Desmond Tutu on the International Criminal Court

by Edward S. Herman

Desmond Tutu’s defense of the International Criminal Court ignores the ICC’s record as an annex of white imperial power. The former South African archbishop defends the ICC’s selective prosecution of Africans and those who anger the western powers. In truth, the “ICC may have black representatives, but it is not a black court in its ultimate power and it does not represent the ‘interests of the [black] people.’”

Desmond Tutu on the International Criminal Court

by Edward S. Herman

This article previously appeared in Z Magazine.

Darfur and selected other African states can be subjected to an ICC indictment, but not the United States, Israel, or Kagame’s Rwanda.”

Former South African Archbishop Desmond Tutu is a very decent individual who is usually on the right side in dealing with human rights issues. But in his recent op-ed column in the New York Times, “In Africa, Seeking A License To Kill” (October 11, 2013), he misses the boat badly (in my opinion). He assails the many African leaders who oppose any African cooperation with the International Criminal Court (ICC) on the ground that they seek a “license to kill” and need the threat of an ICC prosecution to constrain them. Because a number of these African leaders want to be free to kill, according to Tutu, they believe that “neither the golden rule, nor the rule of law, applies to them,” and “they conveniently accuse the I.C.C. of racism.”

Tutu admits that “at a first glance, the claim [of racism] might seem plausible,” as the ICC “has so far considered only cases against Africans.” But this he explains, in part, “because independent tribunals were established to handle cases concerning the former Yugoslavia, Cambodia and other countries.” But this is a feeble explanation for the exclusion from ICC indictments of any white-dominated country’s leaders, some of whom have killed vast numbers over the past several decades. Most notable, the United States and Britain were responsible for the death of possibly a million people in Iraq during the invasion-occupation from March 2003 onward, and yet this case was explicitly rejected by the ICC prosecutor, Luis Moreno-Ocampo. In sharp contrast, Moreno-Ocampo moved quickly to threaten Gadaffi with prosecution based largely on anticipated deaths, but he was doing here exactly what the leaders of the great white powers wanted him to do.

Tutu also glosses over the fact that the tribunals established for Yugoslavia and Cambodia were themselves very selective, serving the interests of the same great white powers that channeled ICC benevolence away from themselves and their clients, and exempting themselves in these specific cases. The Yugoslavia tribunal (ICTY) was organized at the behest of the United States to complement and aid its successful military and diplomatic program to dismantle Yugoslavia. In this case the NATO powers committed both a basic UN Charter violation of aggression as well as specific war crimes in their bombing war against Serbia, but the ICTY never came close to prosecuting those powers.(See Michael Mandel, How America Gets Away With Murder [Pluto: 2004], esp. chapter 6.) With similar political selectivity, no tribunal has ever been established to deal with the long-term ethnic cleansing of Palestine by Israel, a client of the United States and protected also by the EU powers.

The United States is rapidly expanded its military penetration of Africa.”

Tutu also misses the fact that in Africa itself the work of the ICC is extremely selective, with its choices frequently traceable to great power interests and influence. The most massive killings there have taken place in the Democratic Republic of the Congo (DRC), but as the major outside invaders and killers in the DRC, Rwanda and Uganda, are clients of the United States and its allies, the leaders of those states have been entirely exempt from any threat of ICC prosecution. The ICC proceeded energetically in the case of Darfur, which has been Arab ruled and doing lots of business with China, and against Libya, in support of the successful Great Power effort to overthrow Gadaffi, but not against the United States and Ethiopia for their actions in Somalia, subjected to Ethiopian invasion and U.S. bombing attacks.

Tutu seems unaware of the fact that the United States is rapidly expanded its military penetration of Africa, accelerated since the fall of Gadaffi, and that many of the abusive leaders of African states are in “partnerships” with the United States and are under its diplomatic as well as military protection. “Reminiscent of the Scramble for Africa in the late 19th century, the US African Command (Africom) has deployed troops to 35 African countries, establishing a familiar network of authoritarian supplicants eager for bribes and armaments,” John Pilger writes. “In 2011, Africom staged Operation African Endeavour, with the armed forces of 34 African nations taking part, commanded by the US military. Africom’s ‘soldier-to-soldier’ doctrine embeds US officers at every level of command from general to warrant officer. Only the pith helmets are missing. It is as if Africa’s proud history of liberation, from Patrice Lumumba to Nelson Mandela, is consigned to oblivion by a new master’s black colonial elite whose ‘historic mission,’ warned Frantz Fanon half a century ago, is the subjugation of their own people in the cause of ‘a capitalism rampant though camouflaged’.” (Pilger, “Modern times are upside down—an invasion is not news; licence to lie takes you to the movies,” New Statesman, January 31, 2013.)

Tutu claims that the alternatives to the ICC “are too painful: revenge like what happened in Rwanda, Kosovo and Bosnia, or blanket amnesty and a national commitment to amnesia, like what happened in Chile.” His history here is muddled and fails to depart from Western propaganda lines. In fact, the Rwanda killings of 1994-1996 were in large measure carried out by the military arm of a minority faction (of Tutsis) conquering the country following its earlier (1990) invasion from Uganda that was supported by the United States and its allies. This invasion positioned Kagame and his RPF within Rwanda, facilitating the 1994 assassination of the Hutu president and their pursuit of a final deadly assault, again supported by the great Western powers. Similarly, the Bosnia and Kosovo wars were rooted not in any Serbian forward policies but rather in Western encouragement and support of local nationalists intent on independence and collaborating in the West’s dismantlement of Yugoslavia. In Chile, likewise, Pinochet’s bloody conquest and rule, and long freedom from prosecution, was not a result of any “amnesia” but of the fact that his installation and rule received steady U.S. backing.

Tutu fails to mention features of the ICC that reveal its structured bias. For one thing its charter does not make aggression a punishable crime, in this regard following the plan of the ICTY. This is convenient for the United States and its principal allies as they engage in aggression often, so it is excluded although it is the most basic and important criminal act and is a fundamental element of the UN Charter. Furthermore, the ICC’s reach is limited to states that sign on to it, or when the Security Council requests that it act. The United States signed the original Rome statute in December 2000, but it has never ratified that statute, so while denying ICC jurisdiction over its own acts it feels free to bring cases for the ICC to enforce against others. Given its power in the Security Council, Darfur and selected other African states can be subjected to an ICC indictment, but not the United States, Israel, or Kagame’s Rwanda.

Kofi Annan, mentioned by Tutu as an authoritative voice, is notorious for his subservience to the desires of the imperial powers.”

Tutu has convinced himself that the ICC ís “very clearly an African court.” This is based on the facts that 30 of the initial 108 countries signing on to the ICC are African, five of the 18 judges are African, and its vice president and chief prosecutor are African. He mentions also that former Secretary General of the UN, Kofi Annan, says that leaving the ICC “would be a tragedy for Africa.” There is real and surprising naivete in this Tutu perspective. Blacks are second class global citizens, including both the leaders and populace of black-dominated states. Many of their more prosperous citizens seek education, style, and recognition and honors from the technologically advanced great white powers. And the officials of those powers often find it useful to choose some of these enterprising black citizens to give an aura of liberalism and fairness to their sometimes illiberal enterprises. Kofi Annan, mentioned by Tutu as an authoritative voice, is notorious for his subservience to the desires of the imperial powers. Richard Holbrooke himself, noted in his autobiography that Annan’s elevation to Secretary General of the UN followed from his using his temporary authority, in the absence of his superior, Boutros Boutros-Ghali, to approve NATO’s bombing of the Bosnian Serbs. Boutros Boutros-Ghali was soon dismissed for excessive independence. Kofi Annan in high office proved himself to be a reliable instrument of the West. (See Herman, “Kofi Annan and the Art of Puppetry,” Z Magazine, July 2005)

Tutu mentions that the ICC’s current chief prosecutor, Fatou Bensouda, “has huge power over which cases are brought forward.” But Ms. Bensouda, who took over this office in June 2012, has a long record of subservience to Western interests in the Kofi Annan mode. She worked as ICC Deputy Prosecutor for several years during the corrupt Moreno-Ocampo era. Before that Ms. Bensouda had worked for some years as Legal Adviser and Trial Attorney with the International Criminal Tribunal for Rwanda (ICTR), an organization notorious for its focus on Hutu criminals and complete avoidance of indictment of any Kagame-RPF killers (and we may recall that the State Department itself received a message in December 1994 that the RPF was killing 10,000 Hutus per month). In her only case so far as ICC prosecutor she rushed to indict Mali rebels when France invaded Mali in January 2012, in perfect ICC form, reminiscent of Moreno-Ocampo’s rush to help the NATO attack on Libya in 2011. She is nominally independent, but over the years she has passed the subservience test with distinction .

So the ICC may have black representatives, but it is not a black court in its ultimate power and it does not represent the “interests of the [black] people.” just as the UN under a Kofi Annan or Ban Ki-Moon has not represented the broad interest of either black or white ordinary citizens. Tutu mentions that the African leaders who want to have nothing to do with the ICC believe that “neither the golden rule, nor the rule of law, applies to them.” But he ignores the more important fact that the rulers of the great white powers clearly believe that neither rule applies to themselves, and that exercising their power on this non-rule basis and with their geo-political interests in command, institutions like the ICC are instruments of power, not golden rule enforcers. They may sometimes go after bad guys, but this seeming benevolence may help them engage in their own crimes and protect those of their favored clients. Ultra selective and therefore corrupt enforcement is arguably worse than no enforcement.

The human rights field has long been compromised by alignment with the demands of the powerful. The ICC is not alone in this regard. For example, not only the ICC but the ICTY failed to include aggression in their charters as one of the crimes to be dealt with, and both Human Rights Watch and Amnesty International likewise exclude it when they deal with human rights issues. This is in keeping with the demands and interests of U.S. policy-makers who have good reason to want that super-crime kept out of the way when they attack Iraq or Serbia or (etc)., and when client state Israel once again invades Lebanon and threatens to attack Iran. Both Kofi Annan and Ban Ki-Moon have expressed solidarity with U.S. policy-makers and take it for granted that the United States and its principal allies will be the enforcers of human rights actions decided upon, not by UN leaders but by the enforcers themselves.

Sometimes the human rights officials of the UN are uncooperative and anger U.S. or Israeli officials. If so, out they go, as with Boutros Boutros-Ghali, and others as well. For instance, Mary Robinson, the former president of Ireland, who Kofi Annan, to his credit, appointed the UN High Commissioner for Human Rights, eventually ran afoul of U.S. and Israeli officials by criticizing the U.S. “war on terror” and by participating in the 2001 World Conference Against Racism in Durban, South Africa. She departed soon after that conference, after “sustained pressure from the United States led her to declare she was no longer able to continue her work “

Both Kofi Annan and Ban Ki-Moon have expressed solidarity with U.S. policy-makers.”

Robinson’s replacement as UN High Commissioner for Human Rights in 2004 was Louise Arbour, a model of a properly behaving human rights official and quasi-judicial official dealing with human rights. Arbour first came into prominence as prosecutor for the ICTY, where she served NATO interests without deviation; whenever they needed Serbs to be put in a bad light, she rushed in to help. As one illustration, when in May 1999 NATO (really the U.S.) began intensive bombing of Serbian civilian facilities—a war crime—Arbour quickly put up an indictment of Milosevic, based on evidence supplied by NATO, taking heat off of NATO’s criminal actions. (See Christopher Black and Edward S. Herman, “Louise Arbour: Unindicted War Criminal,” Z Magazine, September 2000)

Arbour was prosecutor for the Rwanda tribunal (ICTR) as well as the ICTY, and her performance there was equally corrupt. Most notable, her investigative team headed by lawyer Michael Hourigan informed her in 1996 that the April 1994 shootdown of the plane carrying Rwanda president Juvenal Habyarimana, whose death triggered the mass killings, had been engineered by Paul Kagame and the RPF. After consulting with U.S, officials, instead of prosecuting Arbour closed down the investigation, which has never been revived by the ICTR, steadily in service, like Arbour, to the great white powers who support Kagame.

Interestingly, Arbour’s successor, Carla Del Ponte, did threaten to investigate and prosecute Kagame and the RPF in 2003, but she got no support for this from Kofi Annan or, it goes almost without saying, U.S. officials, and was very soon replaced by Hassan Abubacar Jallow, a U.S./U.K.-approved Prosecutor who promised not to prosecute any Kagame-RPF personnel, whatever the facts.

The system works, and injustice thrives.

Edward S. Herman is a Professor Emeritus of Finance at the Wharton School, University of Pennsylvania.  He has written extensively on economics, political economy, foreign policy, and media analysis.  Among his books are The Political Economy of Human Rights (2 vols, with Noam Chomsky, South End Press, 1979); Corporate Control, Corporate Power (Cambridge University Press, 1981);  The "Terrorism" Industry (with Gerry O'Sullivan, Pantheon, 1990);  The Myth of the Liberal Media: An Edward Herman Reader (Peter Lang, 1999); and Manufacturing Consent (with Noam Chomsky, Pantheon, 1988 and 2002).