The ICC is in danger of losing its way. A new charge – crimes against democracy – would revitalise it

We believe it should be a crime to forcefully overthrow a government

President Kenyatta is due to stand trial at the International Criminal Court (AFP/Getty Images)

“Justice means minding one's own business and not meddling with other men's concerns”. If Plato’s rule were applied to the International Criminal Court, then it would be judged a failure. In its twelve-year existence it has been accused of meddling in the legal affairs of member countries, unfairly targeting black Africans for prosecution and working exclusively in the geopolitical interests of its mainly European funders. Now with the expectation that a delay in the start of its most high profile case to-date - against the current President of Kenya - is a precursor to the case collapsing, the Court and its funders must consider its future direction.

What form this takes will be the future basis for not only the ICC but for the very cause of international justice. In the debate as to what comes next legal experts have sought to address the minutiae: investigation services and witness protection, all of questionable quality, have undermined the ICC’s work and must be overhauled. These are of course critical to the smooth functioning of any court, but without a grand vision the ICC will never be a true arbiter of international law.

We believe the ICC and its supporters must be bold and identify new crimes the Court can seek to judge. Already an institution as much owned by civil society and human rights groups as lawyers and politicians, the ICC must reinvigorate its vision, starting by considering what it should be a firewall against. It can be argued that crimes against humanity are a clear example of such a vision – yet as an offense it is broad-brush. We believe another which is devastating to communities who succumb to it, one not yet under the jurisdiction of the Court, could be that spur to renewal of trust. We propose a new charge of crimes against democracy.

Under such a crime, those who have directly acted to overthrow a democratically elected government could stand to be prosecuted. It is not feasible for the ICC or any other international court to consider it a crime not to have a democratic system: indeed many of the countries that are State Parties to the ICC have a tenuous claim be democratic. Others have clearly none at all. Rather we believe it should be a crime to overthrow a government that has been voted into office by the free will of the people.

Such a crime would allow the ICC to begin to address the claim that it acts as a tool of the geopolitical interests of its Western European funders. Unlike accusations of crimes against humanity, where those before the Court have tended to be those who have fallen out of favour with European governments or the African leaders they support – a form of victor’s justice – a crime against a democratically elected government could not so easily be accused of bias.

A case in question is Egypt. Last month the spiritual leader of the Muslim Brotherhood Mohamed Badie was put on trial, along with 682 supporters. The week before a further 529 members and supporters of Mohammed Morsi’s former government were sentenced to death in a court decision no one could call fair or just. While the US and the EU clearly have had little time for President Morsi and his Muslim Brotherhood they are the only freely and legitimately elected government Egypt has ever had. That it is clear Western governments did not want them in office is not the point: for better or worse it was the Egyptian people who elected them.

Supporters of Egyptian Defense Minister General Abdel Fattah al-Sisi gather in Tahrir Square to celebrate the third anniversary of Egypt's 2011 uprising on January 25, 2014 in Cairo, Egypt. (Getty Images)

It is also a simple fact that the way Morsi and his supporters were ousted from office was not democratic: it was through violent means. Certainly they had become extremely unpopular during their short time in office – but many administrations do. Some recover their popularity; others do not. However they should have been ejected, if that was the will of the people, through the ballot box, not the bullet.

Field Marshal Sisi has crushed his opponents and few doubt he will gain a resounding victory in the forthcoming Presidential poll. But because of the way he will have attained power – through deposition of a democratically elected government, the brutal suppression of its supporters and the use of courts to remove them permanently through the exercise of the death sentence - means it will be hard to consider him legitimate.

Similarly there may be questions to answer for the new government in Ukraine. Whether that government is “transitional” as described by the West or “fascist” as described by Russia is a matter than can be debated. What is certain is it was not elected. It may be there is far less or indeed no evidence members of the current administration were personally directly involved in the overthrow of the Yanukovych government, in contrast to the position of the military leadership of Egypt who undertook the overthrow of Morsi. Yet the question as to the legitimacy of both their mandates is hard to justify.

It may be extremely difficult for the mainly European funders of the ICC to want to relinquish control over its direction. Yet other intergovernmental institutions have shown this is possible, over time. The UN was founded alongside America by the mainly European victors of the Second World War, yet today the UN is influenced by many more voices than its permanent Security Council members. Similarly the International Criminal Court must broaden beyond the geopolitical interests of its original founders and funders if it is to become a true arbiter of international justice.

To be the protector of that most precious of things - the right to choose your own government - and to be the Court that holds to account those who have confiscated that right, may just be the vision the ICC needs. Perhaps if Plato were alive he perhaps he may agree that, if meddling in other men’s concerns is a crime, one of those concerns must be the right to bring down your elected government exclusively through the ballot box.

David Young is a lead defence Counsel at the Special Tribunal for Lebanon in The Hague. Abbas Lakha QC is a Consultant to one of the Lebanon Tribunal defence teams, and one of Britain’s leading barristers in the field of extreme violence cases.