyse the arguments of the North Gauteng High Court.
What we would like to highlight nevertheless are those circumstances that escaped any attention of the mass media and even judicial institutions on the global level – that is, the behaviour of ICC.
It must be noted: the artificial exclusion by the ICC of the majority of judges from the adoption of the decision to force South Africa to arrest President al-Bashir. The decision was adopted by a single judge. But the “al-Bashir case” is assigned not to a single judge but to a full chamber constituted by three ICC judges.
Why did the other two judges not part take in its adoption?
The formal answer to that question is that the decision was taken urgently. But this answer does not hold water, because the urgency of the decision was clearly made up by the intentionally late application by prosecution.
Information about the Sudanese President’s visit to South Africa was available to the ICC months in advance but the ICC prosecution decided to apply for a request to arrest just some hours before this visit. The reason for this is clear: to manufacture “urgency” and thus legitimise the exclusion of two judges from the decision-making process.
The other question arises with the attempt of the ICC (in reality – of one judge) to force South Africa to arrest the head of state who was enjoying immunity according to international law. Such an attempt was not legally supported. Any reference to Article 27 of ICC Statute is not convincing. This article says that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”.
This article gave some commentators the wrong impression to claim that heads of state do not have immunity anymore.
In fact a careful reading of this article shows that it is only directed to the ICC Prosecutor and other ICC officials, and not to states. The article relates only to the relations between accused and the Court. As concerns states, the immunities of heads of states and governments are regulated by the norms of customary international law and treaties. These treaties clearly obliged the states to assure the immunities
of the highest state officials.
The so-called al-Bashir case is not about Omar al-Bashir in his personal capacity, but about the President of Sudan, that is, about state sovereignty.
The attempt by the ICC to force South Africa to arrest al-Bashir was a case against South Africa, forcing the state to a position where it would destroy the very base of current international law – state sovereignty and equality.
The clarity of this situation raises the legitimate question of why the ICC engaged in that provocation against South Africa. Now, knowing the consequences (North Gauteng High Court decision, it is supposed non-respect by South African government, the impeachment move against South African
President etc.) we may suggest that all this was made up with the sole purpose of destabilising the Republic of South Africa.
The current system of international criminal justice was created by the global powers with aims that are too far from the officially proclaimed goals. The real agenda of the ICC is the sanctification of crimes committed by the global powers and the creation of new international rules – possibly better described as global rules, because there are no ways for nations to be entities of these rules. In the plan of global power, nations must only be objects of these rules.
For now, there are two separate systems of international law. The first is the current international law that may be called relatively progressive international law. It is the result of the developments of the international system from 1945. The regime of this law is characterised by the aim (common interest for all members of the international community) and the way of creation (made by all equal members of international community). The other system is regressive international law that was created mainly through international courts and tribunals. The regime of this law is characterised by the same features but in negative terms: it is created by only certain “chosen states” and in their interests.
Step by step this second system of regressive international law is becoming bigger and stronger. The modern world is more complex than in 1945. To understand the modern world we need at least proper definitions that correctly reflect the essence of objects and phenomena. In our opinion we have difficulties in understanding the true picture of the modern world, among other things because of the incorrect definitions and even lack thereof. It is interesting to note that the very lack of definitions sometimes acts as the basis for the non-existence of certain entities or phenomena in our minds.
One of the best examples in this regard is the word “international”. We refer to international treaties, organisations, operations, politics and so on. Sometimes the use of this word is an obvious abuse, like the
expression “international judge”. The idea of a judge acting as a representative of an international community is clear, but does it have anything to do with reality?
The judges are elected by other states but nominated by the state of their citizenship. In some cases the election process is pure hypocrisy, when there is no competition between candidates and their number is the same (or nearly the same) as the number of places. In this situation we are facing not “international” institutions, but rather a group of foreign representatives.
While we have some treaties and organisations (like the United Nations) that could be called truly “international”, we still have institutions that clearly do not fall within that definition. These institutions are the International Monetary Fund, World Bank, NATO, European Union and the ICC. We have to notice the attempt made by some researchers to correct the situation and to introduce the new definition that better reflects the situation, namely the introduction of the word “supranational”. This attempt is indeed very useful in defining the true character of the entities like EU institutions, but it is not enough. The international institutions were created to represent the interests of the community of all states and for achieving common values and goals. Supranational institutions constitute a new phenomenon where the interests of such institutions may not necessarily coincide with the interests of member states. In such institutions the states sometimes are not the decision-makers.
Nowadays the dichotomy “national-international” does not properly reflect the real situation. Even the introduction of the “supranational” or “transnational” levels does not change things. National, supranational and international are all “nation-centric” phenomena. But institutions like the ICC are “contra-nation” phenomenon. This level of politics reflects the interests of a subject not connected with
any state or group of states, though based in certain states. The interests of these entities do not coincide with interests of states or of the international community as a whole; moreover, sometimes they may even conflict with them. The strength of the entity is several times greater than the power of most of the states. And as a de facto matter we are witnesses to the existence of certain institutions that assume this new level of politics. We suggest that this level may be called as “contranational”, stressing its centrifugal character, where the centre is a nation.
Thus, we argue that the ICC is an institution at the contranational level of politics. Its real aims and policy may only be understood in this context. The ICC was established with the main purposes to create
a universal judicial institution for controlling the highest national and international levels of politics.
The main means of such control to be exercised is through the power to remove disobedient heads of state and the destruction of existing national and international laws and replacing them with new (regressive/repressive) international laws. Thus “contranational” law. Stopping this process of destroying
the international system and the grabbing of power by “contranational” entities is an essential task of the United Nations.