It was interesting to see the President of the International Criminal Court (ICC), Tomoko Akane of Japan, warning recently about “the demise of international rule of law” after the United States targeted her, and another ICC functionary, with sanctions. She joins eight other judges, one former Chief Prosecutor and both Deputy Prosecutors, and their families, in having been sanctioned by the American government. It will be tough for them: No more bank accounts, credit cards, PayPal, Microsoft, payroll software, Cloud, Netflix, Amazon, eBay, Ubers or Uber Eats, shopping on Fifth Avenue,  holidays at Disney World and no more judgments written by AI.  And Alexa will no longer turn the lights on or play Judge Judy when asked to do so.

Madame Akane’s comments are remarkable for several reasons. It is extraordinary – but not surprising – that she warned of the “demise of international rule of law”, that is to say the death of the International Criminal Court, because of the Trump administration’s sanctions on her and other Court employees. To paraphrase Shakespeare, however, “the lady doth protest too much, methinks”. In so doing she chose to ignore the fact that the ICC has been in crisis and terminal decline for most of its existence.

There is very little that President Trump needs to do that would make matters worse for this Court or its reputation outside of coffee shops in The Hague. Madame Akane’s ICC has shown itself to be terminally dysfunctional in the 24 years of its existence. The Court is notorious for having ersatz judges unable to judge mainly because most are unqualified to do so, prosecutors that are unaware of the concept of presumption of innocence and can’t prosecute their way out of a paper bag, and, if that wasn’t bad enough, did find time to be caught up in sexual misconduct scandals which have themselves almost destroyed the Court (who can forget the Economist’s ‘An ICC prosecutor in the dock’). It is a terrible indictment of Madame Akane’s presidency of the Court that on her watch an international justice website found it necessary to report that “[t]he first three prosecutors of the International Criminal Court have failed to be of high moral character.”

Unsurprisingly, the Court’s proceedings thus far have often been questionable where not simply farcical – labelled even by sympathetic legal scholars as “slapstick comedy”. The ICC has failed, and failed really badly, both on every claim made by it or on its behalf and by any performance metric. For starters, despite being sworn to uphold the Court’s constitutive document, the Rome Statute, and the rule of law, judges and prosecutors at the Court have repeatedly broken or bent the law as set out in the Statute. Far from being an independent and impartial court, the Court grants special prosecutorial rights of referral and deferral to the Security Council, the world’s most political body – and by default its five permanent members (three of which are not even ICC members). Its independence is compromised further by the fact that the European Union provides two-thirds of its budget, again in contravention of the Rome Statute. Despite pretensions to being the international criminal court, it is merely a treaty-based organisation representing one-third of the world’s population, and is losing member states on a regular basis.

The Court’s promise to deliver swift........

© The Times of Israel (Blogs)