The Right of Might

On German Initiative

The International Criminal Court (ICC) owes its existence not least of all to Germany, which had vigorously promoted its establishment in the 1990s. The German government had already pushed for the War Crimes Tribunal for Yugoslavia (ICTY). German Foreign Minister, at the time, Klaus Kinkel, was the first to officially call for the creation of the tribunal in August 1992 and the German government takes pride in having "significantly contributed" to its establishment.[1] Already at an early stage, the German government had called for the establishment of an international criminal court without restrictions to specific countries. The German government declared in 1994, that it had "contributed significantly" to the fact that the UN General Assembly had charged the International Law Commission (ILC) with drafting a statute for such a court in 1992, with the objective of "possibly extending the jurisdiction of the International Criminal Court to all countries." "Serious violation of international humanitarian law" should also be under its jurisdiction.[2] In late 1996, Foreign Minister Klaus Kinkel reaffirmed the German government's continued "strong commitment" to the creation of the ICC.[3] Just before the ICC's establishment on June 17, 1998, Kinkel appealed to the participating countries, "not to water the historical project down to the lowest common denominator" and to grant the court comprehensive competence.[4]

World Criminal Court

Finally on July 1, 2002, the ICC began work in The Hague, capital of the Netherlands. According to the German foreign ministry, the ICC intervenes, "if states are not willing or unable genuinely to pursue a specific serious criminal offense."[5] It can, however, only intervene if "either the state on whose territory the crime was committed or the state of which the person accused of the crime is a national," has become party to the ICC's statute. Until now 124 states have joined the ICC and 31 have signed the statute but not yet ratified. The USA, but also Russia and China, have not ratified or signed the statute. Germany is continuing to support the ICC and is, according to the foreign ministry, "the ICC's largest contributor, after Japan, and also contributes voluntary payments to the Court’s Trust Fund for Victims."[6] In addition, it has assigned judges to the ICC. "The German Government will continue to do its utmost, to ensure that the ICC can work as effectively as possible and that it receives broad support from the international community," the foreign ministry declared. The ICC must "gain universal importance and acceptance as a world criminal court."

Against Africa

However, over the past few years, this acceptance has clearly been fading away, because of the ICC's obvious focus on the African continent. In fact, the first eight countries against whose citizens the ICC has initiated proceedings have all been African - the Democratic Republic of the Congo, Uganda, the Central African Republic, Sudan, Kenya, Libya, the Ivory Coast and Mali. (In early 2016, Georgia became the first non-African country to become the focus of an official investigation.) The defendants included, not only militia members, such as Thomas Lubanga and Germain Katanga of the Democratic Republic of the Congo, indicted for war crimes in July 2012 and March 2014, and sentenced respectively to 14 and 12 years in prison. These were the first ICC judgments to be handed down. Cases have also been opened against two incumbent heads of state, Sudan's President Omar al Bashir and Kenya's President Uhuru Kenyatta. Whereas the case against Kenyatta had been dropped in December 2014, for lack of evidence, an arrest warrant is still outstanding for President Al Bashir.

Western Impunity

For years, resentment has been growing in many African countries over the ICC's blatant discriminatory treatment, especially since not a single procedure has yet been initiated concerning the western powers’ suspected war crimes. Numerous massacres of civilians, attributed to the troops of NATO countries, including those of the Bundeswehr, have been documented in the wars at the Hindu Kush and in Iraq, in Libya and in Syria. (german-foreign-policy.com reported.[7]) Even though there has hardly ever been prosecution of those responsible, the ICC has never initiated investigations. Recently, resentment was reinforced by the ICC's announcement that it would not seek an indictment for the former British Prime Minister Tony Blair for Britain's 2003 participation in the aggression against Iraq. The "Chilcot Report" report, the results of a British government contracted investigation published in early July, had confirmed that Iraq had been arbitrarily and under false pretenses bombed to destruction. At the time, the ICC announced that the decision by the UK to go to war in Iraq falls outside the Court’s jurisdiction, therefore Blair has been spared.[8] Besides, an indictment of US President George W. Bush is out of the question, since the USA has not joined the ICC and, therefore, is outside the pale of its jurisdiction.

Disciplinary Instrument

From the very beginning, critical observers had warned that the ICC would, in fact, prosecute weaker countries but not the western powers, and therefore, would merely serve as a disciplinary instrument for the less influential UN members, for example, African countries. As the ICC's record so far shows, this has proven to be the case. In October, the first three African countries - Burundi, South Africa and Gambia - assumed the consequences and announced their withdrawal from the ICC. Subsequent withdrawals are not ruled out. Kenya may be the next candidate. Observers have begun to ask if this could be the end of the ICC.[9]

Legal Evaluations

For quite awhile, Berlin has been trying to make up for the resentment toward the ICC, to prevent that tribunal from collapsing. For example, the German government supported the Kampala decision in 2010, allowing the ICC to investigate in the future one country’s military aggression against another. Should this agreement be activated in the coming year, "penal consequences" could be envisaged for the "coalition of the willing" in "a scenario similar to that of Iraq in 2003," for having decided to bomb and invade that country, according to a report.[10] At the same time, however, German international jurists point out that there is enough room for interpretation, to ward off eventual threats to western countries for their wars. Berlin does not have to worry, because "the legal evaluation of NATO airstrikes in Kosovo 1999 ... is controversial,” the report states. According to Claus Kreß, an international jurist in Cologne, "the invasion of Iraq, in 2003" is ultimately "not conclusive enough to justify an ICC indictment. But, there are acts of state that would certainly not be tolerated. Thus, "the annexation of Crimea, ... according to Kreß, oversteps the threshold to a war of aggression."[11]

[1], [2] Deutscher Bundestag, Drucksache 12/6816 vom 09.02.1994.
[3] Kinkel verlangt Grundrechte-Gericht. www.welt.de 11.12.1996.
[4] Kinkel will starkes internationales Gericht. www.welt.de 15.06.1998.
[5], [6] Internationaler Strafgerichtshof. www.auswaertiges-amt.de.
[7] See Die zivilen Opfer der Kriege and The Civilian Casualties of the Wars (II).
[8] Caroline Mortimer: Chilcot report: International Criminal Court says it will not investigate Tony Blair - but might prosecute soldiers. www.independent.co.uk 03.07.2016.
[9] Karen Allen: Is this the end for the International Criminal Court? www.bbc.com 24.10.2016.
[10], [11] Helene Bubrowski: Nie wieder Angriffskrieg. Frankfurter Allgemeine Zeitung 04.10.2016.