The ICC and Africa (Part 3)

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Thursday, July 30, 2015 - 09:18

By Mark Kersten*

Over the last two weeks, I have attempted to critically examine and assess the relationship between African states and the ICC. In the first post, I critiqued popular assumptions about the relationship - that it is constituted either by an unfair, neo-colonial ICC against an unwitting continent or by a misunderstood institution that is really just representing the interests of Africans as a ‘Court for Africa’. It bears repeating: in attempting to understand the politics and complexity of the relationship between African states and the ICC, such perspectives do more to obfuscate than illuminate. 

In the second instalment, I explored three cases: the surrender of senior Lord’s Resistance Army commander Dominic Ongwen to the ICC, the visit of Sudanese President Omar al-Bashir to South Africa, and the prosecution of heads of states. None of these crucial developments and issues can feasibly be explained by the dominant understanding of the Africa-ICC relationship. 
Of course, it would be foolish to assume that these posts have been able to do anything more than scratch the very surface of this dynamic relationship. To insist otherwise would be to fall prey to oversimplifying the relationship. But what I have tried to demonstrate is that the Africa-ICC relationship is far more complex, both legally and politically, than presented by the Court, African states or observers. We need to do better than seeing the relationship within harsh dichotomies or tropes.
In this third and final post, I want to expand the way that we look and judge the Africa-ICC relationship. Specifically, we need to expand the parameters of our understanding by examining and assessing the relationship not between African states and the Court but between African communities and international criminal justice more broadly. But first, here are some broader conclusions that flow from this series. 
Open and honest discussion
First, all of the parties involved - African states, the Court, and observers of all stripes - can and should do more to foster a more open and honest discussion and debate regarding the concerns and criticisms that African communities have of the ICC. Proponents of the Court need to understand that these criticisms are real or so widely perceived that they need to be treated as real. The ICC itself desperately needs to improve the way it communicates its work. The Court’s public relations strategies are ineffective and, as a direct result, the ICC’s role is too often misunderstood, feeding a fertile breeding ground for misperceptions. The Court itself has done very little to deal with the perceptions of its work head-on. Its social media strategy is essentially non-existent and its website might as well be the dead-end of the internet. Being more transparent, improving its social media engagements, and instituting an innovative and smart public relations strategy could dramatically improve knowledge of the Court’s work in affected communities and around the world. 
At the same time, there is a need, for all parties, to acknowledge that the ICC has not - and perhaps cannot - transcend international politics. A recent op-ed suggested that the Court’s focus on African states is a result of them being ‘low-hanging fruit’. There is a debate to be had that the Court’s focus to date has been on African states, not because they are African but because they are weaker states. Part of this is structural: many strong states (the United States, Russia, China, etc.) haven't signed the Rome Treaty and are often outside the jurisdictional reach of the Court. Yet, to a remarkable extent, they are able to steer the Court’s focus via referrals from the United Nations Security Council. At the same time, there is at least some correlation between fragile states, political violence, and weak judiciaries - all of which are variables that help establish weak state ‘candidates’ for ICC intervention.
For scholars and interested observers, it behooves us to interrogate this nexus of power, political interest and justice. The primary focus of analysis of the ICC - both critical and not - has been on the Court’s impacts. This has spawned an important debate on issues such as the relationship between conflict resolution and accountability as well as how to establish accurate measures of the ICC’s effects. These are no doubt important, but we should also go behind the veneer and explore the largely untapped relationship between diplomacy and the Court. Here, as I have argued elsewhere, we need a much richer understanding of the institutional interests that guide the ICC’s decision-making and, ultimately, its interventions. Gaining such an understanding may just be the key to truly discerning the Court’s selectivity both between situations and within them.
In general, the debate about the Africa-ICC relationship needs much more critical analysis. There is both more and less than meets the eye. But the way the relationship has been presented to date hinders, rather than helps, us see it.
The relationship between Africa and the ICC international criminal justice relationship 
Digging deeper into questions of power and diplomacy would enrich our understanding of the Africa-ICC relationship. But we also need to do a much better job understanding the broader relationship between African communities and international criminal justice. There needs to be a shift in focus away from the ICC-Africa relationship to the role and development of international criminal justice on the African continent. And here there is a tremendous wealth of projects that needs sustained attention and scrutiny.
There are numerous ongoing proceedings against alleged perpetrators of war crimes and crimes against humanity. In addition to the ongoing proceedings against Hissein Habré in Senegal, there have been domestic trials of ICC indictees, including Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya as well as former Ivorian first lady Simone Gbagbo. For a host of reasons, these trials, especially those of former Gaddafi regime officials, have been highly controversial and rightly criticised. But it does seem evident that states are taking prosecutions for international crimes increasingly seriously. 
In response to crises that instigated ICC interventions, governments in both Uganda and Kenya have created institutions within their judiciaries that are able to investigate and prosecute international crimes. Crucially, the International Crimes Division in Uganda and especially the International and Organised Crimes Division in Kenya, hold the promise of linking the prosecution of transnational organised crimes to international crimes, an almost completely unexplored terrain that desperately needs attention. Thus, while both institutions have severe limitations, the fact that the governments of Uganda and Kenya see that it is necessary to create bodies that are focused on prosecuting international crimes domestically is an important and novel development. Moreover, while the work of these institutions may be limited by direct or indirect political interference, over time, brave investigators and prosecutors may be able to have a major role and impact in meting out justice and accountability for atrocities. 
African Court on Human and Peoples' Rights 
For the last few years, there has been much discussion about the potential expansion of the African Court on Human and Peoples' Rights to include international crimes. Serious questions need to be answered before that can happen, notably the ever-sticky issue of who will pay. Moreover, the endeavour would be virtually pointless if the court was prohibited from prosecuting any government officials and thus was relegated to being a court solely for rebels. Nevertheless, it is a welcome move that African states and groups are seriously discussing and debating a regional institution that would prosecute international crimes. If nothing else, it drives the continued discussion of African responsibility and ownership for justice and accountability forward. 
There’s little doubt that African communities and leaders are demonstrating that the ICC is not the only game in town. When it comes to prosecuting mass atrocities on the continent, it is not ‘ICC or nothing’. Nor should it be. The Central African Republic has recently created a hybrid tribunal to investigate alleged war crimes and crimes against humanity committed by anti-Balaka and Séléka forces. While the Special Criminal Court is still more of an intellectual exercise and paper tiger than a functioning reality, if established and staffed, the hybrid tribunal would work in a complementary fashion with the ICC, ensuring that a broader section of perpetrators is held to account. 
In addition to these projects and developments, it can’t be forgotten that hundreds, if not thousands, of civil society organizations across the African continent work tirelessly to promote awareness of human rights abuses, push for justice, and acknowledge the suffering of victims and survivors of atrocities. African communities have an embarrassment of riches when it comes to leadership on issues of justice and accountability. 
All of these projects and developments have limitations and all face serious political obstacles. But they demonstrate that real and potential leadership on international criminal justice exists within African states. Here it is worthwhile adding a word of caution. There is a danger of viewing the above solely through some broad conception of complementarity. Doing so attributes ownership of progress to the Court when some of the greatest achievements should be attributed to the work of African communities. 
From the outset of the Court's creation, African states and communities have been indispensable to the work and functioning of the ICC. In recent years, however, the relationship has suffered. What is needed now is sustained attention that appreciates the rich political and legal complexity of the relationship between the Court and African states, as well as the remarkable developments in international criminal justice on the continent. 
Read Part 1 of Mark Kersten's series "The ICC's 'Africa problem' - more and less than meet the eye
And click here for Part 2 of this 3-part series
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.

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