The Only Americans Who Would Gain From The U.S. Joining The International Criminal Court Are Lawyers

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Mark Pursey Managing Partner, BTP Advisers
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Why would a former president of the American Bar Association take time out from his busy career as a lawyer — representing those accused of crimes, for money – to publicly defend the reputation of the International Criminal Court, a justice institution based in The Hague, a city in Europe, of which the U.S. is not even a member?

Earlier this month Michael S. Greco, one of America’s leading lawyers, responded to an article I wrote criticizing the ICC’s approach to media relations. I am a communications professional who has worked on many high-profile international law cases, and who believes the ICC should spend less time courting publicity: instead it should focus on ensuring its prosecutions are based on sound evidence. Until this occurs, and with its poor track record of delivering justice, I do not think there is anything for America to gain by becoming a signatory to the Rome Statute, the global treaty that grants the institution its authority.

In his rebuttal, Greco suggested my opinions were aired merely for reasons of self-interest. Yet what would serve that best is in ensuring the ICC flourishes – providing me further potential clients to represent — not in publicly criticising the Court.

But regardless of Greco’s insinuations, why would he race to the ICC’s defence? The answer is precisely what he has accused me of: self-interest. In a speech delivered at Stanford University in 2012 while Chair of the ABA’s International Criminal Court Project, Greco stated: “since 1998 the ABA has been calling for U.S. accession to the Rome Statute and, until that happens, for U.S. engagement with, and support for, the ICC’s vital work.”

There’s nothing wrong with a trade association advocating something that is beneficial for its industry. Given the high fees the Court brings to British lawyers who take the majority of the ICC’s defence counsel assignments, it would be in the self-interest of many ABA members to be part of it too. But what might financially benefit U.S. trial lawyers is not necessarily the same as what would benefit America. Indeed, based solely on the ICC’s track record in delivering justice since its foundation in 2003 it is doubtful many current members would join today if they were not already signatories.

At the centre of the ICC’s woeful performance are not its communications practices but how it sources, coaches, protects and uses witnesses and their testimony in prosecutions. Of equal concern is how the Court is prone to making unsubstantiated accusations of witness tampering against those indicted when witnesses have recanted or refused to testify against them in the trial chamber, and when the credibility of their prosecutions are under threat.

It is a simple fact that since 2003 witness recantation and withdrawal has occurred in many cases: in a former case against Kenyan President Uhuru Kenyatta, in a current case against Kenyan Deputy President William Ruto – and in a former case against Thomas Lubanga and the current trial of Jean-Pierre Bemba — a militia and political leader both from Democratic Republic of Congo, to name only a few.

Yet in his article Greco suggests such recanting is not a failure of the ICC itself, instead blaming the political power of the Court’s indictees to interfere with witnesses, and therefore justice. Maybe: but it is, frankly, more probable the ICC has a serious flaw with finding, retaining and protecting credible witnesses than it is that witness tampering is spreading country-by-country across the world, like some legal epidemic.

Steven Kay QC, one of Britain’s leading lawyers, who defended Uhuru Kenyatta when he was indicted by the ICC – a case Greco claims as having been undermined by witness tampering — said in an interview in 2015: “No witnesses were killed. I did not find any intimidation, and neither have the judges. That’s why this is a misleading story. A lie can travel half way around the world in the time that it takes the truth to get its pants on.”

And that remains one of the real, deep-seated flaws with the ICC. Those before the Court are treated as guilty from the outset, not innocent with the onus on the need to prove guilt beyond all reasonable doubt. In such an atmosphere everything and anything, including accusations of witness tampering – whether true or not – can be levelled at the accused by the prosecution, supportive NGOs and the media, and it is sadly too often believed. This is not justice in court, but character assassination in public.

In The Hague the current case against William Ruto is crumbling. Last week faced with witnesses recanting or withdrawing evidence, or refusing to testify, ICC prosecutor Anton Steynberg astonished the courtroom, admitting: “The prosecution intends to take the chamber at its word and focus not on the credibility, reliability and cogency of the evidence but rather on whether the quantum of the evidence may be enough to establish the guilt of the accused.”

In simple terms, he said that it doesn’t matter if the prosecution has no reliable or credible evidence against Ruto: they just say he is guilty, and that must mean he is.

When the ICC goes about prosecutions in this manner it is no wonder the US does not join. Indeed, to do so would only give credence to poor practices. But for certain quarters of the American legal profession it does not matter whether or not the ICC is functioning as a justice institution should – only that the US authorities sign up and join. That’s why its reputation needs to be publicly defended. Put plainly, U.S. membership of the ICC may make no sense, but for some Americans it would make great cents.