The African Bones of Contention with the International Criminal Court
By Joseph Kaifala
Published on July 23, 2014
The Rome Statute, which established the International Criminal Court (ICC), entered into force in 2002. Since its founding, Africans (also its largest states parties) have had reactions ranging from lukewarm to outright animosity against the court. Many Africans view the court as a Western ploy against the continent, and some have accused it of engaging in ‘witch-hunting’ Africans, if not outright racist. Courtenay Griffiths QC, former lead counsel for Charles Taylor at the Special Court for Sierra Leone, has stated that international justice was never the raison d’être of the ICC; claiming that the court is an extension of the wishes of its European funders. Rwandan President, Paul Kagame, has also dismissed the Court “as a new form of imperialism created by the West to control the world’s poorest countries.” This statement comports with claims by other Africans that even in Africa, the Court has been selective regarding whom or what situations to target.
No matter the spectrum through which one approaches the debate, the reality is that all 21 cases and 8 situations currently before the court involve Africans. No other situation or nationality has led to an investigation by the court so far. While the Prosecutor and other prominent Africans such as Kofi Annan and Archbishop Desmond Tutu have argued that the court is protecting Africa by ensuring that victims in the situations before the court receive justice for their victimizations, some contend that the court is allegedly ignoring other victims by failing to indict individuals in other regions who are committing crimes within its jurisdiction. In so doing, the ICC is not only targeting Africa, it is also undermining the object and purpose of the Rome Statute, which is to end impunity for war crimes, crimes against humanity, genocide, and the Crime of Aggression everywhere (the latter to take effect in 2017).
The idea of ending impunity is one that resonates in Africa where many of the crimes within the jurisdiction of the court continue to occur, but that is not to say that similar crimes or complicity to commit such crimes is not occurring elsewhere. So, while Africans might have been enthusiastic about the court at inception, there is certainly an awkward feeling in seeing that only Africans are currently standing trial at a court supposedly established to fight global impunity for grave international criminal offences. Whether the indictment of Africans so far is out of conscious political choices or not, the sole focus on African defendants is a sight that awakens the ghost of imperialism on the continent.
Many have also criticized the court’s activities in Africa on grounds of prolonging violence in situations in which indictments or warrants of arrest have been issued during ongoing peace negotiations or security agreements. The question is whether it is wrong for the court to proceed with its functions purely on international criminal justice considerations and refrain from considering matters of peace and security. It goes without saying that the court has enormous potential for fighting impunity and facilitating criminal justice on the continent, but could that be done within certain parameters of international politics and justice considerations?
When the ICC was established, the international community, including African states, embraced the opportunity of yet another means of justice, accountability, and averting impunity for war crimes, crimes against humanity, and genocide. President Abdou Diouf of Senegal facilitated several consultative meetings in Dakar leading to the Rome conference establishing the ICC in 1998, and Senegal became the first country to ratify the Rome Statute. These actions by Senegal and subsequent ratifications by many African countries raised hopes for the future of the court not only as the backbone of international criminal prosecution, a place to find justice when national courts are unable or unwilling to act, but also as a treaty of hope specifically for African victims who sometimes have no national recourse regarding their victimization.
The court’s establishment coincided with Africa’s newly expressed commitment to peace, justice, and democracy. The new African Union (AU), successor to the Organization of African Unity (OAU), was established with firm commitments to sociopolitical and judicial transformations in Africa. The AU eliminated some of the outdated fundamental political limitations of the OAU, such as noninterference in the internal affairs of member states and inalienable rights to independent existence, and adopted a new charter, the Constitutive Act of the African Union, which enshrined Africa’s commitment to reject impunity, “protect human and people’s rights,” and “consolidate democratic institutions.”
For many African states, the ICC was an opportunity to reject impunity and protect human and people’s rights. However, for some, there was an underlying assumption that the court would be limited to holding only Africans accountable for crimes in Africa and no one else. In reality, many African countries may have conceived of the ICC as an institution that could pursue foreign actors who escape justice at home for crimes committed in Africa. Instead, it appears that most of the court’s attention in its first decade of existence has been focused on African actors and crimes committed in Africa. This attention, whether selective or not, has raised some concerns among even those who are avid supporters of the court. According to Martin Mwale of the New African, “[i]f there is a scintilla of concern for justice and the rule of law in the ICC, then one would expect the Western leaders along with their key political and military functionaries who committed as much war crimes and crimes against humanity as the African brought before the Court, would find themselves under criminal investigation and subject to international arrest warrants.” But respected African diplomats such as Kofi Annan have posed the question of whether the court’s failure to answer the calls of victims elsewhere is reason enough to leave the calls of African victims unheeded. Perhaps it is not, but it is reason enough to raise concerns regarding the selectivity of international criminal prosecution.
The fact of the matter is that more than a decade after the court was established, every single one of the indictments has been against an African. There have been 32 indicted individuals so far, including African leaders such as Omar Al-Bashir of Sudan, late Muammar Al-Gaddaffi of Libya, Deputy Prime Minister, now President Uhuru Kenyata of Kenya, and Mr. and Mrs. Laurent Gbagbo of Cote d’Ivoire. Both the former Prosecutor, Luis Moreno Ocampo, and the current Prosecutor, Fatou Bensouda, have clearly stated that “justice is not a pick and choose system,” and the Prosecutor will go where the victims of crimes within the court’s jurisdiction are, but the current focus of the court on Africa presents an appearance of selective prosecution wherein the court is only going after Africans, knowing as President Kagame has implied, that it is difficult for some poor African states to resist without risking tangible response from Western donors through sanctions or withholding of aid.
While the court continues to deny any bias or selective justice against Africa, many African leaders, politicians, and international legal practitioners have raised serious objections to what they perceive as an imperialist or judicial neo-colonialism in Africa. No matter where one stands on this issue, it is evident that the ICC is swifter in pursuing indictments for African situations than in other places where crimes within the jurisdiction of the Rome Statute are being committed. The fact that the situation in Libya was immediately brought before the court, albeit only against the Gaddafi regime, while the opposition Free Libya Army or regimes in places like Syria, Yemen, and Bahrain have been left alone creates some doubts in many African minds concerning the court’s stance against impunity everywhere. Despite Prosecutor Bensouda’s constant reminders to focus on the victims, and her predecessor’s explanation that actual crimes are committed in all situations charged, there is clear appearance of bias against Africa in the pursuit of charges under the Rome Statute.
Persons in other states that could face possible ICC charges, such as Burma and North Korea, have so far eluded potential ICC investigations, most likely for geopolitical reasons and/or deference to regional interests. Note that only the Security Council can refer the states above, since neither state has ratified the Rome Statute. Situations in non-state parties can only be referred to the court by the Security Council. The ongoing situation in Syria, another non-state party, and the Council’s failure to act so far, underlines the effects of placing international criminal law jurisdiction in a political body. The court’s constant argument that what it pursues is impunity and not African leaders is untenable unless one also agrees that Africans are the only ones violating the Rome Statute with impunity.
Despite the magnitude of demands for investigation and allegations flooding the court, the ICC has commenced investigations into merely eight countries, all of them African, with Mali recently accepting the court’s jurisdiction. The current list of situations includes Uganda, Central African Republic, Democratic Republic of Congo, Sudan, Kenya, Libya, Ivory Coast, and Mali. Three of the indicted Africans are heads of states; a recent addition to that list is Uhuru Kenyata of Kenya. Gaddafi was killed by rebels in 2011; Omar Al-Bashir remains free; Laurent Gbagbo is currently standing trial at The Hague.
The case against President Kenyata and his deputy William Ruto is already facing major hurdles. Judge Christine Van Den Wyngaert, who was temporarily assigned to the Trial Chamber hearing the case, withdrew at the end of April 2013 after criticizing prosecutors for failing to disclose evidence against President Kenyata. Judge Van Den Wyngaert expressed concern over the lack of “cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation.” She cites work overload in her letter of request to be excused from function in her Trial Chamber, which has been redacted, but analysts have speculated much deeper procedural issues concerning the Kenyata and Ruto case. Whatever the real issues might be, Judge Van Den Wyngaert withdrawal combined with the dropping of charges against Ambassador Muthaura, raised serious questions concerning the progress of the Kenya situation.
In addition, the government of Kenya sent a letter to the Security Council in May 2013 calling on the Council to intervene and terminate the case against President Kenyata and William Ruto. It remains to be seen whether the Council has the power to terminate a case before the court, but the letter signed by Ambassador Macharia Kamau clearly stated that the Kenya delegation was not asking for an article 16 deferral, but the “immediate termination of the case at the Hague without much further ado.” The Council has power to defer a case before the court at 12 month intervals, but the Rome Statute does not reach the question of complete termination of an ongoing prosecution. In fact, granting the Security Council power to order the Prosecutor to drop a case would be in direct contravention of judicial independence. Kenya proceeded to take parliamentary action towards withdrawal from the Rome Statute.
One situation that has raised serious concerns about the ICC’s pursuit of justice and impunity is the question of claims arising from US and British war activities in Iraq. The Office of the Prosecutor reported in February 2006 that it had received 240 communications in connection with the invasion of Iraq in March 2003, all of which alleged that various war crimes had been committed. Many of the allegations concerned British participation in the invasion, as well as alleged responsibilities for brutality against persons upon capture and initial custody. There were also many allegations relating to civilian deaths, injuries and damages inflicted by military operations between March and May 2003. In any event, the court has no jurisdiction over US nationals unless the Security Council refers the situation, and such referrals could never survive a US veto. The US has also entered into bilateral immunity agreements with many states parties to the Rome Statute, which is an agreement in conformity with Article 98 (2) not to surrender Americans to the jurisdiction of the court. The US Congress also enacted the 2002 American Service-Members’ Protection Act (ASPA), dubbed by the international community as the ‘Hague Invasion Act,’ in which the president is “authorized to use all means necessary and appropriate to bring about the release of any person who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” The UK, on the other hand, ratified the Rome Statute, which means the court could exercise jurisdiction over the UK with or without Council referral.
In February 2006, Prosecutor Moreno Ocampo published his response to all allegations pertaining to Iraq. Moreno Ocampo stated that there was insufficient evidence to proceed with an investigation in connection with allegations of targeting Iraqi civilians. He concluded that the situation in Iraq did not meet the required “gravity threshold” necessary to initiate any such investigations. He conceded that there was reasonable basis for believing that there had been an estimated 4-12 victims of willful killing and a limited number of victims of inhumane treatment, totaling in all less than 20 persons. However, any reasonable person could compare the Iraq situation with any African situation and reach a different conclusion. Even Archbishop Tutu has questioned the methods of international justice. In a September 2012 article published in the Observer, Archbishop Tutu apologized to Discovery for his refusal to share a platform with Tony Blair at the Discovery Invest Leadership Summit and called for Mr. Blair and George W. Bush to face international criminal charges for their actions in Iraq. According to Archbishop Tutu, “[o]n what grounds do we decide that Robert Mugabe should go the International Criminal Court, Tony Blair should join the international speakers’ circuit, [or] bin Laden should be assassinated….” In his view, those responsible for violations of international criminal law should be ‘treading the same path’ as some of their African counterparts. Moreno Ocampo’s response to the Iraq situation also gives premise to claims by former British Foreign Secretary Robin Cook that “this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.” The question remains, just who were the court set up to bring to book? At this stage, the answer is but clear: Africans.
Allegations relating to bias against Africa are quickly dismissed by ICC officials, but with a court full of only African defendants a decade after its founding, it is politically risky to dismiss allegations of selective justice when similar crimes are being committed elsewhere with impunity. At inception, there was credibility in the view that the concerns African leaders were raising about ICC witch-hunting Africans were inherent rhetoric linked to remnant fears of neo-colonialism and Western imperialism. However, a decade later and with increasing refusal by African leaders to cooperate with the court, it is high time the court listened to African concerns. The view among Africans is that the ICC is becoming a Western court to try African crimes against humanity, war crimes, or genocide, instead of a global court to prevent impunity everywhere. Prosecutor Bensouda may be right that the court’s focus is on “individual criminal behavior against innocent victims,” but it currently appears as though only African victims matter and the only criminals worth pursuing are African.
It is their equal commitment to curbing global impunity that has accelerated African ratification of the Rome Statute, but the ICC is functioning at a time when the African continent is also asserting itself as a political and economic force to reckon with in the conduct of international relations. Therefore, Africans are becoming skeptical about various institutionalized approaches to solving African problems emanating from the continent’s former colonizers. As Colin Waugh has stated, the message currently coming out of the ICC’s pursuit of justice and impunity is “don’t be a dictator in the wrong continent at the wrong time.” Many Africans are not against the idea of curbing impunity, but what they perceive as a usurpation of their sovereignty and judicial independence. This assertion of judicial and political independence has culminated in the refusal by individual AU member states to cooperate with the court, and an express directive not to cooperate, in the form of a resolution of the AU mandating refusal to arrest and surrender Omar Al-Bashir of Sudan to the court.
In 2005, the UN Security Council, using its article 16 powers under the Rome Statute, passed Resolution 1593 to refer the situation in Darfur, Sudan since July 1, 2002 to the ICC. The prosecutor proceeded to indict four individuals in the situation, including the President Omar Al-Bashir. Warrants were issued for their arrest and surrender to the court, and according to article 98 of the Rome Statute, all member-states are required to cooperate in the arrest of those wanted by the court. However, the AU, which had made unheeded requests to the Security Council to defer the case against Al-Bashir to allow for the peace process to continue, adopted a resolution not to cooperate with the court, albeit in regards only to this particular situation.
Most analysts have focused on the AU decision not to cooperate with the court without much attention to preliminary issues underlying the bold and aggressive diplomatic move to counteract the treaty commitments of some of its member states. Paragraph 9 of the resolution, (Assembly/AU/Dec.245(XIII), states with ‘deep regret’ the Security Council’s failure to heed or act upon “the request by the African Union to the UN Security Council to defer the proceedings initiated against President Bashir of the Sudan in accordance with Article 16 of the Rome Statute of the ICC.” The deferral of investigation or prosecution provision in article 16 of the Rome Statute states that “[n]o investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the court to that effect; that request may be renewed by the Council under the same conditions.” The point is that the Security Council ignored requests by the AU to apply its article 16 powers to temporarily estop the indictment against Al-Bashir. The AU resolution not to cooperate with the court was actually directed against the Council, but it nonetheless affects the court.
According to the AU, the request for the Council to invoke article 16 arose from the “unfortunate consequences that the indictment has had on the delicate peace processes underway in …Sudan and the fact that it continues to undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur.” In the AU’s perspective, the indictment was an obstacle to peace, and the Council’s failure to heed or act upon its requests was a sign of bad faith and lack of interest in the Sudan peace process. This perspective is in conformity with the view that the referral and deferral powers granted to the Security Council have led to a politicization of the court and set the stage for selective prosecution through selective Council referrals.
In addition to expressing concerns over the conduct of the prosecutor, the AU specifically cited the Security Council inaction as grounds for its resolution not to cooperate with the court. Paragraph 10 of the resolution states that “in view of the fact that the request by the African Union has never been acted upon, the AU member-states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.” This resolution marked a major trough in ICC-Africa relations and the match has since continued to deteriorate. Many AU member-states have refused to cooperate with the court, especially in their failure to arrest and extradite President Omar Al-Bashir who travels at will to many African countries. Despite the warrant of arrest, Al Bashir has defiantly traveled to African countries such as Egypt, Kenya, Djibouti, Libya, Malawi, Chad, Eritrea, etc.
The AU reiterated its 2009 resolution not to cooperate with the court in its 2010 Kampala Decision. Most of the Kampala Decision is a restatement of the resolution not to cooperate with the court and of the call on the Security Council to act upon the organization’s request to defer proceedings initiated against Omar Al-Bashir. However, the most damning paragraph of the Kampala Decision is the expression of concern over the conduct of the former Prosecutor Moreno Ocampo, whom they accused in exceptionally strong language of “making egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan El-Bashir of…Sudan and other situations in Africa.” This language illustrates that in addition to the AU’s overall grievances concerning what it describes as the Court’s witch-hunting of Africans, the organization also developed personal disdain for the air with which Prosecutor Moreno Ocampo pursued African situations. Many Africans viewed Moreno Ocampo as an arrogant individual and a pawn of Western powers whose motive was judicial imperialism on the continent.
The strained relations between the court and Africa have generated debates concerning substantive provisions of the Rome Statute and the actual pursuit of justice by the court. According to Prof. Amii Omara-Otunnu, “politically conscious Africans are questioning the impartiality of the ICC, as most of them had been enthusiastic advocates for its establishment….” He states that many African human rights advocates stood with internationalists who believed that the establishment of an international criminal court would lead to a new dawn in international rule of law and justice, but a decade later many Africans are beginning to question the modus operandi of the court as manifested by the list of situations and accused thus far.
The court’s activities in Africa, whether intentionally or inadvertently, is producing a general sense of caution and concern among even its ardent supporters. Some genuinely believe the court’s claim that its prosecutions are not politically motivated, but if the origin or identity of accused individuals is of any relevance to the debate, then allegations of witch-hunting, racism and selective prosecution cannot be ignored. It may be the case, as the current prosecutor claims, that ICC justice is not a pick and choose system, but as the African proverb goes, a friend does not wear a mask.
Joseph Kaifala is founder of the Jeneba Project Inc. and co-founder of the Sierra Leone Memory Project. He was born in Sierra Leone and spent his early childhood in Liberia and Guinea. He later moved to Norway where he studied for the International Baccalaureate (IB) at the Red Cross Nordic United World College before enrolling at Skidmore College in upstate New York. Joseph was an International Affairs & French Major, with a minor in Law & Society.
He holds a Master’s degree in International Relations from the Maxwell School at Syracuse University, a Diploma in Intercultural Encounters from the Helsinki Summer School, and a Certificate in Professional French administered by the French Chamber of Commerce.
Joseph was an Applied Human Rights Fellow at Vermont Law School, where he completed his JD and Certificate in International & Comparative Law. He is recipient of the Vermont Law School (SBA) Student Pro Bono Award, Skidmore College Palamountain Prose Award and Skidmore College Thoroughbred Award.
Joseph was a 2013 American Society of International Law Helton fellow. He served as Justice of the Arthur Chapter (Vermont Law School) of Phi Alpha Delta Law Fraternity International. He is a member of the Washington DC Bar.
Article picture: ICC building. Picture by Vincent van Zeijst. Source: Wikipedia