Dr DAVID HOILE

It is time for Nigeria to lead the way for Africa and call time on the International Criminal Court (ICC), and the 1998 Rome Statute that brought it into being. Twenty-five years into its existence, it is all too clear that the ICC is dangerously unfit for purpose. The institution many African countries enthusiastically signed up for in Rome, a Court that promised to pursue injustice without fear or favour, is not the one they see before them today. Nigeria and the rest of Africa were sold a false bill of goods. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the Court’s reputation has been irretrievably damaged by its racism, blatant double-standards, hypocrisy, corruption, serious judicial irregularities and sex scandals within the court itself.

While the ICC presents itself as the world’s court this is simply not the case. Its members represent just over one quarter of the world’s population: China, Russia, the United States, India, Pakistan and Indonesia are just some of the many countries that have remained outside of the Court’s jurisdiction.

As any lawyer will tell you, a court is also only as credible as its independence. Far from being an independent and impartial court, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council – by default its five permanent members (three of which are not even ICC members). Political interference in the legal process was thus made part of the Court’s founding terms of reference. The Court is also inextricably tied to the European Union (EU) which provides up to two-thirds of its funding. The expression “He who pays the piper calls the tune” could not be more appropriate. The fact that the big five ICC funders are Africa’s former colonial masters also sits uneasily with a continent that quite rightly remains suspicious of recolonisation by questionable legal diktat. The EU is additionally guilty of outrageous political and economic blackmail in tying aid and trade deals for developing countries to ICC membership.

Observers are also correct when they point out that the ICC is self-evidently a racist court, in that it treats one race of people differently to all others. Instead of impartially enforcing the Rome Statute, the Europeans have chosen to focus the Court almost exclusively on Africa.

For the first two decades of its existence, from 2002 until 2022, the Court had only ever indicted black Africans. Every single person convicted to date by the ICC has been African. In so doing the ICC has ignored all alleged European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states. African heads of state and ministers have quite correctly spoken of the ICC’s “race hunting” and the “International Caucasian Court”. And while the ICC’s key first two cases are often presented by ICC apologists as African “self-referrals” it is now clear that the African governments were made “an offer they could not refuse” by the Court: refer yourself and we will only indict your rebels – if not we will indict both government and rebels.

The ICC’s hypocrisy is all too evident. The Court has emerged very much as a European-funded and directed instrument of European foreign policy. The Court has been content to provide “indictments” as legal cover for European – and particularly French – intervention in Africa. Four of Nigeria’s neighbouring countries, Mali, Burkina Faso, Niger and Chad have had enough and left the ICC in the past year, citing racism and the Court’s neo-colonial agenda.

Double standards, dubious funding, weaponisation and politics aside, the ICC has shown itself to be irretrievably judicially dysfunctional. The Court’s proceedings thus far have often been questionable where not simply farcical. Legal bloggers have referred to them as “slapstick comedy”. Its judges – some of whom have never been lawyers, let alone judges – are the result of corrupt vote-trading amongst member states. Far from securing the best legal minds in the world this produces mediocrity. At least one elected “judge” had neither law degree nor legal experience but her country had contributed handsomely to the ICC budget. The Court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by Western-funded non-governmental organisations as to what false statements to make. Dozens of other “witnesses” have similarly disavowed their “evidence”. The ICC prosecutor also had to admit that its own star witness in its then case against Kenyan Vice-President Ruto was “a thoroughly unreliable and incredible” witness.

And then there has also been the ICC Chief Prosecutor who was not only seemingly unaware of the legal concept of presumption of innocence but also threatened to criminalise third-parties who might argue a presumption of innocence on the part of those indicted – and as yet unconvicted – by the Court. A clearer case of Alice in Wonderland justice, along the lines of “sentence first, verdict afterwards”, is difficult to find. There has been equally outrageous prosecutorial misconduct, not least of which hiding exculpatory evidence, which should have ended (but did not) any fair trial because they would have compromised the integrity of any legal process. The ICC’s first trial proceeded erratically because of crass prosecutorial misbehaviour and judicial decisions to add new charges half-way through proceedings, a move that was subsequently overturned. Simply put, the Court and the prosecutor have been repeatedly caught making things up as they go along. Little wonder then that four past presidents of the Assembly of States Parties, the ICC’s governing body, have publicly declared the Court is broken and needs “fixing”.

The ICC claims to be “economical” and yet it has consumed more two and a half billion Euros to secure 13 often debatable convictions in its increasingly questionable existence, that is to say $200 million per conviction! The Court promised to bring “swift justice”. The reality has been protracted injustice: The former Democratic Republic of Congo Vice-President Jean-Pierre Bemba was held in custody for ten years before being acquitted. Former President Laurent Gbagbo was detained by the Court for seven years before being freed because the prosecution’s case was so abysmal. The ICC claims to be victim-centred yet Human Rights Watch has publicly criticised the ICC’s ambivalence towards victim communities. The ICC claims to be fighting impunity, yet it has granted both de jure and de facto immunity to the United States and afforded de facto immunity and impunity to NATO member states and several serial abusers of human rights who happen to be friends of the European Union and United States.

Far from bringing peace to Africa, the ICC’s double-standards and autistic legal blundering has derailed delicate peace processes across the continent – thereby prolonging devastating civil wars. The court is responsible for the death, injury and displacement of many thousands of Africans. The ICC’s involvement in Uganda, for example, destroyed peace talks in that country, intensifying the conflict which then spread into three neighbouring countries.

The reality is that the ICC is an inept, corrupt, political court that does not have Africa’s welfare at heart, only the furtherance of Western, and especially European, foreign policy and its own bureaucratic imperative – to exist, to employ more Europeans and where possible to continue to increase its budget – all at the expense of African lives. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence and that no American citizen will ever come before it. Neither should any African.

Nigeria must lead the continent in withdrawing consent from this travesty of justice.

•Dr David Hoile is the author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the London-based Africa Research Centre.

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