The ICC: An International (Neo-)Colonial Court?

In June 1998 the treaty for the International Criminal Court was signed in Rome.... Despite the positive publicity the court has already received from the human rights movement, it can only magnify the dangers of the ad hoc tribunals. The standard of justice that will be delivered has already been widely questioned, as the odds will be stacked high against defendants with the court structured to enable close co-operation between the judges and prosecution at the expense of impartiality and even-handed justice. The dependence of the court on the support of the major powers indicates that those brought to account for 'international crimes' will be little different than under the present ad hoc system. Like its ad hoc predecessors, it will be little more than the backdrop for show trials against 'countries like Rwanda and former Yugoslavia where none of the combatants have superpower support'.

The human rights NGOs have been heavily involved in these international institutional developments. Amnesty International and Human Rights Watch led the lobbying of nearly 200 NGOs with delegates involved at the 1998 Rome Conference. The main message of the NGO reports was summed up by Human Rights Watch: 'Delegates are urged to ensure that the Rules do not add to the burdens of the Prosecutor, create additional procedural steps or further limit the Court's jurisdiction.' Even legal commentators supportive of the new court were taken aback by the desire of these groups to abandon judicial neutrality in the search for 'justice'. Geoffrey Robertson QC notes 'what was truly ironic was their zeal for a court so tough that it would actually violate the basic human rights of its defendants'. Amnesty International, an NGO that established its reputation by prioritising the rights of defendants, has even called for the abolition of traditional defences, such as duress, necessity and even self-defence, for those accused of crimes against humanity. The rapidity with which established human rights NGOs, such as Amnesty, which previously defended the rights of all defendants, have taken up the agenda of international institutions, illustrates the shift away from universalist approaches to 'justice' today....

The developments in international law since 1990 have been greeted by the human rights community as universalising and extending the law, providing greater protections for the least powerful.... In fact, the reverse is true. Attempts to strengthen international law, without the development of any global authority able to stand above powerful nation-state interests, have instead reinforced the political and economic inequalities in the world. Removing the rights of non-Western states to formal equality in international law has not led to a redistribution of power away from the powerful to the weak, but reinforced existing social and economic inequalities, institutionalising them in law and politics. Despite their rhetorical critiques of the old Westphalian order, the advocates of 'international justice' have done much to resurrect it. As we have seen in the Middle East, Africa, the Balkans and Afghanistan, the development of new international jurisdictions has heralded a return to the system of open Great Power domination over states which are too weak to prevent external claims against them. As Simon Jenkins notes:

Augusto Pinochet of Chile is seized from the authority of his own people for inquisition by Chile's former ruler, Spain. President Saddam Hussein [was] being bombed by Iraq's one-time overlord, Britain ... Post-colonial warlords are summoned from Africa to stand trial for 'war crimes' in once-imperial European capitals.

What is different in the twenty-first century is that this open domination is not legitimised by a conservative elite, on the basis of racial superiority and an imperial mission, but by a liberal elite, on the basis of ethical superiority and a human rights mission.

SOURCE: From Kosovo to Kabul and Beyond: Human Rights and International Intervention, new ed., by David Chandler (Pluto Press, 2006), pp. 147-148, 155-156 (reference citations removed)