The ICC and Africa (Part 1)

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Thursday, July 16, 2015 - 08:11

By Mark Kersten*

There is no point denying it. The International Criminal Court (ICC) has a problem with its relationship with African states. Well over a decade into its existence, the ICC has never opened an official investigation outside of the African continent.

Over the last five years, a significant number of African governments has spoken out against the institution and its interventions, insisting that they are biased against Africans. While some may wish it otherwise, these states cannot be swept under the rug of Africa’s dictatorships and autocracies, as offensive as that otherwise would be.

While proponents of international criminal justice have often blamed growing anti-ICC sentiment on the unyielding lobbying of autocrats, such as indicted Sudanese President Omar al-Bashir, today the Court’s sharpest critics are members of democratically-elected governments that previously made a point of supporting the ICC, including those in Kenya and South Africa. Even within the hallways of the ICC and amongst the Court’s champions, there is an acknowledgement that the Court has lost some of its high ground and needs to find a ‘road out of Africa’, i.e., some case or conflict that challenges the widespread perception that the Court is biased or unfair to African states.

Still, it is remarkable just how little we actually know about the relationship between the ICC and African states. In fact, our understanding of the ICC-Africa relationship seems entrenched within a harsh and overly simplistic dichotomy, wherein the Court is either viewed as a neo-imperial, colonial project bent on subjugating members of the Global South or as a deeply misunderstood force for good and a legal institution that rises above politics.

In this first part of a three-part series on the Africa-ICC relationship, I attempt to assess why we tend to view the relationship in such limited terms. In the subsequent two posts, I will examine recent cases that demonstrate the rich political complexity of the relationship between African states and the ICC, as well as new some avenues for assessing and judging the relationship. 

The Africa-ICC Relationship - More and Less than Meets the Eye
The understanding of diplomats, the media, and yes, even most scholars, of the ICC-Africa relationship is overly simplistic and misleading. There are (at least) three key reasons for this.

First, many African states have presented their criticisms of the ICC in over-simplified and factually misleading terms. They often describe the Court as a neo-colonial institution, a tool of the West, or even as a “race hunting” institution. There is little evidence that the ICC is any of these things. Such labels are levelled at the institution not because they are accurate or based on real facts, but because such tropes resonate with many constituencies for political and historical reasons. Indeed, such criticism makes little sense when the record shows that the ICC has legitimated more African governments than it has undermined.

Just as problematically, the ICC has responded to the concerns of African states and communities by invoking equally simplistic ripostes. The institution’s response to African criticisms is, at this point, a broken record: that the institution isn’t against Africa but is, in fact, a Court for Africa; that dozens of African states joined the Court; that they have numerous preliminary examinations outside of Africa. These arguments, as I have previously argued, have been repeated so often that it borders on Einstein’s definition of insanity: repeating the same behaviour or argument and expecting a different result.

Open, candid dialogue

Neither African states critical of the ICC nor the Court itself are willing or able to have an open or candid dialogue about the politics behind their relationship because 1) it is more politically expedient for certain African governments to invoke the tropes of neo-colonialism and racism and, 2) the ICC has a phobia of even implying that it is a political institution or that the situations it investigates are the result of politics or political decision-making.

Compounding matters is the third reason why the ICC-Africa relationship is so poorly understood: that, with a few exceptions, we as observers of the ICC have been remarkably ineffective in assessing and analysing what is really going on in this relationship and teasing out its political complexities.

Crisis industry

Observers have typically indulged and created what might be called a “crisis industry” that presents the Court as an institution that moves from one breaking-point and crisis of legitimacy to another.

Such a crisis mentality prevents us from understanding ICC selectivity. It places our focus on successive crises instead of the bigger picture of why the Court investigates some cases and not others. Specifically, observers of the ICC need to do better a much better job at disaggregating and differentiating two questions:

1)    Why has the ICC targeted those states that it has?

2)    Why hasn't the iCC targeted those states that should be investigated?

In the dominant discourse on the ICC and Africa, these two questions are collapsed. We look at a map, see that all of the states the Court has intervened in are in Africa and assume that this surely must demonstrate some unfair bias.

Structural problem

But there are, in fact, answers to both questions that explain, at least to some extent, the distribution of interventions by the ICC around the globe.

Firstly, there is not a single situation in Africa where the ICC has intervened in which the Court should not have opened an official investigation. Each and every one warranted an ICC intervention. Secondly, for the vast majority of cases where we would like to see accountability for mass atrocities - Syria, North Korea, Burma, - etc., the ICC simply does not have jurisdiction. This is no doubt a problem, but it is a structural problem relevant to the juridictional reach of the Court and not one of choice for the ICC.

To be fair, this is generally understood and often pointed out in assessments of the Africa-ICC relationship. But it is too often taken as a fait accompli defence of the Court. What is needed, much more than a defence of the institution’s record to date, is a critical interrogation of why the Court has chosen not to intervene where it can and where it would be warranted. After all, the Court can and should open official investigations into cases of mass atrocity where it does have jurisdiction - many of which lie outside of the African continent.

Outside Africa

After toiling for years in the accountability purgatory that is a preliminary examination, the ICC should open investigations into Afghanistan and Georgia, where two United Nations Security Council powers - the United States and Russia, respectively - would come under the Court’s microscope. If British authorities can’t sufficiently demonstrate that they are taking accountability for abuses perpetrated by British citizens seriously, the ICC should also open an official into the behaviour of UK troops in Iraq.

Moreover, the Court can and should open an official investigation into Palestine if the long-standing lack of accountability on all sides of the intractable conflict between Israel and Palestinian factions is not adequately addressed. At the same time, the ICC needs to explain why certain states, like Colombia and Libya, get a much longer leash on matters of complementarity than other states. Complementarity, the cornerstone principle by which the Court can only investigate atrocities if the state in question is not doing so itself or refuses to do so genuinely, must be applied evenly and fairly.

Let us not beat around the bush. The ICC does have problems in its relationships with a significant number of African states. But, as with the Court’s relationship with all political actors, the problems are complex and, fundamentally, political. The first step to properly understanding them is to reject the binary of seeing the relationship as one between an innocent, misunderstood ICC and a group of states bent on defying the Court and labelling it as an unwanted, neo-colonial imposition into African affairs. 

Click here for the second part of Courtside Justice: Africa and the ICC - More and less than meets the eye
And here for the third and last part

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.

Ntumba Kapinga

Much has been said about the so called fraught relationship between the ICC and some African states if not the African Union. However, I still believe people have been asking the wrong question. Before I get there , I will appreciate if Mark Kersten sheds more light on what he means by the record show that the ICC has been legitimizing African regime. This is particularly important because the link he provides does not say much about tis aspect of his argument. If the ICC does really legitimize African states, does he refer to the internal or external legitimation and how? The second point that many analysts seem to brush aside without furnishing compelling argument to the contrary is the Pro western tool argument. In fact when Mark argues that the ICC does legitimize African states, he has inadvertantly sided with those who argue that the ICC is an imperial tool. Despite the fact that the imperialism argument is specious and so emotionally loaded, many analysts have so far failed to dissipate this fear . Is the ICC an imperial tool? The answer depends on whether one looks from the perspective of those Africans who easily buy the argument propounded by their so called leaders or from the perspective of those, who, any mention of anti-colonialsm bring back memories reminiscent of the slave trade period. In the Twenty years crisis ( p 228) E . Carr reminds us t, I Quote " rules, however general in form, will be constantly found to be aimed at a particular state or group of states, and for this reason, if no for other, the power element is more predominant and more obvious in international than in municipal law" This brings me to the question which I believe is worth asking. Since a compelling argument ( legally or politically) canbe made about the ICC being an imperial tool ( this does not suggest that is buy into such an argument), the question which I believe should be asked is: Why Africa?" In the end though international crimes are committed in other part s of the world, I do not believe that the prosecutor should strive to indict people outside Africa simply because the policy so far has disenchanted many people.

Thursday, July 16, 2015 - 15:46