By Mark Kersten
In the world of the International Criminal Court (ICC), there are two types of states: the member states that accept the jurisdiction of the Court and the non-member states which don’t. The ultimate goal of the international criminal justice project, beyond making itself irrelevant by eradicating mass atrocities altogether, is to move as many states from the latter camp into the former. But the relationship of African states, as well as that of the United States, with the ICC, should give us pause. The categories of member states and non-member states may make sense in the black-and-white of legalese, but they occlude the existence of a spectrum states that engage differentially with the Court. We need a new category that encompasses a half-way house of states that fall somewhere between being member states and non-member states.
In recent months and years, threats — empty or not — of African states withdrawing from the ICC have proliferated. In just the last month, it was widely, if incorrectly, reported that the African Union was establishing some sort of ‘roadmap’ for states withdrawing from the Court. In a presidential debate in Uganda, the current head of state, Yoweri Museveni, reiterated his view that Uganda should pull out of the “partisan” institution. Observers can debate and discern the validity of such threats, but it is undeniable that they currently dominate perceptions of the role and impact of the Court on the continent. But beyond determining whether any state’s intentions to withdraw membership is real, there is a clear need to understand a simultaneous and underlying trend: the leveraging of membership within the ICC for political gain by states occupying the middle ground between member and non-member state status.
Consider recent events across the African continent. In Uganda, Museveni has masterfully employed a schizophrenic policy on the ICC. Going full-throttle janus-faced, Museveni has decried the Court as unfair and racist, whilst ensuring that Uganda cooperates with the institution’s investigators, poses for photo-ops with Chief Prosecutor Fatou Bensouda and, most importantly, plays hot potato with the fate of Dominic Ongwen rather than having him prosecuted in the able and functional Ugandan courts. The result is an admittedly brilliant ploy: the only ‘leader’ Uganda has enjoyed in thirty years poses as the rally boy for anti-ICC sentiment on the continent, whilst ensuring that the Court remains dependent on him for cooperation and that he enjoys de facto immunity from the institution.
In Kenya, the government famously responded to the charges against current President Uhuru Kenyatta and Deputy President William Ruto with a fully-fledged and devastating attack on the ICC and encouraged a handful of other states to threaten withdrawal from the Court. Moreover, not only have Nairobi’s efforts managed to have most, and at some point likely all, of the charges against its politicians dropped, they have also managed to achieve the appeasement of ICC member states in the process. In short, Kenya has leveraged its membership, as well as that of others on the continent, in exchange for various ‘victories’ at the ICC.
South Africa, traditionally seen as a staunch and committed proponent of the ICC, seems to be taking a page out of Kenya’s ICC playbook. Following the visit of Sudanese President Omar al-Bashir, indicted by the ICC on charges of genocide, war crimes and crimes against humanity, the ruling African National Congress has insisted that the country’s days as a member of the Court are numbered. While South Africa is unlikely to ever leave the ICC, the possibility of it doing so is seen as useful in achieving political objectives. South Africa has undoubtedly threatened a departure from the Rome Statute system, at least in part, as a means to mitigate reputational and political damages incurred by its hosting and stubborn insistence that it had no obligation to detain or arrest Bashir. And it is hard to conclude that they haven’t succeeded — there has been virtually no international condemnation of Bashir’s visit, and the gravest threat facing the South African government stems from domestic courts — and not any international institution.
But African states aren’t the only ones residing in the nebulous territory between being an ICC member state and not. Here, the United States has been something of a trailblazer. Under the presidency of George W. Bush, Washington infamously and pr-actively sought to isolate and undermine the ICC. However, towards the end of Bush’s tenure and into that of Barack Obama, the policy of the U.S. to the Court morphed into what has been termed “positive engagement”. In essence this policy, which might be better described as the absence of a policy, allows Washington to cooperate with the ICC when and where it believes doing so is in its political interests. The irresistible potential of this relationship is what many in the world of international criminal justice see as the pot of gold at the end the rainbow: the U.S. becoming a full and committed member state of the ICC. But America’s current position inevitably and invariably creates a ‘one-foot-in, one-foot-out’ policy, whereby the U.S. can get all of the benefits of supporting certain ICC interventions but otherwise has zero obligations to the institution. This has created moments of outstanding hypocrisy. It is also, in all likelihood, an unsustainable position. If, for example, the U.S. does nothing to address allegations of enhanced interrogation techniques (read: torture) in Afghanistan, the ICC will be forced to open an official investigation and, potentially, issue arrest warrants for U.S. officials. At that point, the current period of positive engagement will almost surely become a chapter in the ICC’s history — and nothing more.
It bears noting that not all states residing in this half-way house are the same. Nor do they necessarily reside there for the same reasons. Moreover, it is probably better to have a state, like the U.S., outside of the ICC looking in, than member states like Uganda, Kenya and South Africa looking out. Nevertheless, this half-way house is a new reality and will determine at least the short- and medium-term future of the Court. States learn from the practices of others, and the positions carved out by states suggest that residing in the half-way house is useful and can effectively serve state interests. Member-state status is now something states leverage — often at the expense of justice.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict
, looking into the politics and dilemmas of international justice.