The economic and moral hazards of the International Criminal Court

By Dan Steinbock        

Dr Dan Steinbock is the founder of Difference Group and has served as research director at the India, China and America Institute (USA) and visiting fellow at the Shanghai Institutes for International Studies (China) and the EU Center (Singapore).    

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As the Philippines is withdrawing from the International Criminal Court, ICC is blaming the Duterte government. In reality, the withdrawal is still another example of the erosion of the ICC’s credibility— of its failure at judicial independence and gross bias against the emerging world.

Allegations against the president

In February, the ICC said it was investigating allegations that the Philippines president had committed “crimes against humanity” by facilitating extrajudicial killings and other rights abuses in the war against drugs. These charges, which have often relied on flawed data, have been pushed by two Duterte critics. Known for his coup efforts, controversial senator Antonio Trillanes has spent much time in Washington and Europe to gain support, while the obscure Jude Sabio has gained notoriety as a hit man lawyer. What’s not known is who funds the two and why leading Western media companies have bought their stories with hardly any source scrutiny.

In Manila’s view, the ICC can only investigate criminal cases if domestic courts are unable or unwilling to do so. Moreover, Philippine polls indicate that more than 70 percent of Filipinos stand behind Duterte and are more satisfied with his government than any of the previous ones.

Yet, in March, the controversial UN’s High Commissioner for Human Rights (HCHR), Prince Zeid Ra’ad al-Hussein, joined the ICC debacle saying that Duterte needed a psychiatric evaluation. During Zeid’s tenure, the HCHR has repeatedly been accused of efforts at domestic policy intervention, which impinges on state sovereignty. As Zeid played a central role in the founding of the ICC from the mid-90s to 2010, his statement triggered valid concerns in Manila about the institution’s neutrality.

The withdrawal of Southeast Asia’s most rapidly-growing economy from the ICC would not be either the first or the last of its kind. The credibility of the ICC is under erosion. The case of the Philippines is just the latest nail in the coffin.

Targeting the poorest and the weakest      

For a decade or two, the ICC has suffered from an odd inclination to go after the poorest countries in Africa, which has suffered the worst and longest from colonial massacres and plunder—and still does. The prosecution of President Uhuru Kenyatta led to the Kenyan parliament’s call for withdrawal from the ICC and the call for more than 30 African member states to withdraw their support.

The frustration led to a special African Union (AU) summit in 2013 in which Uhuru accused the ICC of being “a toy of declining imperial powers.”

ICC Prosecutor Luis Moreno Ocampo charged Uhuru as an indirect co-perpetrator in the violence that followed the 2007-08 Kenyan crisis. Uhuru is a popular, highly-regarded politician and the son of the famed anti-colonial leader Jomo Kenyatta. After a three-year juridical chaos, the ICC charges were dropped in March 2015 for lack of evidence. If the case undermined the ICC’s credibility, wasted resources, and caused gratuitous political turmoil, why was then Uhuru targeted?

Certainly, his political opposition hoped to benefit from his demise. It was led by Raila Odinga and his Orange Democratic Movement, which was reportedly named after the Ukrainian “Orange Revolution” as billionaire George Soros’s Open Society funded the pro-Odingakey NGOs, and Kenyan think-tanks to stop President Uhuru from the 2013 general election due to the ICC trials. As the ICC process began to penalise Kenya’s political leadership, economic growth almost halved to 4.6 percent in 2012 stabilising thereafter but at a significantly lower level than in 2010.

In the past few years, many African leaders have reproached the ICC of “mishandling complex African issues,” and several countries, including South Africa, intended to withdraw from the ICC. In addition to President Uhuru, almost 40 individuals have been indicted by the ICC, including Ugandan rebel leader Joseph Kony, Sudanese President Omar al-Bashir, Libyan leader Muammar Gaddafi, Ivorian President Laurent Gbagbo, and Congolese Vice-President Jean-Pierre Bemba.

Many cases suggest a pattern of sequence and orchestration: Promising development, political destabilisation in the name of “democratisation,” financial speculation, new leaders, weaker development.

ICC’s compromised former prosecutor

Since fall 2017, even Ocampo’s ICC role has elicited questions. While his legal expertise is highly regarded, his ties to Soros-supported organisations stem from the early 1990s, when Soros began to infuse funds into a real estate conglomerate (IRSA), a prominent backer of Ocampo’s NGO in Argentina. In the mid-90s, Ocampo began to work for Transparency International, a corruption watchdog that has been criticised for bias against developing countries, overseeing work on Latin America. A decade later, he participated in a roundtable by Soros’s Open Society called “Restoring American Leadership – the International Criminal Court”.

When the UN Security Council assigned Ocampo the task of investigating war crimes in Libya, which was soon hit by airstrikes of France, Britain, the US and other countries, Ocampo reportedly shared confidential information about ongoing investigations with a party to the conflict—the French foreign minister’s cabinet chief.

Ocampo indicted Gaddafi and his son Saif al-Islam for war crimes in 2011 before leaving his job at the ICC for a lucrative career in private practice. According to a French investigative website Mediapart and a Spiegel team, he then agreed to a contract worth $3 million over three years, plus $5,000 a day, to “protect” and advice an influential Libyan oil billionaire Hassan Tatanaki who had close links with the Colonel Muammar Gaddafi and was deeply involved with the Libyan civil war; Ocampo used insider information to protect his client from possible prosecution by the ICC.

More recently, Tatanaki has been linked to a Libyan militia accused of extrajudicial killings and other rights violations. Reportedly, the contract was terminated after three months, with the ex-prosecutor earning $750,000. Yet, he used ICC employees to continue to carry out public relations work for Tatanaki and was paid to do so, which was still another potential breach of the ICC’s code of conduct.

As the champion for transparency, Ocampo made millions of dollars in such deals routing monies to his offshore companies in several tax havens, as evidenced by the Panama Papers. Ironically, he used what he had learned about corruption to benefit from illicit capital flows. As he later said, he wanted to “make some more millions” because the ICC salary (€200,000) was inadequate for his needs.

Unsurprisingly, perhaps, the ICC secured its first verdict only in 2012, when Ocampo’s nine-year tenure at the ICC was about to end. Last fall, the ICC said that its current prosecutor Fatou Bensouda had asked Ocampo to “refrain from any public pronouncement or activity that may—by virtue of his prior role as ICC prosecutor—interfere with the activities of the office or bring it into disrepute”.

Who controls the ICC

Usually, economic power translates to political control. The ICC is not an exception. Yet, the ICC’s funding is not transparent. It is financed “primarily” by its member states. The contributions of each state are determined by the method used by the UN, which roughly corresponds with a country’s income. In 2017, the ICC’s budget was €145 million. About two-thirds came from only 10 countries, more than half from Europe’s former colonial powers and the rest from Japan, South Korea, and Canada.

In the world economy, the EU accounts for about a fifth of the total; its funding of the ICC is thus three times its share of the global economy. Yet, according to the ICC, “additional funding is provided by voluntary government contributions, international organisations, individuals, corporations, and other entities”.

The lack of transparency and accountability creates a potential for gross moral hazard. For instance, multinationals that have funded warlords in Africa to extract oil, gas, minerals and conflict diamonds might be particularly interested in targeting African politicians in the ICC.

Critics believe that as the ICC ignores the governments and focuses on their leaders, it may support flawed investigations that ignore the role of the governments while tacitly supporting regime change through new leaders. In some cases, prosecution of leaders in the ICC has made them less likely to step down peacefully. Also, success in investigations requires state cooperation, which the ICC mandate shuns and that can result in an inconsistent and discriminatory selection of cases.

Unsurprisingly, the half a dozen countries that voted against the ICC Statute in 1998 included both the US and China. While President Clinton signed the Statute, he knew that it would never be ratified on Capitol Hill.

More recently, the US and Russia have said they no longer intend to become ICC members and thus have no legal obligations arising from their signature of the Statute. China’s view is that the ICC goes against the sovereignty of nation states.

Advanced economies’ court

It was the Rome Statute of the International Criminal Court that led to the creation of the ICC in 1998. Nevertheless, its ability to investigate and prosecute is severely restricted by its mandate. Moreover, due to its creation in 2002, it can only prosecute crimes after that date. That conveniently suspends the worst genocides, crimes against humanity, war crimes and crimes of aggression—the four core international crime categories that the ICC claims to focus on.

Today, there are more than 120 state parties to the Rome Statute. Over 30 countries have signed but not ratified the statute, and there are more than 50 non-signatory countries. Let’s look more closely at the countries that are parties to the Rome Statute and those that aren’t.

The overwhelming majority of the world populations have not joined the Rome Statute. The most populous middle-income economies remain outside the ICC. Only the smaller populations of high-income economies consider the ICC to be useful. Among the poorest economies, half have joined the ICC and another half haven’t.  Many have been forced to adjust to major powers’ status quo.

The economic story is even clearer. It has been very much in the interest of the high-income economies to join the ICC. Conversely, it has been very much in the interest of the less prosperous middle-income economies to stay away from the ICC, along with low-income countries.

Who all are the signatories

In Asia, neither China nor India is a signatory. In Southeast Asia, both relatively wealthier countries (Singapore, Brunei, Malaysia) and emerging economies (Indonesia, Thailand, Vietnam, Myanmar, Lao) have not signed the Statute.

Cambodia did ratify the Statute in 2002, which may be currently contributing to elevated tensions in the country. The Philippines signed the Statute in 2000 but did not ratify it. That’s what most US partners did at the time emulating Washington’s stance. Yet, President Aquino did sign the Statute in February 2011, right before he aligned Manila’s foreign policy with President Obama’s security pivot to Asia geopolitically—but in contrast with almost all BRIC and ASEAN economies.

The simple reality is that, in the past two decades, the ICC’s credibility has deflated and its judicial independence has been compromised. Distressingly, it has shown gross bias against emerging and developing economies. A membership in such an international court is no litmus test for the advocacy for human rights in which the Philippines has a long history.

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The original commentary was published by The Manila Times on March 20, 2018.