Since its establishment in 2002, the International Criminal Court (ICC) has heard 22 cases and indicted 36 individuals, all of them from Africa. Now, in the midst of multiple ongoing ICC investigations in African countries, the continent has shot back. All members of the African Union (AU) — with the sole exception of Botswana — expressed their distrust in the institution during the 23rd annual African Union summit. Ugandan President Yoweri Museveni even threatened to put forward a motion to have all African countries withdraw from the Court. Robert Mugabe, the new chairman of the AU, has echoed Museveni’s sentiments by insisting that a mass pullout appear on the AU’s next agenda.
Although these leaders have claimed that an inherent bias against the continent has caused the ICC to unfairly target African nations for review, the debate is not so simple. Instead, factors such as the limitations imposed on the Court’s jurisdiction — along with the lack of domestic or regional alternatives for prosecuting crimes against humanity — have been the real culprits in the alleged injustice.
The foundations for the ICC were established after the Cold War demonstrated the need for an international judicial body that could prosecute individuals for war crimes, crimes against humanity and genocide.
The institution, headquartered in The Hague, Netherlands, currently has 123 member states. These states are party to the Rome Statute, which serves as both the Court’s governing document and its statement of intent. Of the 123 countries that have signed and ratified the Rome Statute, just under one-third are African nations, and the continent’s delegates and representatives have historically played an important role both in the drafting of the statute and in the development of the judicial institution.
At first glance, the subjects of the Court’s scrutiny do not seem to be indicative of any geographical or continental bias. Currently, the Court is conducting multiple preliminary examinations in Colombia, Nigeria, Afghanistan, Georgia, Guinea, Honduras, Iraq, Ukraine and Palestine. Despite the wide mosaic of global hotspots the Court seems to consider improper, the only official investigations that have gone to trial have their roots in African countries.
There are a number of structural reasons why this lopsided attention has developed, and one of them is fundamentally jurisdictional. Despite its large membership and narrow focus, the ICC’s jurisdiction is a messy and byzantine affair.
The Office of the Prosecutor is responsible for conducting investigations and may open cases when a situation is referred to the office by a member of the ICC, by the United Nations Security Council (UNSC) or by individuals or organizations that report on crimes in countries within the Court’s jurisdiction. Additionally, jurisdiction is not only limited to crimes committed after July 2002, but also by subject matter. Because the Court can only investigate cases involving genocide, war crimes and crimes against humanity, it is unable to prosecute other serious global transgressions. Further restrictions compound the jurisdictional issue even more.
The prosecutor cannot open a case if a similar one is being tried at the national level. The only exception occurs if the Office of the Prosecutor concludes that there has not been a genuine process of justice on a national level — but such a conclusion is both subjective and political. Crucially, the ICC is limited by its lack of jurisdiction over states that haven’t ratified the Rome Statute — a list that happens to include some of the most powerful nations in the world: the United States, China, India, Pakistan, Israel and Turkey.
The same rule that excludes the United States and Turkey from the ICC’s scrutiny also affects the Court’s ability to investigate and prosecute nonstate actors.
The ICC can only investigate a nonstate actor if it receives an invitation to do so via a state’s formal declaration to the UNSC. However, this process is long and, because such a declaration requires unanimity in the UNSC, is frequently beset by political maneuvering between heavyweight rivals. In the case of Syria, for example, the fact that the conflict involves both state and nonstate actors means that the ICC can only intervene if the UNSC refers the case, which is not likely to happen since Russia and China have veto powers and do not wish for the ICC to get involved in the conflict. The ICC’s limited prosecutorial abilities have also hampered the pursuit of nonstate actors in similar cases.
The cumulative weight of these limitations on the Court drastically reduces its possible targets, resulting in stringent boundaries on its reach. Since many countries in which cases could be brought are out of the ICC’s territory, an emphasis has been put on African nations as the ICC’s primary viable targets, as they make up a large chunk of the small handful of nations still within the Court’s capacity.
Another factor that has calibrated the ICC’s focus to Africa is the lack of viable alternative institutions for the promotion of justice. Currently, the only options are the African Human Rights Court (AHRC) and the Court of Justice of the African Union. Though the two courts are planning to combine, not enough countries have ratified the change. In the meantime, these courts are minimally effective at best; they can hardly punish a normal robber, let alone genocide perpetrators or mass murderers.
Furthermore, the AHRC is limited in that only 27 of 54 African countries have so far ratified its protocol and are party to its jurisdiction. And even in the areas in which the AHRC does retain jurisdiction, it has done little. The Court has yet to prosecute any serious offenders since its establishment 11 years ago. The reality is that attempting to make use of these failed courts will only serve to entrench impunity for African leaders, allowing them to continue to perpetrate crimes.
Although African countries have often tried to resolve their major judicial issues within their national court systems, the ICC has proven time and again to be the only viable option. Both the Democratic Republic of Congo (DRC) and the Central African Republic (CAR) sought to try perpetrators domestically but turned to the ICC for help after failing to make headway. The DRC could not agree on the details for establishing a tribunal; the CAR could not prosecute the leader in question due to the political immunity he was guaranteed as vice president.
A recent case in Kenya followed a similar pattern. After disputed presidential elections in December 2007, violence rocked several parts of the country, leaving over 1,000 people dead and thousands of others injured or displaced.
At first, the national government sought to open a criminal investigation into the primary instigators of the violence, the Ocampo Six, which included the Deputy Prime Minister, the Industrialization Minister, the Education Minister, a cabinet secretary, a former police commissioner and a radio executive. But when the investigation began to face difficulties, the Kenyan parliament voted to end the internal examination and instead send a report to the ICC prosecutor. The prominence of the slogan, “Don’t be vague, let’s go to The Hague,” demonstrates the popular support for the move. The ICC subsequently accepted the case and completed its initial investigation within a year, summoning the Ocampo Six to trial in two separate cases to denounce their crimes against humanity.
In this light, it makes sense that the ICC’s spotlight shines so harshly on the African continent. The disproportionality lamented by African leaders is primarily driven by limitations on the ICC’s jurisdiction and the lack of alternative judicial pathways in Africa. Yet in a world where race and geopolitics are sensitive global issues, the continent’s luminaries and other ICC critics have not hesitated to express their opposition to the ICC.
Recently, the ICC’s attentional imbalance on Africa has resulted in several African leaders criticizing the Court’s focus on the continent as inappropriate: The threat to pull out of the Rome Statute en masse is just one example of angered rhetoric from African leaders.
But it is a critical one, since a mass pullout would damage the Court’s functionality. Recognizing both African anger and the importance of its African members, the Court has taken some steps to placate its critics. But even recent changes like the appointment of Gambia’s Fatou Bensouda to the Office of the Prosecutor have not spared the Court from increasingly harsh critiques.
One such critic is former AU Commissioner Jean Ping. Ping believes that the Court is not just unfairly targeting Africa, but that it is designed to do precisely that. His lament can be summed up in his recent exclamation: “Why not Myanmar…Why not Iraq?”
Ping’s question has an answer: Myanmar is not party to the ICC, and the Court is indeed targeting countries like Iraq.
The current Iraq case is undergoing a procedural “Phase 2” investigation, a subject matter jurisdiction phase in which the Court analyzes all the information it has gathered to determine whether the preconditions for it to exercise its jurisdiction are satisfied. Although the Court decided to discontinue its investigation in 2006, the then-Prosecutor for the ICC, Luis Moreno-Ocampo, announced that investigations could be re-opened if more information became available.
And so it has. Last January, the European Center for Constitutional and Human Rights, together with Public Interest Lawyers, submitted a communication to the Court alleging the responsibility of United Kingdom officials in war crimes involving systematic detainee abuse in Iraq from 2003 to 2008. While Iraq is not party to the Rome Statute, the UK is, placing a new case within ICC jurisdiction.
The Court is now in the process of conducting a preliminary examination to determine whether there is a reasonable basis for it to proceed further with its investigation. It remains to be seen if the ICC will rise above the criticism regarding its geographical focus and open a case against the UK.
Though the AU’s claim of bias may be unsubstantiated, it is not their only concern regarding foul play from the ICC. The AU has also accused the Court of breaking international law, saying that by investigating sitting heads of African states, it has failed to respect political figures’ guarantees of immunity from prosecution.
Prosecuted figures include the current president and vice president of Kenya as well as the president of Sudan. The international immunity law stems from an understanding that while in office, state officials fulfill critical executive duties and that undergoing prosecution for criminal offenses could hinder their performance.
Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus summed up the sentiment at a recent summit, when he said that asking a sitting president to appear before the Court was tantamount to infringing on the sovereignty of a country. And in this regard, the critics may be right: The ICC has indeed taken improper action against African leaders while they remained in office.
Yet even this complaint is not so clear-cut. In the Sudanese case, like the Libyan one, it was the UNSC that referred the problems to the ICC.
Both referrals had the full support of all the African countries that were represented in the UNSC at the time. And in even more striking irony, many of the African cases investigated by the ICC were referred to the Court by the governments of these countries themselves. The procedures of the ICC require that justice be a two-way street: When the international community or even a country’s own government asks for international aid in bringing justice, the ICC has a heavy responsibility to take act.
Much of the current criticism of the ICC is reflective of some questionable political practices. In Kenya’s Ocampo Six case, for example, although government officials originally referred the case to the ICC, the rhetorical tide quickly began to turn after the initial investigation closed.
Those who suspected that they might be held culpable as a result of the trial quickly began to denounce the Court. Many of the same people who had originally selected the ICC as their preferred pathway towards justice began to openly complain about the Court’s failures in handling the case, accusing it of basing its evidence on hearsay rather than conducting a serious investigation.
Ultimately, facing a new surge of pressure from Kenya, the ICC had to drop most of the charges due to what it deemed “noncooperation by the government.” The Kenyan government has also vowed to continue to impede the progress of the ICC on any remaining cases in order to prevent it from taking any decisive steps towards the provision of justice. In short, Kenya exemplifies the way in which criticisms of the ICC and its supposed focus on Africa have primarily become political maneuvers and knee-jerk reactions from those who are likely to face justice in The Hague’s halls.
Nor is Kenya the only government to have backtracked on its support for the ICC after the Court’s scrutiny turned to its leaders. For example, in 2003, under the leadership of Laurent Gbagbo, the government of Côte d’Ivoire submitted a declaration accepting the jurisdiction of the ICC.
Following violence related to the country’s disputed elections of 2010, the new president, Alassane Outtara, reaffirmed the former declaration, an act that ultimately led to the indictment of former President Gbagbo. Perhaps unsurprisingly, Gbagbo and his supporters’ public view of the Court shifted once it had issued arrest warrants against him and his wife.
So although the statement that the ICC has prosecuted African individuals disproportionately is undeniable, the disproportionality is not, as has been alleged, the result of any inherent prejudice. Rather, it is the result of structural factors such as limitations on the ICC’s jurisdiction and a lack of alternatives for effectively prosecuting African leaders. Moreover, the accusations are often rooted in the desire of powermongers to deflect unwanted scrutiny from their own actions, rather than in any substantive malaise lurking at the core of the ICC.
As long as the ICC remains the Mother Continent’s best path towards justice, African countries would be wise to avoid retreating from the Court in the name of regional autonomy.