Straight to the point

A One-Time ICC Advocate Recants
by Ramesh Thakur at Brownstone Institute

We are fast approaching the five-year anniversary of the pandemic outbreak that began my disillusionment with the United Nations system of which I had been a lifelong devotee both as a professor and a senior insider. 

My book The United Nations, Peace and Security was published by Cambridge University Press in 2006 with a revised and updated second edition in 2017 and has more than 1,000 Google Scholar citations. Its concluding chapter brought together the various threads of the previous thematic chapters to argue that the UN’s challenge was to reconcile realism with idealism, the world in which it actually operates with the idealised vision of a better world towards which humanity strives. The World Health Organisation betrayed both realism and idealism in its performance as the global lead authority on responding to the novel coronavirus in 2020. It trampled on core human rights principles and may actually have caused more long-term public health harms around the world than it helped to avert and mitigate.

A second consequence of the disenchantment was to look afresh at the science and data behind the global warming-cum-climate change agenda, the reliance on assumptions-driven modelling, the fear porn, the multitude of failed alarmist predictions, and the strenuous efforts to silence, suppress, censor, and defund contrarian and dissenting research and voices. In both agendas, moreover, governments and international organisations have colluded with rent-seeking enterprises to coerce and shame people into changing behaviour to align with elite policy priorities, hypocritical elites broke the very rules they imposed on the public, economic costs were borne mainly by the less well-off while the wealthy profited from generous public subsidies and transfer of risks to the taxpayer, and poor peoples and countries have been further impoverished.

Now comes the third leg of the disillusionment with regard to the institutions of international criminal justice, where too the conceit of professional international elites and technocrats is leading them into appropriating powers of sovereign states to make calculated policy trade-offs. To understand why, we need to go back almost 20 years to the time when the inaugural Prosecutor of the International Criminal Court (ICC) issued the first dramatic arrest warrant for a sitting head of state. Will it prove a case of three strikes and you are out with respect to global governance?

Caveat

An important caveat is in order by way of a preamble. This article does not take a position on the merits of the Israel-Palestine conflict or on the Gaza war per se. The competing moral arguments coalesce around the deeply internalised beliefs that reparations for the Europeans’ genocide against Jews were paid in Palestinian currency, versus the right of Israel to exist as the Jewish homeland that was earned with the lives of millions of Jews exterminated in the Holocaust.

Reflecting these seemingly irreconcilable perceptions on what constitutes the core issue in conflict, on the one side, under international law Gaza is ‘Occupied Palestinian Territory’ and occupied people have the right to armed resistance against occupiers (UN General Assembly Resolution 37/43, 3 December 1982, paragraph 2). On the other side, no country can be denied the right to self-defence against armed attack. Passions run high on the issue and the editors of Brownstone Journal have sensibly stayed out of that debate in order to preserve cohesion within the Brownstone community.

Rather, the main concern has to do with ICC overreach against the backdrop of the displacement of sovereign states as the proper locus of policy trade-offs from the range of competing goals, interests, and values. Having centralised more power in the executive office of the head of government even in democratic regimes, are we comfortable now to transfer the centralisation of power to unelected and unaccountable international technocrats?

To this end, the bulk of the analysis that follows deals with ICC intervention in an older African conflict. The section on the ICC vis-à-vis the current Gaza war comprises less than one-fifth of the discussion. The analytical themes connecting the two conflicts separated by sixteen years are (1) the danger of perverse and unintended consequences when the courts place themselves in the eye of political hurricanes, and (2) the self-righteous belief by the international technocratic elite that its members know what’s best in a world characterised by deep divisions.

Looking Back at 2005–08: The First Prosecutor

In retelling the first case, I draw entirely on two publicly accessible documents, even today, on the websites of the ICC itself and the Administrative Tribunal of the International Labour Organisation (ILO) which is a specialised agency of the UN. It was set up in 1946 as the successor to the Administrative Tribunal of the League of Nations established in 1927. The 7-judge ILO Tribunal adjudicates more than 150 employee-employer conflicts annually involving 60 intergovernmental organisations, including the ICC, covering around 60,000 international civil servants.

In Judgment No. 2757 handed down in Geneva on Wednesday 9 July 2008, the Tribunal ruled on an appeal by the ICC Public Information Adviser Christian Palme of Sweden against summary dismissal by the first ICC prosecutor Luis Moreno-Ocampo. The bulk of the judgment, as we shall see shortly, was not favourable to the prosecutor or to the ICC judges.

On Thursday, Moreno-Ocampo issued a statement, reported by the Washington Post and PBS on Friday, that he would be submitting a request for an arrest warrant against Sudan’s President Omar Hassan al-Bashir. He duly did so on Monday 14 July. The ICC issued the warrant on 4 March 2009. Regardless of the prosecutor’s motivations and calculations which we have no way of determining, the coincidence of the proximity of timing meant that news of the first head of state facing the prospect of arrest by the ICC-dominated news coverage and the ILO finding was lost in the noise.

The Timeline

The ILO judgment begins with a bare-bones timeline of events.

On 20 October 2006, Palme submitted an internal complaint to the ICC president accusing the prosecutor of ‘serious misconduct…by committing the crime of rape, or sexual assault, or sexual coercion, or sexual abuse against [a named individual] and that for this reason he should be removed from Office.’ Note that the ILO does not name Palme, identifying him merely as a 52-year-old Swede who joined the ICC on 6 June 2004 and a year later was promoted to the position of Public Information Adviser. Not only does this make it relatively simple to figure out who the person is. In fact he is identified by name in a 2009 article by two respected Africa experts Julie Flint and Alex de Waal that is available from the ICC’s website directly, as the first document in Annex 1.

Returning to the ILO document, a panel of three ICC judges was set up to look into the complaint. On 8 December the ICC informed Palme that it had accepted the panel’s finding that his complaint was manifestly unfounded. Palme had submitted an audio recording of a telephone conversation between the alleged victim and an ICC colleague [Yves Soroboki] as supporting evidence. The ICC demanded all copies of the recording to be handed over for destruction.

On 23 January 2007, the ICC’s HR section head wrote to Palme that he was being placed on a three-month suspension while the prosecutor’s complaint against him of serious misconduct was investigated. A follow-up letter on 16 March informed Palme that the prosecutor was considering dismissal. On 13 April Palme was told in a letter dated the 11^th that he had been summarily dismissed.

On 1 May Palme appealed to the internal Disciplinary Advisory Board alleging procedural and substantive flaws in the dismissal. The board requested and was given a copy of the panel’s report with an accompanying advisory that it was confidential. However, the board was asked to inform both Palme and Moreno-Ocampo that no findings of bad faith or malicious intent had been made against Palme. The board informed both parties of this on 26 May.

On 18 June the board unanimously ruled that the dismissal was procedurally flawed and had also failed to establish the substantive charge of ‘obvious malicious intent.’ Accordingly, it called for the summary dismissal decision to be rescinded.

On 13 July the prosecutor rejected the board’s recommendation and reconfirmed the summary dismissal of Palme. Palme then submitted an appeal to the ILO repeating his complaint of lack of due process and arbitrary dismissal and added that the prosecutor’s rejection of the board’s unanimous recommendation demonstrated the retaliatory nature of his dismissal. He urged the ILO Tribunal to quash the impugned decision and award material damages.

The Tribunal’s Decision

In the decision summarised at the end on p. 7 of the judgment, the Tribunal ‘set aside’ the prosecutor’s decisions of 11 April (Palme’s dismissal) and 13 July (rejecting the board’s recommendation); awarded Palme salary compensation worth the time that had remained in his contract plus a repatriation grant and other benefits payable when an employee separates from the organisation, plus 5 percent annual interest on these amounts; material damages amounting to two years of salary plus relevant allowances; moral damages; and costs. The total value of the monetary compensation came to €248,000.

The reasoning behind the Tribunal’s conclusions is especially interesting. The court (not the prosecutor) had contended that it had separately interviewed the alleged victim and the prosecutor and both had ‘unambiguously denied’ the charge of rape. The Tribunal responded that Palme had alleged an act of ‘rape, or sexual assault, or sexual coercion, or sexual abuse,’ to which end the prosecutor had taken the alleged victim’s car keys and refused to return them until she consented to sexual intercourse (p. 3, consideration 2). The Disciplinary Board seems to have concluded there was no rape because force was not used (p. 4, consideration 10).

Palme had not alleged the use of force, but rather that the journalist had consented to sexual intercourse in order to regain her car keys that had been taken by the prosecutor. He had submitted an audio recording in evidence in which the female journalist ‘sounded distressed and denied that she had been forced to have sexual intercourse but did not deny that she had consented in order to regain possession of her keys’ (consideration 3). The Board did not at any stage consider the precise factual allegation made by the complainant; namely, that the alleged victim had consented to sexual intercourse in order to regain possession of her keys (p. 4, consideration 7). The Tribunal noted that if a complainant makes a statement believing it to be true on reasonable grounds then, even if the statement turns out to be false, it does not meet the threshold of serious misconduct (consideration 9).

Palme made the complaint based on information from a colleague whose admittedly ‘secondary evidence’ ‘may have been probative in criminal proceedings,’ ‘depending on the circumstances.’ Moreover, there was nothing to suggest that the ‘colleague was unreliable or untrustworthy, much less that he was known to be so by the complainant’ (p. 5, consideration 11). In the recorded conversation, the journalist ‘indicated unambiguously that the Prosecutor “took [her] keys” and that she had consented to sexual intercourse “to get out of [the situation]”’ (p. 5, consideration 11). Palme had ‘characterised the Prosecutor’s alleged conduct as “rape, or sexual assault, or sexual coercion or sexual abuse” which, given differing national laws, is tolerably accurate’ (p. 5, consideration 10).

Hence ‘it is not correct’ for the ICC to have concluded that ‘the complainant acted “[w]ithout any evidence of relevant probative value”.’ Nor can malice be inferred from his conduct. ‘The protection of the standing of the ICC, a matter in which the complainant had a legitimate interest, is also a proper purpose, as are other purposes such as ensuring observance of the law’ (p. 5, consideration 14). ‘Accordingly, the material on which the ICC relies does not justify a finding that the complainant acted with malicious intent’ (p. 6, consideration 16). 

Nuanced Initial Support for and of the ICC

The 2008 ILO decision has a two-fold relevance to current events. First, it explains why some early advocates of universal international criminal justice who had welcomed the creation of the ICC began to have serious doubts about it. The judgment helped change my mind on the threat-benefit equation regarding the ICC. The arrest warrants against Israel’s PM and former defence minister have turned the 2009 disillusionment into outright opposition. The current Israeli case is all too familiar to observers of Middle Eastern and world affairs. The earlier case is mostly unfamiliar.

Writing in the International Herald Tribune on 17 July 2001, I drew a distinction between activists who assert ‘the primacy of justice without borders’ and sceptics who warn of ‘international anarchy if we depart from realpolitik in a state-based system of world order.’ Even though the potential exists for abuse of universal justice ‘for vexatious and vindictive purposes,’ I concluded, the world was moving ‘inexorably from the culture of national impunity of previous centuries to a culture of international accountability more suited to the modern sensibility.’

In an article published in the same paper on 16 August 2002, I warned that with the newly operational ICC, the shift in balance in favour of the prosecution was producing a ‘transformation from protecting the rights of the accused to privileging the case for the prosecution.’ In addition, ‘Criminal law, however effective, cannot replace public or foreign policy.’

Both these articles were published while I was a senior UN official, with the disclaimer that they expressed personal opinions. The third article I wish to recall was published in the Daily Yomiuri (which no longer exists) on 12 July 2007, shortly after I left the UN, but summarising a presentation I made to a group of Japanese MPs just before my separation. Japan’s Parliament was debating ratification of the ICC at the time which did come about and possibly my presentation was helpful to that outcome.

I argued that ‘Revulsion at the murder of large numbers of civilians in atrocity crimes has led to a softening of public and governmental support for the norms and institutions that shield the perpetrators of atrocity crimes from international criminal accountability.’ The UN Charter ‘was never meant to be a tyrant’s charter of impunity.’ Even so, international criminal justice still requires ‘sensitive judgment calls…the prosecution of alleged atrocity criminals must be balanced against the consequences for the prospects and process of peace, the need for post-conflict reconciliation and the fragility of international as well as domestic institutions.’

Chapter 5 of The United Nations, Peace and Security, originally published when I was still a senior UN official, is entitled ‘International Crime Justice.’ It analysed ‘the dynamic interaction between law and politics in the search for universal justice.’ I concluded that although the establishment of the ICC marked ‘one of the most significant advances in international law,’ the debates around the effort and negotiations ‘were testimony to a significant division of opinion in the international community.’

Finally, I also oversaw two international projects in collaboration with institutes in the Netherlands and Ireland and co-edited the two resulting books that were published by the United Nations University Press: From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (2004) and Atrocities and International Accountability: Beyond Transitional Justice (2007).

The ICC Ventures Once More into the Vortex of the High Politics of War

On 7 October 2023, Israel suffered the worst attacks on Jews since the Holocaust. Its war in Gaza in retaliation has put Israel in the dock both at the World Court, which adjudicates inter-state disputes, and the ICC, which deals with genocide, war crimes, and crimes against humanity. ICC prosecutor Karim Ahmad Khan had been investigating Israelis and Hamas members for many months. In May he announced he was seeking arrest warrants against Israel’s PM Benjamin Netanyahu and then-defence minister Yoav Gallant, as well as three Hamas officials (at least two of whom have since been killed). While Palestinians and their supporters welcomed Khan’s announcement, most Israelis found the implied equivalency offensive. On 21 November a three-judge panel of the ICC duly issued the warrants.

Khan’s staff had been organising a week of meetings with Israeli officials in May to learn how they planned to address Khan’s ‘concerns’ about Israel’s alleged misconduct during the war. He effectively aborted the attempt by asking for the arrest warrants. In October reports emerged that back in May, a female ICC official’s complaint of sexual misconduct by Khan was about to become public. Douglas Murray, the Telegraph’s Europe editor James Crisp, and the Wall Street Journal’s editors among others have noted the convenience of the timing of the rushed May announcement that redirected attention away from the allegations against Khan. He denies the allegation and also rejects the suggestion of attempts to pressure the alleged victim to withdraw her complaint. Last month the ICC announced it had launched an external investigation of the claims.

On the law, Israel is not an ICC state party. Gaza is not a state. The Palestinian Authority seeking ICC intervention is neither a state empirically nor exercises meaningful sovereignty over Hamas-ruled Gaza.

Furthermore, genocide requires proof of intent to destroy a group. Alice Wairimu Nderitu of Kenya, the UN Special Advisor on the Prevention of Genocide, issued a guidance paper in 2022 on the correct usage of ‘genocide.’ She noted ‘its frequent misuse in referring to large-scale, grave crimes committed against particular populations.’ Because Israel’s intent is to dismantle a terrorist regime and not eliminate Palestinians as an ethnic group (indeed their population has increased), its actions do not constitute genocide. Her contract was allowed to expire without renewal on 27 November. The Wall Street Journal’s editors believe she was ‘dismissed because she has stood firm in her belief that Israel’s war with Hamas isn’t genocide.’

On jurisdiction, the Rome Statute subordinates intervention by the ICC to the principle of complementarity. As a court of last resort, the ICC is authorised to step in only when national authorities are unable or unwilling to investigate and prosecute. That condition was met in Sudan in the earlier case but is much harder to satisfy on Israel. Its fiercely independent prosecutors were not allowed the opportunity to investigate the claims of international crimes themselves before the ICC issued warrants. Israel’s powerful judiciary has the will and ability to hold officials accountable. In 2015 Former PM Ehud Olmert was convicted of bribery and obstruction of justice and spent 18 months in jail. At the time of Hamas’s attacks more than a year ago, Netanyahu was embroiled in a bitter fight with the judiciary that he was losing badly. It’s ironic therefore that Hamas may have given him a lifeline to revive his political career. 

On facts, dire projections of an impending famine in Gaza by May failed to materialise. Israel has facilitated the transfer of nearly 58,000 aid trucks – including over 2,000 food trucks this year until 11 May 2024 – and over one million tonnes of aid, despite delivery being hampered by self-imposed limitations by UN and aid agencies and pilferage by Hamas.

On politics, the ICC wants to arrest, detain, and in due course try the head of a government engaged in an existential war of survival against enemies who have sworn to destroy it and ethnically cleanse the entire region of Jews. Richard Ekins KC, Law Professor at Oxford University, wrote in the Telegraph on 15 October: ‘one would not ordinarily expect a state’s military operations to be subject to international judicial supervision in the midst of a conflict, not least in view of the court’s distance from the facts and lack of responsibility.’

On international politics, in the 2009 Bashir case, the African Union – the relevant regional organisation – was very perturbed by the cavalier manner in which the ICC had ignored efforts to resolve the Sudan conflict through intra-African negotiations. Similarly, the arrest warrants for Netanyahu and Gallant lend the authority of international criminal justice to the goal of delegitimising Israel. But their in-theatre impacts will be to undercut efforts to produce peace through negotiations, delay the release of remaining hostages, but not lead to any increase in aid delivery and food supplies.

The second relevance of the 2008 case is it shows that sometimes, history does indeed rhyme.

Damaging the International Criminal Justice Project

Neither the world’s most powerful countries nor those representing the majority of the world’s peoples are party to the ICC statute. Of the ten most populous countries, only three are ICC members: Nigeria, Brazil, and Bangladesh. In the group of sixteen countries with a population of over 100 million, there’s also Mexico, Japan, and the Democratic Republic of the Congo. Non-members comprise 88 percent of the ten most populous and 84 percent of the hundred million population club of countries. As for the group of powerful countries, the only two of the five permanent members of the UN Security Council (P5) included among the ICC states parties are France and the UK.

Judicial romantics privilege legal processes over every other consideration. This can be problematic in some cases even in domestic systems with well-established rule of law and separation of the different branches of government. Consider the US Supreme Court’s Dobbs decision (24 June 2022) which overturned the 1973 Roe v Wade decision. Contrary to much of the hysterical immediate reaction, Dobbs did not ban abortion. Rather, it made two important statements. The issue was not one of federal Constitutional power but of state jurisdiction. And it was not a judicial but a political issue, to be resolved by state-by-state political processes. The Court noted that women possess electoral and political power that can be exercised ‘by influencing public opinion, lobbying legislators, voting, and running for office.’ In this context, the court pointed out (pp. 65–66): 

It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots.

In effect, the Court concluded that politicising the judiciary to resolve bitterly contested moral beliefs and social policy can increase social conflict. Judges should not be the arbiter of bioethics. Rather, it is for people through their elected representatives to find the appropriate balance between the competing interests of women, the unborn child, and society’s moral compass.

Judicial romanticism is fraught with even more risks in international affairs where conflicts are typically resolved through diplomatic negotiations and/or on the battlefield. The absence of world government also means that the World Court and the ICC depend on the UN Security Council for enforcement action. But the P5-dominated Security Council reflects the power structure of 1945 and is dangerously misaligned with the current distribution of power in the real world. It is also the supreme political organ of the UN system.

The blowback effects of criminal convictions of state leaders that remain unenforced damage the credibility, authority, and legitimacy of the courts themselves. Bashir never did stand trial at The Hague. The growing African irritation and anger with the ICC culminated in South Africa, despite being an ICC state party, defying its own courts to facilitate the departure of Bashir out of the country.

The third India-Africa Forum summit was held in New Delhi from 26–29 October 2015, with 41 of 54 Africa’s heads of government/state in attendance. The summit was among the largest gatherings of African leaders in a foreign country and also the largest diplomatic event in India in over three decades. In an op-ed in the Japan Times on 4 November 2015, I wrote that Bashir’s presence at the India summit ‘was a challenge’ to the ICC and the UN Security Council. ‘Superficially, this signified disrespect for the rule of law. In reality, it is a rebellion against a normative enterprise of international criminal justice being subverted into a political project.’

The challenge to the ICC’s authority has only intensified in the decade since then. President Vladimir Putin, wanted over alleged war crimes in Ukraine, was warmly welcomed on an official visit to ICC member state Mongolia in September. He shook hands with UN Secretary-General Antonio Guterres at the BRICS meeting in Kazan, Russia the following month and is expected to travel to India shortly.

All 124 ICC member states, including the 27 members of the EU, are legally obligated to arrest Netanyahu should he travel to their country. Ireland, Denmark, and the Netherlands – which hosts the ICC at The Hague – have said they would enforce the arrest warrants. The UK is likely to do so. Germany has said no ‘because of its Nazi history.’ In open defiance of the ICC, PM Viktor Orbán has invited Netanyahu to visit Hungary. Several experts in France and the UK believe that arresting Netanyahu could be illegal under their national laws which confer immunity on the head of government of Israel, a state that is not a signatory to the Rome Statute (1998) that established the ICC.

PM Justin Trudeau says Netanyahu will be arrested if he were to come to Canada: ‘We stand up for international law, and we will abide by all the regulations and rulings of the international courts…This is just who we are as Canadians.’ Opposition leader Pierre Poilievre, ahead by more than 20 points in the polls, responded that Trudeau should be ‘fired’ for his ‘extreme’ views against ‘the leader of a democratically-elected government…which has been besieged by terrorists and foreign tyrants attacking its land.’

Back in the day, then-Foreign Minister Alexander Downer won the argument in cabinet against PM John Howard and Australia joined the ICC. He believed at the time that sufficient safeguards had been built into the system to prevent malicious and frivolous investigations of democratic leaders of countries with robust rule of law, as is the case in Israel. He too has now concluded that the good faith towards the court has been betrayed. However, today’s Labor PM Anthony Albanese has reiterated that Australia follows the court’s ruling as ‘a point of principle.’

President Joe Biden has condemned the decision as ‘outrageous’ and the US ‘fundamentally rejected’ the call for arrests. Trump’s national security adviser-designate Mike Waltz says the arrest warrants have no legitimacy and the world ‘can expect a strong response to the anti-Semitic bias of the ICC and UN come January.’ On 2 December Trump himself warned of ‘all hell to pay in the Middle East’ if Hamas had not released the remaining Israeli hostages in Gaza before he takes office on 20 January.

I suspect that, given Trump’s strong antipathy towards the ICC and his earlier sanctions on ICC prosecutor Fatou Bensouda on 2 September 2020 (lifted by Biden in April 2021), most Western countries will be wary of antagonising him by taking action against Netanyahu. Consequently, the ICC warrants are unlikely to lead to the arrest of either Netanyahu or Gallant anytime soon. Attempts to enforce them almost certainly will attract the hostile attention of Trump after 20 January.

A One-Time ICC Advocate Recants
by Ramesh Thakur at Brownstone Institute – Daily Economics, Policy, Public Health, Society

Source: Brownstone Institute Read the original article here: https://brownstone.org/