Invited Experts on Africa Question

Bassiouni Avatar Image M. Cherif Bassiouni Distinguished Research Professor of Law Emeritus DePaul University College of Law

Hansen Avatar Image Douglass Hansen Legal Officer International Institute of Higher Studies in Criminal Sciences

The Inevitable Practice of the Office of the Prosecutor

It was not clear in 2002 how the court would function precisely because of the multitude of challenges it faced. Eleven years later only some of those questions have been resolved. [...] It is clear, however, that the ICC is an institution with the capacity to change habits and outcomes. We may be seeing the start of that in Kenya today, where the electoral violence of 2007 has thankfully not been repeated, perhaps because of its ongoing intervention which was a major topic throughout the political campaign.

Established institutions condition the conduct of their leaders and those who work within their structures. New institutions, however, are conditioned by the personalities and characteristics of their first leaders and staffs, as they lack existing institutional controls and cultures.1 This was clearly the case with the International Criminal Court (ICC) and its prosecutorial division, the Office of the Prosecutor (OTP), and an understanding of the Court requires an appreciation of the circumstances of their creation and first 11 years of operation.

Since its inception in July 2002, the OTP has faced two primary critiques: first that it has been inefficient, and second that it has preoccupied itself with Africa and failed to investigate equally severe conflicts elsewhere. These criticisms do not arise in a vacuum, however, and must be understood within the context of the court’s recent creation, administrative and personnel challenges, legal impediments imposed by the Rome Statute, and external pressure to prosecute as many cases as possible in order to satisfy its value-oriented goal of “guarantee[ing] lasting respect for and the enforcement of international justice.”2 These factors have made the choices of the prosecutor largely inevitable, although future practice must be reformed.

In assessing the work of the ICC and the OTP, one must come up with a benchmark against which to measure it. But it is unclear what standard should be used as the ICC is a sui generis institution that had to be built from the ground up within the context of ongoing conflicts that demanded immediate attention. While it shares some similarities to the practices and procedures of national judicial institutions, it is also forging a new path based on the adoption and incorporation of practices and staff representing divergent legal philosophies, traditions and practices. It also shares some similarities to the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as to some extent the mixed model tribunals (Sierra Leone, Kosovo, Cambodia, East Timor, and Lebanon), but again its provisions make it different in scope and operation from those institutions. Nevertheless, there are some relatively objective characteristics and factors that are applicable to the evaluation of the court and its prosecutor, the person upon whom the enormous responsibility was bestowed to establish and run its investigatory and prosecutorial arm.

The first prosecutor, Luis Moreno-Ocampo of Argentina, was sworn in in June 2003 and tasked with establishing the OTP, which is the investigative and prosecutorial engine of the ICC.3 This significant project not only required the development of prosecutorial policies based on his interpretation of the Rome Statute and the Rules of Procedure and Evidence,, but also the nuts and bolts of hiring personnel, creating internal and administrative structures, and developing procedures and professional accountability mechanisms from scratch. Further, all of this had to be done within the context of UN standards of diversity and national quotas, which often led to a modern day tower of babel as lawyers attempted to meld together divergent and sometimes mutually exclusive policies and practices.

It is clear that the operation of the OTP in its nascent stage was a product of Moreno-Ocampo’s professional experience, the clarity of his vision, and his personal characteristics including his character, poise, management style and personal probity. For Moreno-Ocampo this task was particularly challenging, as his experience was limited to an eight-year period as an assistant prosecutor in Argentina and then domestic defense practice, he had no international legal experience, he was largely unfamiliar with investigations and case management, and he had never before run a large office.4 Though no one doubted his good will, high aspirations and commitment, his management style left much to be desired, as is well known, and his personal behavior also raised questions. By the end of his term, Moreno-Ocampo’s record had raised questions and caused consternation among the Court’s supporters and outside experts. He was also accused by critics of bias in selectively targeting African cases and failing to pay sufficient attention to conflicts in the rest of the world.

The challenges posed by the creation of the OTP were mirrored throughout the Court, as each organ had to come up with its own internal procedures and practices and then forge working arrangements with each other. Additional pressure came from the Assembly of State Parties (ASP), which had its own expectations, and in particular from influential states within the ASP. External pressures came from major political powers that exerted influence over the ICC, as well as NGOs who wanted action and academics who critically examined each step the court took.

In essence, the ICC had to balance numerous, often divergent, interests, while simultaneously satisfying its supporters and maintaining its public support. This required bringing cases to trial as quickly as possible in order to be seen to be doing something and satisfying its mandate. It was not clear in 2002 how the court would function precisely because of the multitude of challenges it faced. Eleven years later only some of those questions have been resolved. What the ICC will become and how it will operate is still a matter of some speculation, although these unresolved questions are increasingly coming into focus. It is clear, however, that the ICC is an institution with the capacity to change habits and outcomes. We may be seeing the start of that in Kenya today, where the electoral violence of 2007 has thankfully not been repeated, perhaps because of its ongoing intervention which was a major topic throughout the political campaign.

Leaving aside the question of whether Moreno-Ocampo’s personality and management capabilities were well-suited to the needs of the first ICC prosecutor, the more important question remains as to whether he pursued the right cases in light of the political realities, public perceptions of the court’s activities, and challenges identified above.5 The Prosecutor had so many challenges and difficulties to address that it is difficult to imagine how any person, no matter how competent and talented, could have addressed them satisfactorily in the eyes of so many demanding constituencies. Fortunately, however, the OTP’s resources and staffing were more than ample. Indeed, few institutions have had as many resources at their disposal as the ICC. Over the 11 years since it came into being, the ICC has been allocated approximately €942.8 million by the ASP. For the year 2013 alone, the OTP has an allocated staff of 2176 and an approximate budget of €28.3 million, both of which account for approximately a quarter of the Court’s total.7

While these resources allowed the OTP to overcome some of its initial difficulties, they have also fostered questions over its efficiency. The next question then is what the Court, and in particular the OTP, has accomplished. During its ten year existence, the OTP has announced the existence of preliminary examinations into 18 conflicts,8 eight of which resulted in formal investigations,9 seven in various types of pre-trial preliminary examination,10 and three in the declination of further investigation.11 Seven of these investigations have led to the issuing of warrants.12 No other examinations have been made public.

While there is no clear metric for measuring the efficiency of the ICC and the OTP, the most readily apparent one is expenditure per indictee. Since issuing its first indictments in July 2005, the OTP has initiated proceedings against 30 individuals. Excluding the budget for 2013, the court has spent approximately €27.6 million per indictee.13 On its face this number suggests that the ICC has achieved less than its predecessor tribunals for the former Yugoslavia and Rwanda, which indicted 161 and 91 individuals, respectively,14 and spent far less per indictee.15 It is clear that more needs to be done to fulfill the court’s mandate to help “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”16 While there are clearly other factors involved, the ICC and OTP’s productivity has been limited. If these numbers are the standard for the future, and these the likely costs of ICC prosecutions, it is hard to think that the Court will continue to justify itself in the eyes of the ASP. More needs to be done in the future to improve efficiency and show that the Court is sustainable.

Beyond the general efficiency of the OTP, critics have also questioned its apparent focus on Africa and its failure to address obvious violations committed by other states across the globe. As indicated above, all eight investigations currently under investigation by the OTP are in Africa. This has rankled African leaders, some of whom have complained that the continent is being singled out and that the OTP is applying a discriminatory17 double standard.18 Much of this critique has come from African heads of state and regional leaders, who increasingly closed ranks during Moreno-Ocampo’s term as prosecutor, and rejected the ICC’s attempts to investigate and prosecute new cases on the continent. For instance, in the wake of the ICC’s indictment of Sudanese President Omar al-Bashir the African Union’s (AU) Peace and Security Commissioner Ramtane Lamamra expressed the “legitimate concerns” of African heads of state over a double standard towards the continent and that the “conduct of the prosecutor…[represented] a glaring practice of selective justice.19 In 2011 Jean Ping, the Chairman of the AU, went so far as to declare that the AU would not cooperate with the ICC after the indictment of Muammar Qaddafi due to the court’s “discriminatory” practices for only investigating situations in Africa, decrying its failure to intervene in Afghanistan, Iraq and other places where Western powers have been implicated.20 As Chairman Ping remarked cuttingly, “What have we done to justify being an example to the world? Are there no worst [sic] countries, like Myanmar?”21

Perhaps the most strident critique has come from Courtney Griffiths, the lead defense attorney for former Liberian President Charles Taylor. During summation before the Special Court for Sierra Leone, Griffiths argued that Taylor’s prosecution—and by implication the prosecution of those at the ICC—was “a 21st century form of neocolonialism.”22 In a later opinion piece Griffiths attacked the perceived cynicism of the ICC, writing:

(T)he requirement of international justice is not the raison d’être of the International Criminal Court at all. Instead, the court acts as a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their power and influence, particularly in Africa.23

The unease of African leaders over the state of ICC investigations has manifested itself in their refusal to cooperate with it. One example is the refusal of most African states to detain and surrender al-Bashir to the Court. At a 2009 summit of African Heads of State in Sirte, Libya, a declaration was made that African states “shall not cooperate…in the arrest and transfer of President Omar al-Bashir of the Sudan to the ICC.”24 Similarly, after the Security Council referred the situation in Libya to the ICC, the AU came out in strong opposition to the referral.25 One other possible outcome is that African states will withdraw from the Rome Statute over these investigations, a possibility that was floated after the indictment of al-Bashir.26

The question then arises as to why Africa became the primary target of ICC investigations, and whether this violates notions of decency and fairness. It is a salient question, and people of good faith must ask why this has come about and whether it is a form function of selective justice and neo-colonialism, as argued by various critics, or rather a function of the court’s jurisdictional limits, the “geography” of conflict today and the capacity of these states to investigate and prosecute matters on their own. Given the nature of the allegations, it is not enough to cite the nationality of the court’s judges or prosecutor, or the good will of the drafters of the Rome Statute, and a reasonable explanation must be given.

It is worth noting that half of the situations in Africa over which the ICC has expressed jurisdiction—CAR, DRC, Mali and Uganda—were the result of self-referrals by those states. Two situations—Libya and the Sudan—were the result of Security Council referrals and were not discretionary. Finally, two situations—Côte d’Ivoire and Kenya—were the result of a proprio motu determination of the prosecutor to initiate an investigation. But these last two cases require some further clarification. Côte d’Ivoire recognized the jurisdiction of the court in December 2010, after the outbreak of the civil war between forces loyal to Alassane Ouattara and Laurent Gbagbo. It was thus more in the nature of a state referral than a straight exercise of prosecutorial discretion, as it was clearly the intent of Ouattara to have his opponent investigated in order to strengthen his own position.27 The situation in Kenya only came within the jurisdiction of the court after failed domestic attempts to implement accountability mechanisms, as recommended by the Waki Commission and affirmed by Kofi Annan. It thus reflects in a convoluted way a self-referral by Kenya because the parties could not agree to the domestic alternatives that they had consented to in the aftermath of electoral violence in 2007, namely the inquiry by Annan and the report of the Waki Commission.

In short, the only situations in which the Court’s jurisdiction is truly controversial are those that have been referred by the Security Council. In fact, African political leaders have only objected specifically to these two, and therefore the argument should perhaps be refocused on the role of the Security Council, and not the ICC, in African conflicts, as well as the Council’s lack of action elsewhere.

Notwithstanding the preponderance of self-referrals among the active situations before the ICC, it must be recalled that the Court functions on the principle that its jurisdiction is “complementary to national criminal jurisdictions.”28 This means that the court cannot exercise jurisdiction if a state is currently investigating or prosecuting a case, where it has previously investigated or prosecuted a case, or where it previously investigated a case and declined to prosecute, unless there is evidence that the state was “unwilling or unable genuinely to carry out the investigation or prosecution.”29 In other words, the ICC is predicated on the belief that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”30 Not only does this mean that the primary responsibility for the enforcement of international criminal law rests with states, but also that domestic prosecution is preferable to the intervention of the ICC.31

The complementarity provision of the Rome Statute means that the ICC cannot automatically usurp jurisdiction from states or steamroll local considerations or needs, and that states may exercise jurisdiction over the wishes of the OTP if it so choses and it is able to conduct a genuine investigation and prosecution. It is worth noting that, of the eight cases currently under investigation, only Libya has challenged the jurisdiction of the court.32 Accordingly, it cannot be said that the affected African states themselves object to the conduct of the ICC. Within this context, one might rightly ask whether unaffected African states and their leaders have any greater purchase to criticize the ICC or its conduct than any other state or individual. If the subjects of the ICC’s purported anti-African and neo-colonialist impulse do not perceive themselves to be its victims and welcome the intervention, and those who do perceive these impulses are not affected by the conduct, we might reasonably reject the strong form of the argument as alleged.

Notwithstanding the lack of domestic action by the states under investigation, it is worth pausing to ask whether these states should deal with these issues themselves rather than allowing the ICC to assume jurisdiction. There are a number of good reasons for them to do so, perhaps most importantly the enhancement of their domestic judicial capacity and the rule of law as a long-term solution to these problems. The problems in the DRC or Côte d’Ivoire are not new and are unlikely to disappear tomorrow, and any long-term solution requires the enhancement of domestic capacity.

As described above, the essence of complementarity is the presumption that states can and should address violations of international criminal law themselves. This is predicated on the willingness and ability of states to do so, something that requires significant legal reform, capacity building and infrastructure investment.33 Paradoxically, the states least affected by violence are usually the most capable of doing so, while the states most affected by violence are usually the least able.34 At present it is hard to deny that even if there is a preference for domestic proceedings and a commitment by affected states to do something in the long-term, these conflicts require immediate action that the effected states cannot carry out in the short-term.

Several metrics can be used to measure the capacity of states to resolve these matters themselves, including their judicial capacity, their openness and transparency, the level of government intervention and authoritarianism, and in general the level of civil and political rights in each. The most useful of these is probably the Failed State Index, which measures a number of these factors and also aggregates them into a single ranking.35 It is also worthwhile to look at the Corruptions Perceptions Index,36 the Freedom in the World Index,37 the Worldwide Governance Indicators38 and the Press Freedom Index.39 These indexes do not, of course, tell a complete story of the capacity of states to conduct trials, but taken together they paint a general picture of the status of civil and political rights in each state, and therefore may serve as a proxy for their capacity to handle these cases.

The general picture is clear enough: the states in which the OTP is intervening, with the exception South Korea, score very poorly on these indexes and presumably lack the capacity to investigate and prosecute these cases on their own. Indeed, according to the Failed State Index, six of the Index’s 20 most “critical” countries are under investigation, namely the CAR, Côte d’Ivoire, the DRC, Kenya, Sudan and Uganda. The other two states, Mali and Libya, score higher, but Mali nearly collapsed in 2012 (presumably before the data was collected) and Libya was its “most worsened” state in the rankings.

Below is an overview of the states under investigation and their position on the above mentioned indexes:

  • Central African Republic
    • Failed State Index (higher rank=more stable): 10 “critical”
    • Press Freedom Index (higher rank=fewer freedoms): 65
    • Corruption Perception Index (higher rank=more corruption): 144
    • Freedom in the World Index (general ranking from 1-7): 5 “partly free”
    • Worldwide Governance Indicator on Rule of Law (percentile rank, higher better): 7.0 %
  • Côte d’Ivoire
    • Failed State Index: 11 “critical”
    • Press Freedom Index: 96
    • Corruption Perception Index: 130
    • Freedom in the World Index: 5 “partly free”
    • Worldwide Governance Indicator on Rule of Law: 8.0 %
  • Democratic Republic of the Congo
    • Failed State Index: 2 “critical”
    • Press Freedom Index: 142
    • Corruption Perception Index: 160
    • Freedom in the World Index: 6 “not free”
    • Worldwide Governance Indicator on Rule of Law: 1.9 %
  • Kenya
    • Failed State Index: 16 “critical”
    • Press Freedom Index: 71
    • Corruption Perception Index: 139
    • Freedom in the World Index: 4 “partly free”
    • Worldwide Governance Indicator on Rule of Law: 16.4 %
  • Libya
    • Failed State Index: 50 “critical” “most-worsened state of 2012”
    • Press Freedom Index: 131
    • Corruption Perception Index: 160
    • Freedom in the World Index: 4.5 “partly free”
    • Worldwide Governance Indicator on Rule of Law: 12.2 %
  • Mali
    • Failed State Index: 79 “In danger”
    • Press Freedom Index: 99
    • Corruption Perception Index: 105
    • Freedom in the World Index: 6 “not free”
    • Worldwide Governance Indicator on Rule of Law: 35.7 %
  • Sudan
    • Failed State Index: 3 “critical”
    • Press Freedom Index: 170
    • Corruption Perception Index: 173
    • Freedom in the World Index: 7 “not free”
    • Worldwide Governance Indicator on Rule of Law: 8.5 %
  • Uganda
    • Failed State Index: 20 “critical”
    • Press Freedom Index: 104
    • Corruption Perception Index: 130
    • Freedom in the World Index: 4 “partly free”
    • Worldwide Governance Indicator on Rule of Law: 43.2 %

While this data does not definitively preclude these states from addressing these issues themselves, it indicates that there would very likely face serious difficulties conducting trials on their own that satisfy the international fair trial standards.40 It seems obvious that states with existential threats to their basic functions will have difficulty conducting trials to international standards. Clearly some of these countries have vibrant civil societies and strong traditions of good lawyering, which may mitigate the inference of incapacity, these states display serious problems and seemingly lack judicial capacity.

The focus on Africa raises another question, however, namely why non-African states have not been investigated. There are several jurisdictional questions that arise in this context that limit the prosecutor’s ability to act as decisively and universally as he or she might want. In particular, it is necessary to look at the means by which the ICC gains jurisdiction over a case. First, a state may refer a matter to the court of its own volition. Second, the Security Counsel can refer the case. Third, the prosecutor can initiate an investigation proprio motu for violations in the territory of a state party. At present 122 states have ratified the Rome Statute, meaning that just under two-thirds of the world’s states are within the jurisdiction of the court.41 African countries, as is well known, were among the earliest supporters of the ICC,42 and at present 33 African states have ratified the treaty, more than a quarter of the total.43 By way of contrast, 27 are from Latin America and the Caribbean, 25 are from Western Europe / Western States (including Australia, Canada and New Zealand), 18 are from Asia-Pacific States, and 18 from Eastern Europe.44

Given the incidence of conflict globally and the jurisdictional limits imposed by the Rome Statute, the options for the OTP outside of Africa are limited. Of the obvious cases in recent years, most notably Sri Lanka, a non state party, few fall within the clear-cut jurisdiction of the court. The prosecutor cannot simply initiate investigations in countries that have not ratified or acceded to the Rome Statute without a state or Security Council referral, irrespective of the objective merits of the case. It is also worth noting that the OTP is in fact conducting preliminary examinations in non-African conflicts, including in Afghanistan, Colombia, Georgia, Honduras and South Korea (Guinea and Nigeria are also under preliminary examination, the former to monitor its domestic proceedings under the complementarity principle). Several of these non-African situations should become formal investigations, and should reasonably result in indictments, notwithstanding the political issues apparent in several. But perhaps the most glaring problem is the lack of action over the extensive rendition network that was built by the United States and its allies. A recent study by the Open Societies Institute uncovered a massive network engaged in the disappearance and torture of individuals, implicating 53 states, of which 31 are states parties to the Rome Statute.45 The failure to pursue this very public issue is a problem, and addressing it in some capacity would placate concerns among the Court’s critics. However, these critics must also realize that doing so carries with it its own risks, as many of these states hold significant power in the international system and could significantly undercut the capacity of the court to operate anywhere. There are realpolitik issues implicit in the prosecutor’s work, and while we should object to them it is not as if they are minor impediments to universal justice or that they do not seriously constrain the capacity of the prosecutor to act.

It is beyond question that a criminal tribunal with global scope should not restrict itself to just one continent. All the same, this does not mean that conflicts in Africa are any less deserving of international justice than they are now, and by extension that investigations and prosecutions in Africa should be curtailed until there is a truly global sampling of cases. The question should rather be one of generating effective means of expanding the scope of the ICC. Certainly given the geography of conflict, new cases in Africa should not be avoided.46

Finally, there is an important political and practical aspect to this issue. Any serious analysis must ask what else could or should have been done by Moreno-Ocampo over the last ten years. No serious claim has been made that the situations under investigation by the ICC are not within the subject matter jurisdiction of the Court, or that they do not require attention of some sort. Moreover, they have played an essential role in facilitating the Court’s development and allowed it to move foreward. It is worth noting that the ICTY and ICTR started off with comparatively simple cases before moving on to more complex ones. The ICTY issued its first indictment against Dragan Nikolić on November 7, 1994, and the following day requested that Germany surrender Duško Tadić, the latter of whom would be the first individual to go on trial in 1996.47 Neither was a high-ranking official, and the two are more notable for being the first individuals indicted by the tribunal than the gravity of their crimes.48 At the ICTR the first case was against Jean-Paul Akayesu, who was found responsible for ordering and inciting violence that resulted in the deaths of 2,000 Tutsi. Akayesu was not originally a prime suspect for the ICTR’s prosecution, but was quickly indicted and prosecuted after he was apprehended in order to begin prosecutions.49

The analog at the ICC to these was the trial of Thomas Lubanga, who was charged with only a small number of crimes compared with what the evidence supported. His charges were clearly limited in order to facilitate the expeditious conclusion of the trial and serve as a test case for future prosecutions of more serious issues. Lubanga was certainly not the most significant indictee of the tribunal,50 but given his availability and the necessity of beginning the work of the ICC, his prosecution served as an invaluable first step. The Lubanga prosecution was clearly a case of opportunism on the part of Moreno-Ocampo, and rightly so: he deserved to be prosecuted and the ICC had to start prosecuting. As the old saying goes, a journey of a thousand miles begins with a single step.

Notwithstanding the appropriateness of the prosecution of Lubanga and the OTP’s existing focus on conflicts in Africa, the question remains what next? Clearly the ICC has established itself and found a working rhythm. The issue now is how to quicken its pace and expand its scope. As identified above, there are a number of situations that deserve the attention of the ICC. Hopefully under the direction of Fatou Bensouda, the new ICC prosecutor since June 2012, the court will take a more assertive position vis-à-vis conflicts around the globe and act assertively in the pursuit of its mandate. To do so, she needs to be strengthened with political, NGO and academic support, and pressured to be more assertive in investigating situations around the globe while not backtracking on Africa.

After eleven years of existence the ICC is well placed to move ahead, having worked out many of its practical and procedural kinks, developed internal policies and established a case law upon which to build. The ultimate point, then, is not that the ICC needs to stop investigating and prosecuting crimes in Africa, but that it needs to also investigate and prosecute crimes elsewhere. It is clear that international crimes are prevalent and unlikely to be ended in the foreseeable future and that the ICC is a needed institution. Yet the ICC has not received the needed support from the Security Council, which has yet to back-up its referrals to the Court with further action or provide financial support for the cases it has refereed. The ICC’s operations have also been hampered by the UN system and its rules and procedures that hamper the Court’s effectiveness and cost-efficiency. Finally, state cooperation has been limited and at times obstructionist.51 Complementary has yet to work if for no other reason than that states have yet to adopt the necessary legislation or develop the capacity to take on cases themselves.52

As to the future of the ICC, what can we predict? If allowed to operate and grow, it is likely that it will have an impact like many of the courts that have preceded it. Consider, for example, the European Court of Human Rights.53 When it was established in 1954 there were questions as to whether European state would accept its decisions, and what impact the court would have on human rights compliance. Only a few years later no one could seriously ask such questions. The credibility, respectability and gravitas of the Court commanded the respect and observance of all European states.

A similar analog can be found in the history of the U.S. Supreme Court. Without delving into the merits and legitimacy of judicial review prior to Marbury v. Madison, it is clear that the practice has evolved from shaky beginnings to the point where the judiciary’s authority “to say what the law is” goes without question. Similarly, after the Supreme Court’s 1832 decision in Worcester v. Georgia an outraged President Andrew Jackson is reported to have said “John Marshall has made his decision; now let him enforce it!” That sentiment is unimaginable today. Just as the legal authority of the Court is unquestionable today, so too is its prescriptive authority. The idea of a contemporary Orval Faubus calling out the National Guard to resist a Court order seems almost absurd.54 Hopefully, the same will be said in the not-to-distant future for the ICC.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Staff professionalism, sound management, available resources, political support among state parties, and international credibility are all factors that bear upon the institution’s public perception. What is also required is the existence of internal correction mechanisms to ensure an institution’s proper functioning, including management and ethical control mechanisms, as well as transparency.

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], art. 1. The Rome Statute, which was opened for signature on 17 July 1998. Id. at art. 125. Ten states signed the Statute on 17 July 1998, namely Bolivia, Bosnia and Herzegovina, Congo, Liberia, Mali, Malta, Niger, Samoa, South Africa, and Zambia. An additional 15 states ratified the Statute on 18 July. By the terms of the Statute it entered into force six days after the deposit of the 60th instrument of ratification. Id. at art. 126. Senegal was the first state to ratify the Rome Statute on 2 February 1999, and ten countries—Democratic Republic of the Congo, Niger, Jordan, Mongolia, Cambodia, Bosnia and Herzegovina, Slovakia, Bulgaria, Romania, and Ireland—submitted their ratifications jointly on 11 April 2002 to overcome the 60 state threshold. See States Parties—Chronological list, International Criminal Court, available online.

    For a comprehensive overview of the Rome Statute and its provisions, see M. Cherif Bassiouni, 1-3 The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text (2005).

  3. 3.

    While the ICC came into existence in July 2002, the judges were elected in February 2003 and empanelled in March, the prosecutor was elected in April and sworn in in June, and the registrar, who within the framework of the Rome Statute and the Rules of Procedure and Evidence, is responsible for the administration of the Court including the supervision of the Office of Public Counsel for the Defense and the Office of Public Counsel for Victims, was not elected until June 2003.

  4. 4.

    In 2011, his last full year as prosecutor, the OTP had a budget of €26.598 million and a staff of 218. See Programme budget for 2011, the Working Capital Fund for 2011, scale of assessments for the apportionment of expenses of the International Criminal Court, financing appropriations for 2011 and the Contingency Fund, Res. ICC-ASP/9/Res.4 (Dec. 10, 2010), available online.

  5. 5.

    These challenges ranged from satisfying the high expectations of NGOs and some state parties, to the logistical, practical, and management problems presented by a UN system that is not well suited for such an institution.

  6. 6.

    Assembly of State Parties, Programme Budget for 2013, ¶ 27, Doc. ICC-ASP/11/20 (Nov. 21, 2012). The appropriated staff level of the ICC for 2013 is 766, in addition to its 18 judges in the pre-Trial, Trial, and Appeals Divisions. Of the staff, 48 are within the judicial chambers, 217 in the Office of the Prosecutor, 480 in the Registry (which includes the court’s administrative staff, the Office of Public Counsel for the Defence, Office of Public Counsel for Victims, clerks, etc.), 9 in the Secretariat of the Assembly of States Parties, 7 in the Secretariat of the Trust Fund for Victims, 3 in the Project Director’s Office (which is tasked with overseeing the development of the court’s permanent premises), and 2 in the Independent Oversight Mechanism.

  7. 7.

    Id. at ¶ 1. Over the 12 years since it came into being, the ICC has been allocated approximately €942.8 million (or approximately $1.27 billion). The annual budgets have been: 2002-03: €30,893,500; 2004: €53,071,846; 2005: €66,784,200; 2006: €80,417,200; 2007: €88,871,800; 2008: €90,382,100; 2009: €101,229,900; 2010: €103,623,300; 2011: €103,607,900; 2012: €108,800,000; 2013: €115,120,300. The total is €942,802,046, which equals $1,227,666,506.59. Exchange calculated by XE.com on Mar. 7, 2013.

  8. 8.

    There is no clear distinction between an investigation and a preliminary examination in the Rome Statute, and the OTP uses the terms interchangeably: when announcing a probe into a particular situation the office uses “investigation” but its annual reports and website refer to them as “preliminary examinations”. The statute is also unclear: article 15(1) refers to “investigations”, but in article 15(6) the treaty refers to the procedure in 15(1) as a “preliminary examination”. Article 15(3) indicates that if certain basic pre-conditions have been met the Prosecutor must submit a request for an investigation to the Pre-Trial Chamber (PTC), a process that is detailed in Part V of the Rome Statute. This article uses “preliminary examinations” to refer to any investigation prior to seeking formal approval from the PTC, which appears to be the practice of the OTP. Investigations are those that have received PTC approval.

  9. 9.

    Uganda, Sudan (Darfur), Democratic Republic of the Congo, Central African Republic, Kenya, Libya, Côte d’Ivoire, and Mali.

  10. 10.

    Afghanistan, Colombia, Georgia, Guinea, Honduras, Republic of Korea, and Nigeria. The OTP employs a four-stage process for conducting preliminary examinations before proceeding to full investigations. The first phase entails the basic evaluation of territorial jurisdiction, which is customarily in response to complaints submitted by individuals and organizations. The second phase determines whether a situation satisfies the jurisdictional requirements of Article 12 of the Rome Statute (i.e. territorial and active personality jurisdiction), and to establish whether there is a “reasonable basis to believe that the alleged crimes fall under the subject matter jurisdiction of the Court”. The third phase assess the gravity of the crimes for complementarity, in other words whether a state is willing and able to investigate and potentially prosecute the crimes in question on its own. Finally, the fourth phase assesses whether the “interests of justice” are satisfied by proceeding with the investigation. See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2012, ¶ 16 (Nov. 22, 2012), available online.

  11. 11.

    Iraq, Palestine, and Venezuela.

  12. 12.

    The situation in Mali has not yet resulted in individual indictments.

  13. 13.

    The exact amount equals €27,589,391.

  14. 14.

    These numbers exclude perjury trials.

  15. 15.

    The International Criminal Tribunal for the former Yugoslavia has cost approximately $11.2 million per indictment and the International Criminal Tribunal for Rwanda approximately $18.5 million into 2012. For more information, see M. Cherif Bassiouni, Introduction to International Criminal Law: Second Revised Edition 1058-75 (2d ed., 2013).

  16. 16.

    Rome Statute, supra note 2, at preamble.

  17. 17.

    Scott Stearns, African Union Says ICC Prosecutions Are Discriminatory, Voice of America, Jul. 4, 2011, available online.

  18. 18.

    Andrew North, Libya: Gaddafi ICC arrest warrant raises questions, BBC News, May 17, 2011, available online.

  19. 19.

    African ICC Members Mull Withdrawal Over Bashir Indictment, Voice of America, Nov. 2, 2009, available online (emphasis added). The Rwandan Prime Minister Bernard Makuza similarly expressed the opinion that African heads of state did not feel that they had been fairly treated by the ICC, further arguing that “We’re not promoting impunity, but we’re saying that Westerners who don’t understand anything about Africa should stop trying to import their solutions.” Alfred de Montesquieu, African leaders denounce international court, Associated Press, Jul. 3, 2009, available online.

  20. 20.

    Stearns, supra note 17.

  21. 21.

    Farouk Chothia, Africa’s Fatou Bensouda is new ICC chief prosecutor, BBC, Dec. 12, 2011, available online. In some cases there has been the suggestion that the ICC is inappropriate for African conflicts and unable to address these problems in a helpful manner. For instance, Prime Minister Makuza argued that in objecting to the court, African heads of state were “not promoting impunity, but…saying that Westerners who don’t understand anything about Africa should stop trying to import their solutions.” Id.

  22. 22.

    Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-T, Transcript Mar. 9, 2011, at 49388, available online.

  23. 23.

    Courtenay Griffiths, The International Criminal Court is hurting Africa, The Telegraph, Jul. 3, 2012, available online.

  24. 24.

    de Montesquieu, supra note 19. See also African nations unite to defend Sudanese leader, Associated Press, Jul. 4, 2009, available online.

  25. 25.

    Stearns, supra note 17.

  26. 26.

    Id.

  27. 27.

    This practice of course raises other salient questions of the Court’s unwitting complicity in internal political disputes.

  28. 28.

    Rome Statute, supra note 2, at art. 1.

  29. 29.

    Id., at art. 17(1). The complementarity provision of the Rome Statute distinguishes it from the ICTY and ICTR, which operated on the principle of primacy, which gave those tribunals absolute authority to exercise jurisdiction over the wishes of domestic courts and tribunals.

  30. 30.

    Id., at preamble.

  31. 31.

    It should be noted that complementarity is based on the presumption that states will develop their domestic capacity in order to assume the functions of the ICC, and investigate and prosecute individuals fairly and expeditiously. In order to assume jurisdiction from the ICC, two fundamental components must be satisfied. First, states must develop their laws in order to gain subject matter jurisdiction over crimes contained in the Rome Statute. Second, states must develop the human, physical, and technological infrastructure needed to prosecute individuals. This requires, inter alia, training judges, prosecutors, defense attorneys, and investigators in international criminal law and fair trial procedures, investing in the technologies needed to collect and examine evidence, and developing the infrastructure and capacity to hold trials in ways that protect the rights of the accused, victims, and witnesses.

    It should also be noted, in the context of complementarity, that one of the great innovations of the Rome Statute is the inclusion of victims in the process, including rights of audience from the earliest stages of proceedings. It is unclear, as yet, how such victim participation can be reconciled with complementarity, as many domestic jurisdictions, and particularly common law jurisdictions, do not provide for any victim participation at all, much less rights of audience. (A parallel problem is the OTP’s interests vis-à-vis those of victims, as they do not always overlap and may in certain circumstances clash.)

  32. 32.

    Admittedly, the Sudan has objected to the indictment of al-Bashir and others, but it has not challenged the admissibility of the case. Unlike Libya the Sudan has not expressed any willingness to conduct any domestic investigations or prosecutions at all, and therefore the case is not subject to complementarity.

  33. 33.

    See supra note 31.

  34. 34.

    There are clearly serious questions arising out of the conduct of western forces in Iraq, Afghanistan, Pakistan, and Yemen, or the extensive network of states to disappear and torture individuals, most of which have the capacity to do something about the problem, as discussed below.

  35. 35.

    Failed State Index, The Fund for Peace, available online.

  36. 36.

    2012 Corruptions Perceptions Index, Transparency International, available online.

  37. 37.

    See generally 2013 Freedom in the World, Freedom House, available online.

  38. 38.

    Worldwide Governance Indicator, World Bank, available online.

  39. 39.

    Press Freedom Index 2013, Reporters Without Borders, available online.

  40. 40.

    To be fair, the ICTR has referred a number of cases to Rwanda over the last 18 months, most notably the case of Jean Uwinkindi. Rwanda itself does not receive universally high marks on these indicators but has been deemed sufficient for the purposes of the ICTR. Similarly, Guinea is under preliminary examination by the court to monitor its own investigations and prosecutions of individuals implicated in the death of protestors in 2009, but has been determined to be investigating these matters seriously and has therefore been left to its own processes. Nonetheless, there are serious questions about the capacity of these states to address these matters fully at present, which should raise alarm bells within the international community not simply over the ICC’s jurisdiction, but more fundamentally over the stability of these states and the general assistance they need to make sure that ordinary crimes are dealt with freely and fairly on an everyday basis.

  41. 41.

    139 states have signed the Rome Statute.

  42. 42.

    States Parties—Chronological list, International Criminal Court, (Jul. 13, 2012), available online.

  43. 43.

    African States, International Criminal Court, available online.

  44. 44.

    These categories have been established by the ICC itself.

  45. 45.

    These states include Afghanistan, Albania, Australia, Austria, Belgium, Bosnia and Herzegovina, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Finland, Gambia, Georgia, Germany, Greece, Iceland, Ireland, Italy, Jordan, Kenya, Lithuania, Malawi, Poland, Portugal, Romania, South Africa, Spain, Sweden, and the United Kingdom. Open Society Justice Initiative, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition (2013), available online.

  46. 46.

    The ongoing conflict in Mali is a good example.

  47. 47.

    The crimes of Tadić and his location had been identified by the UN’s Commission of Inquiry, of which one of us (Bassiouni) was the Chairman.

  48. 48.

    Later in 1996 Dražen Erdemović, who was accused of participating in the killing of upwards of 1,000 Bosniaks, was the first to be sentenced by the trial chamber after pleading guilty.

  49. 49.

    The Akayesu case did develop a number of significant areas of law, including the nature of rape in genocide. Jean Kambanda, the Rwandan Prime Minister during the genocide, was the first to plead guilty in 1998.

  50. 50.

    The most significant indictees of the tribunal are likely al-Bashir or Joseph Kony.

  51. 51.

    One of the most problematic examples of this are the so called article 98 agreements between the United States and various countries to block cooperation between those states and the ICC.

  52. 52.

    See supra note 31.

  53. 53.

    The European Commission preceded the Court, which first came into existence in 1959 and was fully put in place in 1998. The two are considered together here as a single institution. The Court and Commission are the products of the European Convention on Human Rights, which was adopted in 1950.

  54. 54.

    See John Kirk, Beyond Little Rock: The Origins and Legacies of the Central High Crisis (2007); Tony Freyer, Politics and Law in the Little Rock Crisis, 1954-1957, 66 Arkansas Historical Quarterly 145 (2007), JSTOR paywall..

Clarke Avatar Image Kamari Maxine Clarke, Ph.D. Professor Yale University

Is the ICC targeting Africa inappropriately or are there sound reasons and justifications for why all of the situations currently under investigation or prosecution happen to be in Africa?

African submission to ICC jurisdiction exists within political and “structural” inequalities in the global arena, meaning that the ICC’s involvement in Africa is not simply a question of the ICC’s targeting of Africa.

Summary

While this is a critical issue to investigate, to address it fully I propose we reframe the question. Instead of asking whether Africa’s targeting is unfair or justified, we need to ask Why Africa? in the first place. To answer this question I want to bypass the assumption that the ICC is “targeting Africa” and instead examine the structural inequalities that have made it so that Africa and not the United States, Joseph Kony and not George Bush, crimes against humanity and not pre-emptive intervention form the basis for the court’s action.

To date, 122 countries have signed and ratified the ICC’s Rome Statute. The United States, China, Japan, India, Pakistan, Israel, and Turkey have not ratified it and thus are not under the jurisdiction of the court. Of the 122 countries that have signed the Rome Statute, close to one third comprise African states, and because of the current violence in some of Africa’s key high-resource areas, the ICC is more likely to scrutinize Africa. By asking questions that push us to make sense of why African countries have submitted to the jurisdiction of the court, we can make sense of why Africans and African-based cases are the only ones being tried.

African submission to ICC jurisdiction exists within political and “structural” inequalities in the global arena, meaning that the ICC’s involvement in Africa is not simply a question of the ICC’s targeting of Africa. Nor is it a matter of whether African states themselves participated in referring particular cases. Rather, it has to do with which crimes can be pursued, which agents can be held responsible, whether Africa’s violence can be managed by African countries, and whether the crimes of the Rome Statute are sufficient to address the root causes of violence in Africa’s political landscape.

Argument

Africa has suffered ten civil wars in the past twenty years alone. These conflicts, primarily over resources, have contributed to untold numbers of deaths, rapes, and destruction leading to the militarization of everyday life. This violence is traceable to the legacies of colonialism and the way that post-independence states attempted to control their capital cities and rural regions—with little success—through military coups and the autocratic suppression of opposition movements. The struggle to control government has always involved a struggle to control extractive resources. These dynamics hampered the development of state institutions and created a highly centralized federal body.

Over the past thirty years, as African states were increasingly incorporated into the international economy, these poorly functioning state institutions have been negotiating the terms of extraction and compensation with former colonial powers, international organizations helping to facilitate transitional governments, and corporations hoping to keep the extraction agreements they had negotiated already with former military governments. But these extractive activities unfolded in contexts in which armies and the police are underpaid, educational and health institutions are dismally underfunded, and courts and electoral politics are driven by economic opportunism. The result: cycles of underdevelopment in which the poor get poorer and the way to make a profit is through extractive industries such as oil, mining, or plantation agriculture, which often involve violent and exploitative labor conditions.

Given this context, it is not surprising that the race for political control in Africa has led to the unfolding of electoral violence, and, in some cases, the development of rebel groups vying for political influence and the control of various extraction industries. The recent histories of the Democratic Republic of the Congo, Somalia, Liberia, Nigeria, Uganda, Sierra Leone, and Congo-Brazzaville all fit this trajectory; each has various international companies, rebel groups, and governments deeply embattled in controlling resource extraction in African landscapes. This geography is part of a larger set of global interconnections in which violence, war, arms, and mineral resource extraction are all part of the same cycle. With increasing struggles over the management of violence in Africa, the industry of militarization has grown in various sub-Saharan African states, leading to over ten civil wars over the past twenty years. The impact of such violence has produced the death and homelessness of hundreds of millions of people.

The making of law is a political process and the negotiations that went into the creation of the Rome Statute eventually adopted by 120 states in 1998 were deeply shaped by international power relations. Yet, ignoring the highly political processes of selecting and vetting the crimes under the subject matter jurisdiction of the Rome Statute has led to a misrepresentation of the highly political fields in which the history of African violence is embedded. If we look at how the four crimes currently under the subject matter jurisdiction of the ICC came to occupy the basis upon which offenses were committed and cases were selected, we can see that these were politically motivated and chosen based on the various interests of the state parties involved in choosing them. But in many of the African post-war regions with decimated judiciaries and infrastructures, the political crimes of the Rome Statute are really not able to address the root causes of economic plunder that are key to the emergence of violence in the first place.

In 1981, the International Law Commission (ILC) resumed its work on the draft “Code of Offences against the Peace and Security of Mankind” (hereafter, Code), at the request of the United Nations (UN) General Assembly. By 1989, representatives from Trinidad and Tobago requested that the ILC resume the process of establishing an international criminal court to deal with major drug-trafficking and arms control issues in the Caribbean and Latin America, which also had grave significance in Africa. At the forty-third session of the ILC in 1991, the commission adopted a draft Code, which defined the following crimes: aggression; threat of aggression; intervention; colonial domination and other forms of alien domination; genocide; apartheid; systematic or mass violations of human rights; exceptionally serious war crimes; recruitment, use, financing, and training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and willful and severe damage to the environment.

The ILC used government reports in the drafting process to create the comprehensive Draft Statute for an International Court. In 1994, it presented a draft for the establishment of the ICC to the UN General Assembly, which convened the Preparatory Committee to advance the process to the next level. In 1995, the Special Rapporteur omitted six of the twelve crimes in the subsequent draft created at the forty-seventh session. The omitted crimes included colonial domination and other forms of alien domination; apartheid; recruitment, use, financing, and training of mercenaries; willful and severe damage to the environment; international terrorism; and illicit traffic in narcotic drugs. The Preparatory Committee met six times over the course of two years (1996-1998), during which time it gathered feedback from national delegates, government reports, NGOs, and intergovernmental organizations.

Over the next few decades, the ICC became the first permanent international body empowered to adjudicate individuals for four categories of offenses: war crimes; the crime of genocide; crimes against humanity; and, most recently, the crime of aggression. However, the process of creating the ICC passed through several phases of negotiation and refinement to the exclusion of the crimes seen as central to the problem of violence in the Global South including the use, financing, and training of mercenaries, illicit traffic in narcotic drugs; and willful and severe damage to the environment.

The Special Rapporteur presented several justifications for the omission in a topical summary report to the UN General Assembly. If the court were to gain universal acceptance among nations, it would have to avoid crimes that were too controversial or widespread. A number of delegations expressed support for the Special Rapporteur’s recommendation to limit the list of crimes against the peace and security of humanity to those that were difficult to challenge—namely, acts that were so egregious, they would unquestionably fall into the category. In support, many expressed the view that the commission needed to strike a balance between legal idealism and political realism, and the Special Rapporteur’s approach was commended as appropriately leaning toward the latter (political realism), as likely to facilitate the work of the committee and as justified given the lack of consensus on certain crimes in the draft Code especially the traffic in narcotic drugs, terrorism, and the willful and severe damage to the environment.

They insisted that the aim of the Code was to make possible the prosecution and punishment of individuals who had perpetrated crimes of such gravity that they victimized humankind as a whole. Thus, it seemed sound to reduce the list to a “hard core” of crimes, making it easier for the draft Code to operate in the future. As they indicated that this restrictive approach would avoid devaluing the concept of crimes against the peace and security of mankind, that crimes incapable of precise definition or which had political rather than legal implications should be left out. Ultimately, many of the Northern countries argued that including them would impede the preparation of a generally acceptable instrument. But what we can surmise that they were actually saying was that states were not willing to submit themselves to the broader range of crimes for which they may risk possible indictments of their own leaders.

Opponents of the omissions (mostly various states from the South) were dissatisfied with the outcome of the debate and suggested it should continue at greater length. They argued that these crimes “constituted serious offences against the human conscience and threats to the peace and security of mankind”; therefore, “there was no justification for excluding from the draft Code serious crimes such as: intervention, colonialism, apartheid, mercenarism and international terrorism.” Later debates regarding terrorism and drug trafficking occurred during the Preparatory Committees. For example, India and the Russian Federation proposed the inclusion of acts of international terrorism based on the widespread and vast destruction that result in serious cases. Representatives from Austria, Sweden, Malaysia, the Republic of Korea, the Netherlands, and the United States argued that treaty-based crimes, such as terrorism, should be adjudicated at the national level.

After decades of debate, the crimes of the Rome Statute were reduced from the twelve previously defined in the 1991 draft to four classified as the “most serious” to peace and security. Those involved mass death and widespread killing of such gravity that they were seen as threats to the international community. The revisions resulted in the Rome Statute of the ICC, and in 1998 they were presented and adopted in the Rome Conference. Between 1999 and 2002, the UN Preparatory Commissions met ten times to review and refine the Rome Statute and to develop its Rules of Procedure and Evidence, as well as the Elements of Crimes.

The Statute came into force in July 2002, and in the end, the crimes that came to occupy the moral and legal concerns of the Court were those that involved explicit forms of mass violence—akin to the forms of violence being perpetrated in sub-Saharan Africa and Latin America at the time. In Africa, the vast majority of that violence occurred in struggles over resource—oil, diamonds, and coltan. And today, with the end of both European colonialism and the Cold War and at the height of neoliberal capitalism, a new scramble for Africa has begun in which local, national, regional, and international interests are competing for regulatory control of Africa’s vast mineral resources. By asking Why Africa? It’s important to reflect on how particular historical conditions such as the political vacuum created in African countries after the collapse of the Soviet Union affected these states and has contributed to the conditions for violence in the Middle East and in West, Central, and East Africa.

From the mining of various key resources in Africa that are in demand in the West to the illegal dumping of waste along Africa’s coasts each year, these activities are not unrelated to our markets in the Global North. And the involvement of a range of competitors for these resources fuels the regional conflicts often perceived outside of Africa as endemic to the region. However, the reality is that these conflicts provoke other illegal activities, including the sale of arms to rebel groups.

Considering these realities, the responsibility of contemporary violence goes well beyond that of an individual commander and cannot be addressed through a strategy that limits its practice to law alone. In fact, assigning criminal responsibility to a few representative persons—commanders, heads of state, leaders of rebel groups—obscures the link between Africa’s resource crises and contemporary violence. This is especially the case in states that don’t have the capacity to hold reliable secondary and tertiary trials with lower ranking perpetrators of violence. Despite this, it is the individualization of criminal responsibility, and the political process behind it, that frames the ICC’s prosecution of African leaders.

As Article 25, Section 2 of the Rome Statute indicates, “a person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.” Section 3(a) stipulates that this is the case, “whether [committed] as an individual, jointly with another or through another person.” In articulating the commission of crime through another person, the writers were especially concerned with addressing those who are responsible for ordering, soliciting, or inducing a crime that occurs or is attempted (Art. 25 (3)(b)). Also included is a person who “[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission” (Art. 25 (3)(c)). Military commanders are then specifically included, with provisions, in Article 28.

These articles of the Rome Statute, and how they came to be, are critical to answering the question of Why Africa? What we see is that the processes of reassigning criminal responsibility in political terms, without looking at the economic fields within which violence has festered, has led to the focus on high-ranking leaders and their roles in aiding and abetting, or not preventing, violence. Yet, despite this reality, African States continued to submit themselves to the jurisdiction of the ICC for reasons that go well beyond instrumental motivations, while various northern states both refused the expansion of the crimes and refused to submit to the jurisdiction of the court. Given this, we might ask why any state would subject itself to the international management of crime? In answering this question for Africa, it is important to consider the African states’ psychological-moral as well as external political influences for participating in the International Criminal Court regime.

The psychological-moral context begins with understanding what happened before and after the Rwandan genocide, in which leaders of many African states agreed, “never again will such atrocities happen.” And the external political influences begin shortly after African independence movements in the 1960s and 70s in which African economies became deeply enmeshed in debt-ridden obligations and dependence on International Monetary lending. In Rwanda, the fall out from the former Soviet Union led to the post-1989 circulation of large stockpiles of M16s in key sites of violence. The machetes used to kill were imported from Belgium. And the ethnic contests between the Hutus and Tutsis were fueled by colonial France’s solidification of ethnic categories by rendering one group more privileged than the other (Mamdani, 2002). The realities of both the endemic and external contributions to that crisis led to a realization of the magnitude of the past in shaping contemporary violence and the realization that credible judiciary mechanisms had been decimated. Thus, both the pragmatic and moral commitment to prevent genocide led to the search for new and effective solutions for dealing with such heinous crimes with the result of African states actively supporting the development of the ICC.

And there is yet another reality that contributed to the perceived zealousness of African participation in ICC jurisdiction: the expressive will to demonstrate a commitment to international membership through the signing of successive treaties. By the end of the Cold War, the shift to democratization and rule of law took shape alongside discourses related to international membership, good governance, and accountability. The related political questions that shaped African participation are connected to how shortly following African independence movements in the 1960s and 1970s, African economies became deeply enmeshed in debt-ridden obligations and dependence on International monetary lending and raw material exports. And by the end of the Cold War as new economic liberalization agreements were signed, the impact of international competition on local economies became increasingly difficult. But this restructuring took place alongside expectations of democratization and adherence to new internationalisms in which discourses related to the rule of law, good governance, and membership to a world system constituted what was described as “the new world order.” In relation to this reordering, new index metrics for measuring the viability of state democracies developed. The signing of international treaties provided relevant index increases for measuring state commitments to good governance and compliance.

These measures are not inconsequential. These measures contributed to the boosting of indexes by which trade, measures for economic viability, and the renewal of IMF loans provided the basis for state support and economic viability. Signing the Rome Statute and related African participation in ICC treaty membership provided the terms for concretizing African commitment to good governance.

These two points—the neoliberal underpinnings that provided incentives for participation and the moral pragmatics that drove the search for solutions through the aspiration for an international body with the power to deter future violence—has emerged calls on us to expand the way we think about law through the expansion of the way we understand the “space of the political.” For when law is delinked from the conditions of its making and the relations in which it is embedded, it has the potential of misrepresenting key issues as simply about personal agency (i.e. the ICC targeting Africa) and not allowing us to understand the complexities of history that bring certain conditions into question.

The question of this forum is related because it asks us to consider whether the ICC is targeting Africa inappropriately or are there sound reasons and justifications for why all of the situations currently under investigation or prosecution happen to be in Africa? In answering the question through a revised interrogation into Why Africa?, we need to consider the processes that led to the conditions that have put African countries—exclusively—under the scrutiny of the ICC. The more useful analytic direction then becomes what directions are not being pursued as a result of the current subject matter jurisdiction of the Rome Statute?

deGuzman Avatar Image Margaret M. deGuzman Associate Professor Temple University Beasley School of Law

Is the ICC Targeting Africa Inappropriately?

The ICC has invoked its own jurisdiction in only one situation. The other situations have all come to the Court through referrals from the States concerned and the Security Council. Moreover, the ICC has declined to investigate only two situations outside of Africa. This small number of decisions provides an insufficient basis to conclude that the ICC is discriminating in its selection practices. Moreover, the ICC has credibly asserted that its decisions have been based on the gravity of the situations.

Summary

In its first ten years, the ICC’s investigations and prosecutions have all concerned situations in Africa. The Court has issued arrest warrants for two African heads of state, and has opposed efforts by African governments to avoid ICC involvement in several situations. Moreover, the Court has declined to investigate crimes allegedly committed in Venezuela and by British soldiers in Iraq. These actions among others have led to charges, particularly among African political leaders, that the ICC is targeting Africa inappropriately.

To assess the validity of such charges, it is necessary to deconstruct the term “inappropriate.” Following Richard Fallon’s useful tripartite understanding of the term “legitimacy,”1 I will consider the appropriateness of the ICC’s focus on Africa along three interrelated dimensions: moral, legal and sociological. I will argue that the ICC’s focus on Africa is neither legally nor morally inappropriate but nonetheless threatens to undermine perceptions of the Court’s fairness.

Critics of the ICC’s actions in Africa assert claims based in morality, legality, and sociological legitimacy (understood as perceptions of fairness). First, critics accuse the ICC of acting immorally by discriminating against Africa and Africans in deciding which situations to investigate and prosecute. The evidentiary basis for such claims is weak. The ICC has invoked its own jurisdiction in only one situation. The other situations have all come to the Court through referrals from the States concerned and the Security Council. Moreover, the ICC has declined to investigate only two situations outside of Africa. This small number of decisions provides an insufficient basis to conclude that the ICC is discriminating in its selection practices. Moreover, the ICC has credibly asserted that its decisions have been based on the gravity of the situations.

Second, critics claim that the ICC has failed to respect the sovereignty of African states. This is essentially a legal claim. Critics charge the ICC with failing to respect the international law governing head of state immunity, which they claim prohibits prosecution of heads of state, even for international crimes. They also charge the Court with violating the Rome Statute’s provisions regarding the admissibility of situations. In particular, they assert that the ICC is not respecting the principle of complementarity, which prohibits the Court from investigating or prosecuting cases when a state with jurisdiction is doing so in good faith. Again, there is insufficient evidence to support either of these claims. Although the legal requirements of admissibility and the law of immunity for non-parties remain unclear, the ICC has interpreted and applied them in a plausible fashion.

The strongest argument that the ICC’s exclusive focus on Africa is inappropriate is a sociological one. Substantial evidence suggests that perceptions of the ICC’s fairness have suffered in at least some African audiences as a result of the focus on Africa. However, it remains unclear whether such perceptions are located primarily at the governmental level or are shared widely among African populations. While some African governments, as well as the African Union, have voiced concerns about the ICC’s fairness, the available evidence suggests that African civil society continues substantially to support the work of the ICC.

Argument

Since the ICC began operations in 2003, it has investigated situations and prosecuted cases in six countries, all on the African continent. Four of these situations were referred to the Court by the states in question—the situations in Uganda, Democratic Republic of Congo, Central African Republic, and Côte D’Ivoire. The situations in Sudan and Libya, non-party states, were referred to the ICC by the UN Security Council acting under its Chapter VII powers to maintain and restore peace and security. The ICC Prosecutor has “triggered” the Court’s jurisdiction (with pre-trial chamber authorization) in only one situation: that of post-election violence in Kenya. The government of Kenya challenged the admissibility of that situation, stating that Kenya intends to conduct the necessary investigations and prosecutions itself. The government of Libya has likewise challenged the admissibility of ICC cases stemming from its 2011 civil war.

In recent years, a significant number of African political leaders and commentators have charged that the ICC is targeting Africa inappropriately.2 Critics have gone so far as to accuse the Court of neo-colonialism and acting as a tool of powerful states.3 They point to the exclusive focus on African situations, but also to the ICC’s decisions to issue arrest warrants for African heads of state. In particular, the Africa Union reacted negatively to the decision to issue an arrest warrant for Sudan’s current president Omar al-Bashir, going so far as to urge member states not to cooperate with the Court.4 Some commentators have also criticized the ICC’s decision to proceed with prosecutions in the Kenya situation despite the objections of the Kenyan government.5 Some Kenyan politicians have urged that Kenya withdraw from the ICC regime.6

The claim that the ICC is discriminating against Africa and Africans in deciding which situations to investigate and prosecute is a claim of moral inappropriateness. The argument is that the ICC is employing discriminatory procedures, yielding unfair outcomes. The argument is rooted in notions of procedural justice, elaborated by philosophers such as John Rawls.7 Procedural justice requires that decision-making processes be structured in a manner consistent with the production of equitable outcomes. If such processes include systematic discrimination based on invidious distinctions such as race or class, they violate principles of procedural justice.

The most frequent charge of procedural injustice is that the ICC is targeting situations in politically weak states while ignoring situations involving more powerful states. Some of these criticisms are based on misunderstandings about the extent of the ICC’s jurisdiction. Contrary to the assumptions implicit in some of the criticisms, the ICC does not have universal jurisdiction. The Court can only investigate situations in non-party states when the Security Council refers the situations. The blame for the ICC’s failure to investigate serious situations in non-party states therefore lies not with the ICC but with the Security Council. Thus, for instance, it is the Security Council that is currently blocking international investigation of the massive crimes being committed in Syria.

The evidence most relevant to charges of discriminatory situation selection is that the ICC has declined to open investigations in two situations outside the African continent: one involving allegations of crimes against humanity in Venezuela and another concerning alleged British war crimes in Iraq. This sample size is far too small to support the claim that the ICC’s decision making is based on invidious distinctions. Indeed, a number of other situations outside of Africa remain under preliminary examination and may ultimately result in investigations. Moreover, the ICC’s assertion that the African situations were selected based on their gravity and that the situations in Venezuela and Iraq were rejected on the same basis is credible. Although the concept of “gravity” remains under-theorized, many people consider the number of victims an important indicator of gravity. The African situations under investigation all involve large numbers of victims.

The second claim—that the ICC is insufficiently respectful of African sovereignty—is predominantly a legal one. Critics allege that the ICC is violating its own Statute by failing properly to apply the principle of complementarity in admitting situations, and that the Court is violating the international law of immunity by seeking to prosecute a sitting head of state. The Rome Statute strikes a balance between the rights of sovereign states to address crimes within their territories and the desire of the international community to end impunity for international crimes. This balance is most clearly reflected in the Court’s admissibility regime, which makes the Court’s jurisdiction complementary to that of national courts. The ICC is not permitted to investigate situations or prosecute cases when national courts with jurisdiction are doing so in good faith. Moreover, the Court must deem inadmissible cases of insufficient gravity.

As one would expect at this early stage in the Court’s work, these important provisions require further judicial elaboration. Nonetheless, all of the Court’s actions to date have been based on plausible interpretations of the relevant law. With regard to complementarity, the Court has ruled that it will defer only to prosecutions involving the same persons and conduct as are before the ICC.8 With the exception of Libya, where admissibility remains under consideration, none of the governments that have objected to the ICC’s actions in their states have initiated national prosecutions of the cases before the ICC.

Similarly, the ICC adopted a plausible interpretation of international law in determining that it could issue an arrest warrant of a sitting head of state. The relationship of the ICC regime to the pre-existing international law regarding immunity remains contested. However, the ICC’s view that Security Council referral renders head of state immunity inapplicable even with regard to non-party states is not an unreasonable one. The claims of legal inappropriateness, like those of moral inappropriateness, are thus largely unsupported.

However, the claim that the ICC’s exclusive focus on Africa is damaging perceptions of the Court’s fairness is more difficult to dismiss. This is an empirical claim that requires further exploration. In particular, it is not clear whether negative perceptions of the Court’s work are largely limited to government actors or have become more pervasive in African populations. As other commentators have noted, there is evidence that the ICC continues to enjoy considerable support in African civil society.9 Nonetheless, African governments are an important constituency of the Court and there is reason to be concerned that perceptions that the ICC is acting unfairly have spread well beyond government actors.

The ICC should therefore continue and perhaps increase its efforts to combat such perceptions. Appointing an African prosecutor was an important step in this direction. Others should include widespread dissemination of information regarding the situations under preliminary investigation that are outside of the African continent. Indeed, to the extent possible within the confines of law and morality, the ICC should consider including such situations in the Court’s docket in the near future.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Richard H. Fallon, Jr., Legitimacy and The Constitution, 118 Harv. L. Rev. 1787, 1794 (2005), available online.

  2. 2.

    Similar criticisms have been made of the UN Security Council. See, e.g., Max du Plessis, The International Criminal Court that Africa Wants, Inst. For Sec. Studies 67-76 (2010), available online. Such arguments are omitted from this discussion since they are outside the scope of the question presented.

  3. 3.

    For examples of such criticisms see Charles C. Jalloh, Regionalizing International Criminal Law, 9 Int’l Crim. L. Rev. 445, 462-463 (2009), and Kai Ambos, Expanding the Focus of the ‘African Criminal Court’ in Ashgate Research Companion to International Criminal Law: Critical Perspectives 6 (Y. McDermott, N. Hayes and W. A. Schabas, eds. 2012).

  4. 4.

    For further discussion see Ambos, supra note 3, and Tim Murithi, Africa’s Relations with the ICC: A Need for Reorientation, 1.12 Perspectives: Political Analysis, and Commentary from Africa 4, 9 (2012).

  5. 5.

    Id. at 463-465, 485; Alexis Arieff et al., International Criminal Court Cases in Africa: Statutes and Policy Issues, Congressional Research Service 16-17, 26-29 (2011).

  6. 6.

    BBC News, Kenya MPs vote to leave ICC over poll violence claims, Dec. 23, 2010, available online (last visited March 2, 2013).

  7. 7.

    John Rawls, A Theory of Justice (T.M. Scanlon, ed., 2005).

  8. 8.

    Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Pre-Trial Chamber I “Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58”, ¶¶37-39 (Feb. 10, 2006), Available online.

  9. 9.

    See Ambos, supra note 3, at 10; Jalloh, supra note 3, at 451.

Taku Avatar Image Chief Charles Achaleke Taku Barrister at Law, International Lawyer Lead Counsel, International Criminal Tribunal for Rwanda, Special Court for Sierra Leone, ICC

Has the International Criminal Court Inappropriately Targeted Africa?

The strain in the relations between the Prosecutor and the African Union (AU) is profound and calls for a quick solution. Leading the charge, the AU and some critics of the Prosecutor’s policy on Africa that transcend ethnic, racial, cultural, and regional barriers, allege that ICC prosecutorial policies towards Africa are destabilizing and insensitive to other avenues put in place by the AU to provide African solutions to African problems.

Summary

Though the ICC has jurisdiction over persons accused of international crimes following its statutes, it has been blamed for targeting only Africa while turning a blind eye on perpetrators in other regions of the world where it also has jurisdiction.

The Rome Statute clearly states the scope of the ICC’s jurisdiction. Notwithstanding, the Prosecutor of the ICC is accused of inappropriately targeting Africa in the exercise of her prosecutorial discretion within its first decade of existence, while overlooking international crimes perpetrated in other parts of the world. The Prosecutor concedes but argues forcefully that her targeting of Africa is not inappropriate. The Prosecutor raises a number of reasons why her intervention is not only appropriate but also salutary. In my opinion, some of the reasons for targeting Africa, apart from the reasons she may have given, are policy considerations, which in effect are based on international politics. The inappropriate targeting of Africa is both contextual and focused. In the cases opened in Africa by the Prosecutor, the focus has hardly justified the stated rationale for the intervention.

Regrettably many African leaders are mere puppets of neo-colonial interest that has helped them to eternalize power in exchange for defending the neo-colonial economic and hegemonic agenda. It is often under these circumstances that crimes falling under the jurisdiction of the ICC are perpetrated. For these neo-colonial puppets, the ICC referral procedure has become the new weapon of silencing opposition while to some who hold the veto power in the United Nations Security Council, it is a viable weapon to support regime change.

The strain in the relations between the Prosecutor and the African Union (AU) is profound and calls for a quick solution. Leading the charge, the AU and some critics of the Prosecutor’s policy on Africa that transcend ethnic, racial, cultural, and regional barriers, allege that ICC prosecutorial policies towards Africa are destabilizing and insensitive to other avenues put in place by the AU to provide African solutions to African problems. The ICC Prosecutor’s policy towards Africa raises significant weighty, legal, political, and ideological problems. The targeting and then neglecting Africa in time of need is not limited to the ICC but extends to the United Nations who, to a significant extent, is responsible for the inappropriate focus blamed on the Prosecutor. The UN through international justice have failed to reasonably apply the UN Charter’s stated goals in their relations with Africa and the settlement of African conflicts. The ICC needs to go after those who commit international crimes as well as those who facilitate the commission of these crimes. When the Prosecutor of the ICC adopts this policy, she will see a compelling need to investigate international crimes all over the globe.

This paper attempts to answer the question, “Has the ICC inappropriately targeted Africa?” My answer is in the affirmative. I examine the complexity of this serious problem and make proposals on how to resolve it. I conclude that within this decade of exclusive focus on Africa, a reasonable appraisal of the influence, relevance, and performance of the ICC as a global institution established by the assembly of State Parties to “exercise jurisdiction over persons for the most serious crimes of international concern” cannot reasonably be ascertained. The ICC is little known outside Africa and commands little respect or attention in other conflict regions of the world.

Argument

Protected Values

The question whether the exclusive focus of the ICC’s Prosecutor on Africa in the ICC’s first decade of existence is inappropriate, seems easy and straightforward at face value, considering the fact that the Prosecutor admits to the exclusive focus but denies that the focus is inappropriate. The Prosecutor provides a number of measured compelling reasons to support the manner in which she has exercised her prosecutorial discretion in total rejection of the criticism. The reasons provided by the Prosecutor find support from a number of African civil society organizations and foreign organizations present in Africa. The coalition of Civil Society Organizations supporting the ICC’s mandate in Africa also make a compelling case for an improvement of the relations between the African Union and the ICC but fail to comprehensively address the concerns of the AU and many on the African continent.

The AU and Africa Challenge must be put in perspective. There are some who enjoy the support of neo-colonial interests, who are riding on the concerns and opposition of the AU and many people in Africa in the hope of shielding themselves from being held accountable for the massive crimes perpetrated by them which fall within the jurisdiction of the ICC. In perspective, I venture to mention of the situation in the Democratic Republic of the Congo and the criminal responsibility of some regional leaders who are opposed to the ICC. The inability of the ICC to investigate and prosecute these individuals in cases in which it has nevertheless intervened, opting rather to selectively and discriminatorily target peripheral individuals, is one rationale for Africa’s opposition to the ICC. Their misplaced opposition is at variance with the rational opposition of a majority in the continent which is made in the best interest of Africa.

After an anxious consideration of the reasons provided in justification of the exclusive focus of the ICC on Africa, I respectfully beg to hold the considered view that the exclusive focus is inappropriate and unjustified. The rationale for my stated position is that the exercise of prosecutorial discretion is informed by policy and political motivations that targets Africa. The coalition of Civil Society Organizations pointed to the conduct of the Security Council, which is the political organ of the United Nations, stating that it inflames the conflict between the AU and the ICC. While this position may be true, it is limited and obviates policy considerations that are motivated by international politics.

Permit me therefore to cite and rely on two notable scholars on the influence of politics in the administration of International justice in discussing my considered contribution on the topic at bar. Writing in the Virginia Journal of International Law, Jenia Iontcheva Turner states that:

The “Legal” and “Political” conceptions of international criminal trials are ideal types. To some degree all law is political…when trials move further along the political spectrum, defendants’ rights suffer. To the extent that we are concerned about preserving space for individual rights in the face of larger political social goals, we should be careful to distinguish between political and legal elements in criminal trials. The frequent use of show trials by oppressive regimes reminds us of this very real and relevant distinction. Even trials which are exclusively political, there are instances in which political and adjudicative purposes clash, and one must prioritize above the other.1

Underscoring the same point, Malcom N. Shaw stated,

It is the legal quality of international law which is the first question to be posed. Each side to an international dispute will doubtless claim legal justification for its action and within the international system there is no independent institution able to determine the issue and give a final decision. It is clear that there can never be a complete separation between law and policy. No matter what theory of law or political philosophy is professed, the inextricable bonds linking law and politics must be recognized.2

The context addressed by the two distinguished scholars above are applicable to the case at bar. The politicization of international justice is exactly what the founding fathers of the UN forbade when they stated in the preamble of the United Nations Charter that the United Nations was created:

To save succeeding generations from the scourge of war, which twice in our life time, has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.

The human rights justification for the creation of the UN is firmly established in Articles 1(3) and 55(c) of the UN Charter. All International Human Rights Conventions as well as the Statutes of International Courts and Tribunals derive their legality and legitimacy from these provisions of the UN Charter.

A critical look at the inappropriate exclusive targeting of Africa by the Prosecutor of the ICC in this first decade of the ICC sends mixed signals based on the reality of the situation that are at variance with the stated goals of the founding fathers of the UN in 1946. My opinion about targeting and then neglecting Africa in time of need is not limited to the ICC but extends also to the UN which a variety of opinions rightly hold, is to a significant extend responsible for the inappropriate focus blamed on the Prosecutor. It is therefore safe to state that the United Nations like the ICC through international justice have failed to reasonably apply the UN Charter stated goals in their relations with Africa and in the settlement of African conflicts.

Encouraging Impunity

The intensification of bloody armed conflicts on the African continent in 2012, despite the ICC and UN interventions to address the situations supports this harsh judgment. In relation to the ICC, in particular, a majority on the African continent warmly greeted the ICC’s creation. They saw it as a paradigm of justice that finally was to lead the fight against impunity, and free the world from the scourge of war and international criminality that “in our life time brought untold suffering to humanity.” To attain this lofty goal, the ICC was expected to consider and fight all forms of discrimination that is at the very heart of the fight against impunity. The continent of Africa over the centuries suffered the most inhuman crimes imaginable; the slave trade, the partition of Africa in 1884 during the Berlin Conference, Colonial wars, war crimes, genocide and crimes against humanity. Nations, like France shortly after their liberation, that were targeted and humiliated by German aggression, created the UN with the solemn pledge of “Never again”. They adopted a charter that had the promotion and protection of fundamental human rights as the foundations on which a just, free, and peaceful world shall operate. Then they turned their guns on Africa in its just struggle for recognition and a place among civilized nations. The paradox that these crimes against Africa intensified in 1948—the year the Universal Declaration of Human Rights of 1948 was promulgated—and 1949—the year of the Geneva Conventions—make Africa, more than any other continent, very sensitive to any form of discrimination. In particular, discrimination from an institution or organization established to fight all forms of discrimination. Thus Africa and much of the world did not contemplate that the ICC, whose creation the civilized world sought since the First World Peace Conference in 1898, would for any reason whatsoever, follow the path traced at Nuremburg and Tokyo in its discriminatory and selective exercise of Prosecutorial discretion. I concede that the Prosecutor is not entirely to blame for this situation. The blame falls on several judicial and political actors, and includes forces within Africa.

Since the underlying founding principles of the UN largely inspired the Rome Statute of the ICC, it was also expected that in the execution of its mandate, the ICC would apply the principles of regional balance that apply to the very institutions that administer the court and international justice on behalf of mankind. Regrettably, that has so far failed to be the case with the inappropriate exclusive targeting of Africa by the Office of the Prosecutor of the ICC in its first decade of existence.

Inappropriate Targeting

That the Prosecutor of the ICC has targeted Africa in her investigations during the ICC’s first decade of operation is not reasonably disputed. In my opinion, the inappropriate targeting of Africa is both contextual and focused. In other words, in the cases the Prosecutor has opened in Africa, the focus has hardly justified the stated rationale for the intervention. Neo-colonial puppets who in the advancement of the geo-political and economic agenda of Western and emerging Eastern powers perpetrate crimes that fall within the jurisdiction of the ICC are insulated from the selective and discriminatory investigations and prosecutions at the ICC. Paradoxically, some of these powerful individuals are among the most vocal, opposing ICC inappropriate targeting of Africa. Their opposition is not in the interest of Africa, but intended to send warning signals to their neo-colonial masters that, if left unchecked, the new Prosecutor Ms. Bensouda, assisted by a highly competent and experienced deputy James Steward may change course from the highly resented one traced by Moreno-Ocampo, by exercising prosecutorial independence and commence investigations against them for the documents crimes they have perpetrated with impunity. The inability of the Prosecutor to investigate these categories of individuals justifies the criticism that the inappropriate targeting of Africa serves a neo-colonial agenda and not the protection of victims of international crimes perpetrated on the continent.

In a letter to the AU Chairperson Dr. Nkosazana Dlamini-Zuma dated January 13, 2013, a coalition of civil society organizations and international organizations with presence in Africa admitted that Africa has exclusively been targeted by the Prosecutor but sought justification along the lines of those the Prosecutor has consistently provided in the past. Among the justification provided are that a majority of the current investigations came about as a result of a request by the countries where the crimes were committed. And that the ICC Prosecutor has in fact acted on his own to open an investigation only in one case, with the rest referred by UN Security Council Resolutions. The coalition held the considered view that efforts by the Office of the Prosecutor to prosecute crimes perpetrated against African victims should be lauded and not criticized. It blamed the ability of permanent UN Security Council members to utilize their veto power, which means that council action has been influenced by political considerations that cripple opportunities to advance justice in certain situations. In the view of the coalition, “it appears that much of the frustration that has emanated from the AU with regard to the ICC relates more to Security Council action than the court itself.” These reasons, which I admit have a measured modicum of plausibility, miss the bigger picture and context in which the allegation of inappropriate targeting is predicated. I will discuss them herein.

First the exercise of prosecutorial discretion to inappropriately target Africa is a policy rather than a legal consideration. With the exclusive focus on Africa nevertheless, how can anyone reasonably explain the fact that such intervention has not led to the investigation and prosecution of powerful individuals close to powerful Western economic and geo-political interests whom UN Mapping and Expert Reports have determined bear the greatest responsibility for the crimes perpetrated in the East of the Democratic of the Congo? And can it not be reasonably stated that the inability of the Prosecutor to investigate these individuals, opting rather to investigate and prosecute peripheral individuals with mitigated results, encourage impunity rather than protect the rights of victims? In the situations in Libya and Côte d’Ivoire, where the political mantra of Responsibility to Protect accorded legitimacy to non state actors—among them criminal gangs—did the hasty intervention and selective investigations in the heat of armed conflict and regime change not expose the ICC to criticism of acting as an agent of regime change and facilitator of the hegemonic geo-political/economic agenda of NATO and Western powers rather than an independent administrator of international justice? Several UN investigative agencies have since come out with reports establishing that these criminal gangs committed international crimes within the mandate of the ICC but so far have taken no further action to protect the interest of the victims of these crimes. How can one reasonably explain this lack of action? Additionally, UN reports have established that the judiciaries of these two countries are ill prepared to conduct free and fair trials against their erstwhile opponents and the members of the criminal gang allied to the victors. The Prosecutor holds otherwise and Mr. Ocampo, in one of his media outings, stated as much. How can it be reasonably explained that the investigations of international crimes that fall within the mandate of the court in these two countries ended with the murder of Muammar Gaddafi and the indictment of Laurent and Simone Gbagbo? Are there two categories of victims of the crimes perpetrated in Africa the protection of whom Prosecutor justifies this targeted intervention; victims of crimes perpetrated by Western supported victors who deserve prosecutorial intervention and protection and victims who are supporters of the vanquished who deserve no support and protection?

How can one reasonably explain the misuse of the referral procedure by dictators and neo-colonial puppets in the continent when, if proper investigations were conducted by the Prosecutor, they would be held to bear the greatest responsibility for the crimes over which they made the referrals? The Central Africa Republic readily comes to mind. Francois Bozizé came to power through a coup d’état in which many civilians lost their lives. Once in power, he established one of the most repressive criminal regimes on the African continent and set in motion the referral procedure in the hope that he could use the ICC intervention to stifle opposition to his dictatorial rule. The selective investigation of the Prosecutor targeting the late President Ange-Félix Patassé and his supporters sent a clear message to these supporters that the only way they may free themselves from the threats of selective investigation and prosecution was to take up arms against Bozizé. France and the US, for once, declined to stand by him in his criminal adventure against his own people. Other dictators in the continent came to his rescue and he accepted a political settlement that saw him relinquish most of his absolute power. This is a clear case of the abuse of the referral process against the victims of repression whom the ICC should be protecting.

Article 15(1) of the Statute of the ICC states that “the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the court.” In making the decision to initiate investigations the Prosecutor must take into consideration the principle of complementarity enunciated in Article 17 of the Statute.

This provision from inception was applauded by many in Africa who believed that victims and ordinary people could obtain justice by submitting their information directly to the Prosecution to enable investigations and possible prosecutions, in situations where they cannot obtain justice in their respective countries. The Prosecutor exercised this prosecutorial discretion for the first time ever in the “Situation in Kenya” where, after an acrimoniously fought election, serious crimes were perpetrated. In so doing, he set the threshold so low that many in the continent perceived it as an open door to unrestrained intervention in the internal politics of African nations. Although the legal institutions of Kenya were weak at the time of intervention, and there were perceptible obstacles by politicians to make meaningful reforms to meet international standards, there has been perceptible and even remarkable efforts on the part of the government and people of Kenya to conduct meaningful judicial reforms that can conduct effective investigations and prosecute the perpetrators of the crimes over which the Prosecutor assumed jurisdiction. This contrasts with the situation in Côte d’Ivoire and Libya where the Prosecutor has argued that crimes under the jurisdiction of the court may be investigated and prosecuted in those countries despite credible reports that the accused would never receive fair trials in those countries. His balancing act in picking and choosing alleged perpetrators in Kenya on factors which appear to be ethnic and political have sent shock waves through complex Africa where similar factors are often the rationale for political tension and conflict.

Political Environment

The advent of multiparty democracy in Africa elicited a neo-colonial onslaught which reignited, in ways unimagined, economic cold war with new actors, wrestling it out with old neo-colonial geo-political foxes that have resulted in an emergent class of foreign-sponsored political activists on the continent. The participation of this emergent class to defend and protect distinct geo-political strategic, economic, and political interests made many of them complicit in some of the crimes that fall within the mandate of the ICC. The fact that the Prosecutor, whose independence is clearly affirmed in Article 42 of the Statute, is perceived to ally and collaborate with some in these emergent so-called civil society class in the execution of her prosecutorial mandate sends the wrong signals to victims and suspects whom the prosecutor has a duty to protect while promoting the rule of law.

The Prosecutor set his eyes and focus on the troubled continent at a time when the Gulf War and predatory economic quest for domination by the sleeping giant from the East, China, set in motion a second scramble for Africa. This happened at a time when Africa had hardly recovered from the effects of the first scramble in 1884. The provisions of Article 13 (referral by the UN Security Council), Article 14 (referral by a state) and Article 15 (proprio motu investigations by the Prosecutor) with the possibility of a deferral (Article 16) considered separately or in aggregate are exercisable within this charged political context. Regrettably, many African leaders are mere puppets of neo-colonial interests that have helped them to eternalize power in exchange for defending the neo-colonial economic and hegemonic agenda of these foreign powers. It is often under these circumstances that crimes falling under the jurisdiction of the ICC are perpetrated. For these neo-colonial puppets, the ICC referral procedure has become the new weapon of silencing opposition while, to some who hold the veto power in the United Nations Security Council, it is a viable weapon to support regime change. Once that goal is attained, support for the ICC continuing investigations ends and every effort is made to obstruct those ICC investigations while paying lip service to the pertinence of the investigations.

Sensitivity to the Specificity of Africa

From an African perspective, although Africa was not a subject of international law, the years 1884, 1898, 1907, 1919 and 1946, were all critical to the long march to the establishment of the ICC. The enthusiasm with which Africa greeted the establishment of the ICC is evidenced from the high number of African states that signed the Rome Statute. The disappointment of Africa with the ICC policy decisions that target Africa notwithstanding, Africa neither detests the court nor intends to completely sever relations with the court. The reason is that the court is a necessity for Africa and the world. The court was created for a higher purpose of fighting impunity and protecting universal values that are sacrosanct, and whose protection are a sine qua non to the promotion and protection of fundamental human rights that are endangered species in the troubled continent.

Among these values are those that we thought would protect Africa from the neo-colonial onslaught and the proliferation of arms that are supplied in exchange for the natural resources of Africa in the place of food, shelter, transfer of technology, and the enthronement of a democratic culture. These, it is hoped, will provide a genuine check to the wave of crimes that the Prosecutor has pointed at to justify the inappropriate discriminatory targeting of Africa. This inappropriate targeting of Africa, no matter the justification, gives the perception that Africa and Africans might be inherently criminal. The intervention in the situation in Mali, and the professionalism with which it has been handled so far, provided progressive Africans with a ray of hope that, at long last, the investigative process at the ICC is being depoliticized. In support of this observation, the Prosecutor made public her Article 53 reasons for the intervention. In a recent press statement, she evinced a clear intention to investigate all the parties in the conflict, warning the Malian Army of the consequences of perpetrating war crimes against Militants of the criminal gangs that seized part of the Malian territory. Rather than the media circus that the world was fed with previously, which irritated many in the continent, the situation in Mali has been handled in a principled, professional, and respectful manner; conscious of ethnic, cultural, and political sensitivities of those whom the investigations may concern—victims, suspects, potential witnesses, and the families of all involved.

Africa believes that, unless the Prosecutor gets out of her comfort zone of Africa to pay attention to other areas of the world where she has admitted that crimes with the jurisdiction of the ICC have been perpetrated, it will be difficult, years along the line, to truly assess the competence and ability of the ICC to execute the mandate conferred on it by the Rome Statute. Ten years on, it is still perceived as a third world court, indeed an African court. The more the court shies away from extending its reach to crimes perpetrated in other continents, the more it will face greater challenges in doing so in the foreseeable future. This inappropriate targeting of Africa has already dented the credibility of the court and places future cooperation and the very survival of the court as a credible institution of international justice in justifiable doubt.

The ICC must be sensitive to the presence of other conflict management and conflict resolution actors in the field in Africa. The Truth and Reconciliation Process is Africa’s greatest gift to International Peace and Security. Sierra Leone has attained a degree of peace, security, and remarkable recovery from ten years of a destructive war due to joint efforts made by the Special Court for Sierra Leone and the Peace and Reconciliation Commission set up after the war. In that situation, while maintaining their respective independence in the execution of their respective mandates, the Special Court and the Truth and Reconciliation Commission maintained and sustained a dialogue which was made possible by a general awareness of the importance and respect for the processes and procedures going on in each other’s docket. Progressive African countries are jealous of their sovereignty. Where there is a perception that an intervention and investigation has caused a state to lose its sovereignty to a sort of super sheriff, the potential is real for resentment and may inhibit the ability to conduct effective investigations.

Surmountable Challenges

The tension between the AU and the ICC Prosecutor presents serious challenges for the AU as well as the ICC. The Challenges facing the ICC have reasonably been explained above. Those challenging Africa are many, even daunting. For the first time, Africa is being challenged to ensure that the laws in member states, whether member states of the ICC or not, conform to international standards encapsulated in the ICC Statute. Additionally dictators must create democratic space and an enabling environment for the men and women in Africa, which I call the alternative Africa, to live in freedom and peace. The time for enacting repressive laws and decrees to sustain dictatorial neo-colonial regimes is over. This conflict has also drawn the attention of all to attempts by dictators on the continent to use the ICC referral procedure to settle political scores and perpetrate international crimes. Although the Central Africa situation led to the indictment of Jean Claude Bemba, it also encouraged the rebellions that have exposed the fragility of the dictatorship and a real possibility that, with some serious investigation, he may soon find himself an unwilling guest of his own referral.

I support the efforts by the AU to confer the African Court on Human and Peoples’ Rights with Criminal Jurisdiction to investigate and punish international crimes perpetrated on the continent. The challenges are many, although that is no reason to stay the laudable initiative. However, it must not be done because of the disagreement with the ICC due to its inappropriate focus on Africa. That situation can be redressed and will be redressed. It should also not be done to shield neo-colonial puppets in power who are presently shielded from investigations and prosecution due to their record of collaboration and service to their neo-colonial masters.

The Way Forward

International Criminal Law is a child of necessity. Africa and the world need the ICC; so also the ICC needs Africa. The ICC needs to extend its influence universally, in order to justify its relevance. Whereas it is easy, even comfortable, to justify its exclusive targeting of Africa under the above circumstances, the Prosecutor needs as a matter of urgency to conceive and execute a reasonable plan about how to exercise its mandate around the world. Attempts to sweep under the carpet concerns expressed in good faith by those who see the Prosecutor’s investigation policies towards Africa as inappropriate as well as the well-founded concerns by the AU, will only send wrong signals to other regions of the world that the fate of Africa may afflict them also if they invite the ICC into their internal conflicts.

Like others before, and this includes the coalition of civil societies in Africa and foreign NGO’s present in Africa, I respectfully urge the Prosecutor of the ICC and the AU to have a useful discussion on how to address AU concerns so that the ICC may exercise its mandate without any constraints. The Prosecutor of the ICC must also recognize that the AU is the voice of the continent and that concerns expressed by the Union about the destabilizing effects of some of the prosecutorial interventions need to be heeded and addressed. Being insensitive to concerns about the destabilizing effects of some of the interventions brings resentment leading to decisions not to cooperate. The ICC depends on state and regional cooperation to fulfill its mandate. That cooperation can only be earned and not imposed. Earning the cooperation demands respect and sensitivity to the security and other concerns of the AU.

Conclusion

It is my considered opinion that the reasons that informed the call for the establishment of a permanent International Criminal Court are as valid now as they were in 1898 when it was first made. Ever since, the world has not grown safer. New actors and new challenges are increasing threats to world peace and security. Crime and criminals have become more sophisticated demanding new tolls and institutions to fight international crimes. Once the ICC recognizes that targeting Africa is misplaced, then and only then will the fight against international impunity attain its deserved significance. The ICC’s present Africa policy obviates the fact that crime has no nationality, no ethnicity, no race, and no religion. With the present day sophistication of crimes and the means with which they are perpetrated, the focus on Africa is misplaced. I subscribe to the statement credited to His Honor the Chief Justice of Rwanda reported in a recent edition of the New Times of Rwanda when he said that a majority of weapons used in perpetrating crimes in Africa are not manufactured in Africa. The ICC needs also to go after those who violate international arms embargo and proliferate these weapons knowing that they would be used to perpetrated crimes punishable within the Statute of the ICC.

The criteria for proprio motu intervention, the insufficient reasons justifying the inappropriate targeting of Africa, and the selective and discriminatory prosecutions initiated in situations in the countries where the ICC has intervened, from a policy and jurisprudential perspective, sets questionable standards and precedents for intervention in Africa and elsewhere in the world that nevertheless hope to rely on the expertise, experience, and specificity of the ICC to provide an energetic response to new challenges that threaten our common humanity. Can the ICC change focus to attain the legitimacy that must accompany its actions? This is question that demands consideration. When the Prosecutor of the ICC makes a determination to go after the perpetrators of the crimes and those who facilitate the perpetrations of these crimes, she will see a compelling need to cross the Atlantic or the Indian Ocean to exercise the mandate. At least on that score, and that score alone, the need to lessen the pressure on Africa with the accompanying problems will become evident.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Jenia Iontcheva Turner, Defense Perspectives on Law and Politics in International Criminal Trials, Va. J. Int’l L., Vol. 48, No. 3, 2008, p.543. Abstract available online.

  2. 2.

    Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press 2005, pp 9 and 11, available online.

Tejan-Cole Avatar Image Abdul Tejan-Cole Executive Director Open Society Initiative for West Africa (OSIWA)

Is the ICC’s exclusively African case docket a legitimate and appropriate intervention or an unfair targeting of Africans?

Assessing the legitimacy and fairness of ICC’s intervention in Africa requires a more detailed analysis that goes beyond the geographical make-up of its case docket. Ideally, and Africa should further this pursuit, African victims should have recourse to justice and accountability in African courts that are easily accessible to them. Indeed this is best approach to curtail the ICC’s intervention. We must not forget that ICC intervention signals first and foremost a failure of states, which have the primary responsibility to fairly and impartially investigate and prosecute crimes within their jurisdiction.

Summary

The International Criminal Court (ICC) continues to face increasing criticisms about its purely African case docket since all 8 of its active investigations (situations) and all 18 prosecutions (cases) are against Africans.1 The Court’s expanding global reach and the Office of the Prosecutor’s (OTP) overall prosecutorial strategy in selecting situations and cases, has raised concerns about the legitimacy of the ICC and its ability to dispense indiscriminate justice for crimes under its jurisdiction. The ICC’s focus on Africa has prompted many within and beyond Africa to ask why it is only Africans facing international justice in The Hague when crimes are widespread in other parts of the world.

Some have gone so far as to accuse the Court of being a neo-colonialist institution peddling a Western agenda that seeks to control African politics through ICC investigations and prosecutions. This perception of the Court held by some Africans and non-Africans alike as well as some individuals in countries where the ICC is operating should not be ignored. There is need for a stronger complementarity agenda and more substantive engagement with African leaders, civil society and victims if the Court is to be successful and effective in administering justice in Africa. Supporters of the Court, which includes most victims, see it as the only avenue to hold certain military and political leaders accountable. They know all too well that without the ICC, impunity will prevail for state-sponsored and other mass crimes.

This author takes the view that the ICC’s focus on Africa is both necessary and appropriate. Assessing the legitimacy and fairness of ICC’s intervention in Africa requires a more detailed analysis that goes beyond the geographical make-up of its case docket. Ideally, and Africa should further this pursuit, African victims should have recourse to justice and accountability in African courts that are easily accessible to them. Indeed this is best approach to curtail the ICC’s intervention. We must not forget that ICC intervention signals first and foremost a failure of states, which have the primary responsibility to fairly and impartially investigate and prosecute crimes within their jurisdiction.

This article seeks to contribute to the debate by focusing on whether the Situations and Cases before the Court, despite being African in character, are justified from a legal stand-point. However this approach does not detract from legitimate calls for the OTP, as the triggering force of ICC jurisdiction, to do more in other regions under its authority where international crimes have been committed. Victims everywhere deserve some form of national or international justice. There are many reasons in favor of ICC’s involvement in African Situations; from the nature of the crimes and widespread systematic conflicts on the continent to a lack of capacity or willingness to hold perpetrators accountable, thereby providing redress to victims. The Court’s delicate relationship with Africa highlights its role in on-going conflicts and the ever present power politics between Africa and the West through referrals and deferrals by the United Nations Security Council.

The OTP’s preliminary examinations will be addressed briefly to determine whether intervention in those non-African countries is appropriate. Considering its broader geographical scope of open preliminary examinations, for this very young international institution, it is still too early to substantively judge its intention and ability to deliver justice beyond Africa.

Argument

Background

Founded on the principle of complementarity, the Rome Statute recognizes the primary responsibility of national systems and the complementary role of ICC only where the relevant state is either unwilling or unable to investigate or prosecute international crimes.2 Despite being hailed as the first permanent international criminal court, there are many misconceptions about the scope of ICC’s powers and consequently expectations of its ability to take action in any part of the world. In reality, the Court has inherent jurisdictional limitations and capacity constraints that prevent it from acting against all individuals and in all situations where ICC intervention is desirable.

Principally, the ICC lacks universal jurisdiction to make it a truly global institution. While that remains an achievable goal, with a membership of 122 State Parties,3 the Court cannot choose to automatically assert territorial or personal jurisdiction to open investigations or prosecutions in 71 other countries within the United Nations system or against their nationals. These non-State Parties beyond the ICC’s reach include Syria, Iran and Iraq, as well as powerful nations like Russia, China and the United States of America. The only way the ICC can assert personal or territorial jurisdiction for non-State Parties is where it is invited by that non-State Party through a formal declaration or by the United Nations (UN) Security Council using its chapter VII powers under the UN Charter.4 In other words, beyond serious crimes conducted on the territory of a State Party or involving a State Party’s nationals,5 the ICC’s ability to intervene is seriously hampered. Considering its present predicament, Syria provides a good illustration—ICC’s possible intervention is solely dependent on a referral by the UN Security Council since it is inconceivable that the Assad regime will declare an acceptance of the Court’s jurisdiction. It is unlikely that this will happen soon as Russia, and possibly China, will likely use its veto to prevent this.

Additionally, the ICC’s jurisdiction is further limited to war crimes, crimes against humanity and genocide6 occurring from July 2002.7 Therefore the Court does not have subject-matter jurisdiction over other serious crimes such as terrorism or piracy. For non-State Parties, ICC’s temporal jurisdiction can be furthermore limited by the referral authority8 to a period after July 2002. To a large extent, in practical terms, the method of referral determines the level of state cooperation that the OTP can expect to receive for its investigations and prosecutions from the affected government. State cooperation includes access to crime scenes, victims, official records, witness protection, enforcement of arrest warrants and securing witness attendance in court. This reality favors self-referrals and voluntary acceptance of jurisdiction by non-State Parties over the Prosecutor’s unprompted powers to open investigations and initiate proceedings (proprio motu) and UNSC referrals. Amongst the 122 ICC states parties, from July 2002, there have been several major conflicts that may meet the threshold to warrant the Court’s intervention. The majority of these conflicts have been in Africa.

Moreover, ICC’s intervention must respect the principle of complementarity, which the OTP defines as “an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office, taking into consideration the Office’s policy to focus on those who appear to bear the greatest responsibility for the most serious crimes. Where relevant domestic investigations or prosecutions exist, the Prosecution will assess their genuineness.”9 This means that inaction by State law enforcement authorities mandates the Court to act whereas any State action is subject to an assessment of whether or not it is intended to shield an individual from accountability. The ICC’s Appeals Chamber has adopted a same person/ same conduct test, which requires the investigation or prosecution of the same individual for the same crimes, in order to determine whether a case currently before the Court should be inadmissible.10 Furthermore the OTP’s policy of charging the most responsible, based on the complementarity principle and guided by realism, inevitably means that even in spite of the Court’s intervention, its capacity constraints will result in some victims being denied access to justice unless states shoulder their primary responsibility to hold perpetrators accountable. Thus regardless of the Court’s involvement, domestic action is indispensable for an effective international justice system. Lastly, the Court will consider the sufficient gravity of the crimes by assessing the scale, nature, manner and impact of the alleged crimes; as well as the vague provision of ‘interests of justice’ to determine whether an investigation would not be desirable.11

Even though any State Party can refer the situation of another state party to the Court, so far no state has done so outside of the UN Security Council framework. This is unlikely to change soon. Two Situations, Darfur (Sudan) and Libya, were referred by the UN Security Council, a global system subscribed to by 193 nations that include 53 African States. Furthermore, 6 African States directly voted in favor of one or the other referral. Gabon, Nigeria and South Africa supported the Libyan referral,12 whilst Algeria, Tanzania and Benin backed the Darfur referral.13 The African block, which constitutes the largest of any continent with 34 State Parties, has referred four of the eight Situations presently before the Court. These self-referrals by Uganda, Democratic Republic of Congo, Central African Republic and Mali were made by their governments themselves. Another African State, Côte d’Ivoire, accepted the Court’s jurisdiction despite not being a state party to the Rome Statute at that time,14 which allowed the Prosecutor to open investigations using proprio motu powers. In only one situation, Kenya, has the ICC made a unilateral decision to intervene without direct prompting by the affected State Party or the Security Council. This was only after sufficient time had been given to the Kenyan authorities to take appropriate action to ensure accountability for the post-election violence of 2007. Even though to date all the ICC’s 18 cases and all 29 persons publicly indicted so far are Africans, it seems unfair to blame the ICC when African Governments have played a very active role in referring matters to the Court.

ICC Situations and Cases—Justified Legal Intervention

With due respect, what offends me most when I hear criticisms about the so-called African bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals and to forget about the millions of anonymous people that suffer from these crimes … because all the victims are African victims.15

Fatou Bensouda, ICC Prosecutor

The core mandate of the ICC is “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”16 As noted above, Africa currently presents the only basis of judicial activity for the ICC, with all 8 of the Court’s situations coming from the continent. As noted by the Court’s Chief Prosecutor, Fatou Bensouda, in a recent meeting with NGOs in The Hague, rather than accusing the ICC of focusing on Africa, excluding the UNSC referrals, it is African states that are coming to the ICC.17 African states parties to the ICC presently contribute less than 1% of the Court’s budget but are making significant use of the Court. The first ratification of the Rome Statute by any country was from the African country of Senegal, and this commitment by Africa continued with subsequent self-referrals and strong State Cooperation. It is necessary to look at these situations separately in order to put the ICC’s involvement in these countries into proper perspective.

Uganda became the first country that took steps to make use of this new institution when in December 2003, the government decided to refer the situation involving atrocities committed in its war with the Lord’s Resistance Army (LRA) to the ICC.18 This referral by the Ugandan government happened after a blanket amnesty, aimed at bringing the conflict to an end, had been granted to the LRA in 2000. The amnesty did not bring an end to the atrocities, thus leading the Ugandan President, Yowerri Museveni, to refer the situation to the ICC. The ICC Prosecutor went ahead to seek arrest warrants for the LRA leadership in 2004. In 2008, as part of a peace agreement with the LRA,19 the Ugandan authorities took steps towards domestic accountability by establishing a War Crimes division within the Ugandan High Court. While the War Crimes Division has faced its fair share of challenges, it presents a unique opportunity and example of how the ICC and the domestic justice system in Uganda can complement each other. With the level of atrocities committed during the conflict in Uganda, the ICC could indeed maintain its arrest warrants for the LRA leadership—a couple of whom are already dead and may at some stage consider warrants for senior leadership of the UPDF alleged to have committed atrocities, while the War Crimes Division could focus on accountability for other alleged perpetrators. The situation in Uganda is a good example of how the ICC and local justice mechanisms could complement each other. The ICC has so far had a great relationship with the War Crimes Division and the Court has assisted in capacity building efforts for personnel of the War Crimes Division, including its Ugandan judges.20 However, it remains to be seen whether it will fulfill its promise to deliver domestic justice or remain hampered by issues such as amnesties.

In the case of Democratic Republic of Congo, the country has been ravaged by a protracted and complicated conflict for over a decade. By the Government’s own admission, the Congolese judicial system is completely incapable of conducting any meaningful trials for alleged perpetrators of serious crimes. As a result of this, the government referred the situation to the ICC in April 2004. While the ICC’s investigations have focused mainly on crimes committed in the Ituri and Kivu region of eastern Congo, there is a need for broader efforts to ensure accountability at the local level especially for serious crimes committed in the Ituri and Kivu region by persons other than those in the custody of the ICC and in other parts of the country. Recent efforts to establish a hybrid tribunal in DRC have not yielded success as law makers in the country cannot agree on a statute for this purpose.

The situation in the Central African Republic is closely linked with the Democratic Republic of Congo as the subject of proceedings in this situation is the former Vice President of the DRC, Jean Pierre Bemba.21 Bemba is being tried for crimes committed by his fighting forces who intervened in the Central African Republic to help the former government of then President Ange Félix Patasse fight against rebel forces. A new government in the Central African Republic referred the situation to the ICC in December 2004, stating clearly that Central African Republic is unable to conduct credible investigations and prosecutions for serious crimes committed in the country’s territory. After his arrest, Bemba challenged the ICC’s jurisdiction to try him on the basis that local investigations had commenced in Central African Republic prior to his arrest. In response to this, the Government of the Central African Republic made oral and written submission to ICC judges, stating that there were no proceedings against Bemba in the Central African Republic. The Government explained that although it had commenced proceedings against Mr Bemba, this was quickly abandoned due to his immunity as a vice-president of the Democratic Republic of Congo and inability to prosecute him. The Appeals Chamber of the ICC eventually issued a decision stating that the case against Bemba could proceed to trial at the ICC22

Kenya presents the only situation where the ICC’s Prosecutor, using his proprio moto powers, initiated investigations on his own accord unsolicited.23 This followed the contested 2007 elections and the violence and commission of serious crimes that ensued. In this case, the Prosecutor gave sufficient time to the Kenyan authorities to institute domestic proceedings for the crimes under the ICC’s radar but as law makers could not agree on a bill to establish a hybrid tribunal within the domestic justice system, the Kenyan government, by its own admission made clear that it could not conduct credible investigations and prosecutions. The ICC prosecutor eventually brought charges against key political figures. When the Kenyan government later filed admissibility challenges before ICC judges, explaining that it was in a position to conduct credible proceedings at the national level, the Pre-Trial Chamber ruled, and the Appeals Chamber confirmed, that the state had to prove that it was investigating the “same persons” and for the “same conduct” if it wanted to take the cases away from the ICC. In recent weeks, civil society and victims groups have filed petitions against the government in Kenyan courts, requesting compensation from the government for police shootings and sexual and gender based violence crimes committed by persons other than those who are now subjects of ICC proceedings.24 As part of its judicial reform efforts, Kenya has also taken steps to establish a serious crimes division within its justice system. Though with challenges, a witness protection agency has also been established and the Truth, Justice and Reconciliation Commission is mandated to order reparations for victims of the post-election violence. These efforts, if properly and effectively managed, may achieve significant complementarity objectives in Kenya.

In Côte d’Ivoire, the government of Laurent Gbagbo in 2003 submitted a declaration accepting the jurisdiction of the ICC for crimes committed from the start of the conflict in 2002 even though it was not a state party to the ICC’s Rome Statute at the time.25 When violence escalated following disputed elections in 2010, the new government of Alassane Ouattara reaffirmed the declaration that was submitted in 2003. So far, the Court has issued arrest warrants for two persons in the country—former President Laurent Gbagbo and his wife Simone. Laurent Gbagbo was taken into the custody of the ICC in November 2011. The Ivorian government has since brought charges in the national court against Simone Gbagbo and other alleged perpetrators of crimes.26 There have been discussions on how the ICC and the national courts could complement each other as they conduct proceedings for different individuals.

The reality is that the ICC and other international tribunals cannot prosecute everyone involved in the various conflicts. The conventional wisdom now developing is that the ICC can only prosecute the very senior persons among alleged perpetrators while the national courts can focus on other alleged perpetrators. The previous prosecutor of the Court told NGOs at a meeting in May 2012 stated that his office was willing to collaborate with the Ivorian authorities in furtherance of their domestic accountability efforts.27 This approach holds immense promise for complementarity as it is an example of how the ICC can prosecute the senior commanders while national justice systems can focus on middle level or other perpetrators. It is a concern however that investigations and prosecutions have only targeted one faction of the conflict—Gbagbo and his supporters, and this is the case for both the ICC and national proceedings. If accountability mechanisms, both at the ICC and national levels are to be credible, then they have to investigate all parties to the conflict, not just one faction.

Mali is the latest country that has referred a situation to the Prosecutor of the ICC. Mali is still the seat of an on-going conflict and a clearly uncontroverted fact is that the Malian justice system lacks the ability to investigate and prosecute for crimes committed since the military coup of March 21, 2012.28 As the conflict ensues, it will be very significant if the ICC has a positive impact on these efforts. As the ICC can only prosecute a few people, a strengthened Malian justice system will be in a position to ensure accountability for other alleged perpetrators outside the ICC.

Two situations which have been complex are Darfur, Sudan29 and Libya30, both countries that became the subject of ICC’s jurisdiction based on referrals by the UNSC. In the case of Sudan, two suspects—Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, both of whom are commanders of a rebel faction in the Darfur region have already voluntarily subjected themselves to the ICC. A third rebel commander— Bahar Idriss Abu Garda also voluntarily submitted himself to the Court but the judges did not confirm charges against him. The Court’s biggest challenge in the Sudan situation is how to execute the arrest warrants against persons who are affiliated with the Sudanese government, including the country’s President, Omar al-Bashir. A major controversy in the Sudan situation was the timing of the Prosecutor’s announcement of an arrest warrant against President Al-Bashir. This decision led to discussions as to how the ICC could contribute to or undermine peace. Concerns have been expressed that the Court’s action in this regard had a negative impact on peace efforts and humanitarian services in the Darfur region. It also led to tensions between the ICC and the African Union as the latter instructed its member states not to cooperate with the ICC in the arrest of President Omar al-Bashir. According to the African Union, the Security Council refused to respond to its request for investigations to be deferred in the interest of peace in Darfur as provided for in Article 16 of the Rome Statute. While this issue remains a source of debate between the African Union, Security Council and the ICC , no guidelines have been tabled on what should be considered as being in the interest of peace and justice to warrant a deferral of an investigation by the Prosecutor of the Court.

The situation in Libya has also become very controversial after the UN Security Council referred the situation to the ICC. This followed efforts by revolutionary fighters to topple the regime of the late Muammar Gaddafi. The Prosecutor of the Court announced arrest warrants for Gaddafi, his son Saif and his intelligence chief, Abdullah al-Sanusi. Muammar Gaddafi was killed while the new regime in the country has insisted on prosecuting Saif Gaddafi and al-Sanusi in Libya instead of sending them to the ICC. ICC judges recently issued a decision ordering the Libyan authorities to hand al-Sanusi over to the Court.31 No such decision has been issued in the case Saif Gaddafi. Many have argued that al-Sanusi and Saif Gaddafi will not get fair trials in Libyan courts, with their respective defence teams arguing that they should be taken to The Hague. This brings in a new argument to the complementarity debate as to whether it is for the ICC to monitor defence rights or concerns in domestic proceedings. Reading the Rome Statute’s complementarity provision, it establishes that domestic proceedings will be rated as credible if they are not meant to shield the accused person, with no mention of whether the proceedings are fair to the accused.32 This has been a key argument advanced by lawyers working on behalf of the Libyan government. The Libyan situation has also led to a debate on whether foreign forces intervening in a country’s conflict must be held to account. Many have argued, and the previous prosecutor of the Court suggested, that it would be possible to investigate possible crimes committed by NATO forces in Libya in their efforts to assist revolutionary forces trying to topple the Ghadaffi regime. We can only wait and see whether the Prosecutor of the Court will ever investigate NATO forces.

There have been suggestions that the Sudan and Libyan situations have been the most debatable because of the subjects of the Court’s arrest warrants and the manner of their referrals —African heads of states referred by the UN Security Council. For some, especially few African heads of states, the ICC is a political and a neo-colonial tool that is meant to target only Africans. Many have pointed to the crisis in Syria as an example of how selective the ICC’s involvement in situations could be. It must be noted that accusations of such selectivity when it comes to situation selection has nothing to do with the ICC, rather, it has so much to do with the UN Security Council—a body made up of five veto wielding and ten non-veto states with responsibility to refer situations for states which are not parties to the Rome Statute system. Without such referral, the ICC has absolutely nothing it can do.

ICC (Non-African) Preliminary Examinations

Beyond Africa, the OTP is conducting preliminary examinations in other continents that may result in Situations and Cases at the Court. A fundamental objective for the OTP is to “… consider, as a matter of policy, the extent to which its preliminary examination activities can stimulate genuine national proceedings against those who appear to bear the greatest responsibility for the most serious crimes.”33 This puts states on notice that the ICC will intervene once jurisdiction is established if national measures are not forthcoming. Outside the African continent, this current analysis affects Afghanistan, Honduras, Republic of Korea, Colombia and Georgia as potential Situation countries.34 The most advanced analysis, and therefore likely involvement of the Court, relate to Colombia and Georgia where the OTP has already established that it has subject-matter jurisdiction.35 For these two countries, the main reason for non-intervention by the ICC so far is due to domestic investigations and/ or proceedings currently taken by state authorities.

The Situation in Colombia has been under preliminary examination since June 2004.36 Following Colombia’s ratification of the Rome Statute, the Court may exercise its jurisdiction over ICC crimes committed in the territory or by the nationals of Colombia since 1 November 2002 but its jurisdiction over war crimes is from 1 November 2009.37 However, Colombia has enacted legislation and carried out investigations and prosecutions that have led to various convictions and sentences of different factions and this process is on-going.38 For example, the OTP’s last report on preliminary examinations notes, amongst other proceedings, that “[a]ccording to the information available, a large number of FARC and ELN members, including senior leaders, have been the subject of national proceedings under the ordinary criminal justice system in Colombia.”39 The OTP continues to liaise with the Colombian authorities to monitor domestic efforts to ensure that those most responsible are brought to justice. This is distinct from the current African situations where no domestic action was taken or where actions taken fell short of addressing the most responsible for the specific crimes investigated by the OTP.

The OTP began the preliminary examination of the situation in Georgia on 14 August 2008 following its ratification of the Rome Statute, thereby giving the Court jurisdiction as of 1 December 2003. At issue, are the crimes committed during the August 2008 conflict between South Ossetian forces and the Georgian army, which led to the involvement of Russia. Both Georgia and Russia have since pursued seemingly relevant investigations into alleged crimes committed. However, there have been no prosecutions as both countries claim lack of cooperation by the other side and lack of access to the crime scene or immunity as a barrier. As both countries continue their interactions with the OTP, the Prosecutor’s decision to open a Situation dependent on “…seeking clarification as to whether the respective investigations have halted; whether any additional information remains to be provided to the Office; and whether the lack of cooperation identified as an obstacle both by the Russian and Georgian authorities may be overcome through enhanced mutual legal assistance between the two States.” Once the OTP has established that investigations are not continuing and no prosecutions, let alone prosecutions of the most responsible, are forthcoming then it would have to intervene unless it deems that it would not be in the interests of justice to proceed. This illustrates that genuine national measures serve the dual function of administering justice to victims by holding perpetrators accountable and keeping the ICC at bay. However any such situation is subject to review by the ICC as events unfold in the domestic arena.

Conclusion

The existential legitimacy of the Court and its expanding jurisdiction is a foregone conclusion. Through progressive ratification of the Rome Statute, the ICC has gained increasing acceptance that has solidified its guardianship of the international criminal justice regime. In fact, the adoption of a definition for the controversial crime of aggression in June 2010 that is pending implementation should be seen as a vote of confidence by the State Parties. Additionally, non-State Parties have expressed faith in the Court by supporting Security Council referrals or declaring an acceptance of its jurisdiction. Although many criticize Court’s financial expenditure, there is growing recognition that accountability for the most serious international crimes is linked to their future prevention and sustainable peace.

The ICC’s complementarity role in international justice demonstrates its indispensability. The Court’s focus on Africa in its first decade was not deliberate but it was justifiable and required. Through complementarity, the Court’s intervention has been imperative towards ending impunity as States have either been unable or unwilling to take national measures. It is the failure of African States that has led to ICC’s involvement. However, States should be applauded for recognizing this and taking remedial efforts through self-referrals. Yet States cannot merely delegate their responsibilities to the ICC without taking additional steps to combat impunity, such as implementing adequate legislation, investigating and prosecuting low and mid-level perpetrators, and exercising universal jurisdiction. A very positive move has been steps recently taken by the African Union and Senegal in respect of the upcoming prosecution of the former Chadian President, Hissène Habré.

Many who criticize the ICC for targeting Africans simultaneously denounce it for not prosecuting more cases or pursuing broader charges in the relevant African Situations. Indeed, the Court’s intervention is absolutely essential in other parts of the globe. The OTP should address crimes under its jurisdiction where those States have failed to hold perpetrators accountable, thereby activating complementarity. Nevertheless, regardless of whether the ICC opens a Situation outside of Africa, the need to address the perception of alleged African bias is vital to its success in Africa. The OTP cannot afford to isolate the very people it seeks to help and who will assist in its mandate. The Court needs more substantive engagement with all levels of African society, from leaders to civil society to the general populace, in order to effectively investigate and prosecute crimes as well as contribute to their prevention. For example, the OTP should push for, rather than simply not oppose or generally support, conducting entire trials or key parts of the trials in locations proximate to affected victims.

Considering also that the Court’s location is distant from crime scenes, it must ensure a more constructive engagement with local civil society in order to reach and impact affected communities. Such engagement includes greater use of civil society as intermediaries in reaching out to victims’ communities through outreach. A major success of the Special Court for Sierra Leone, a hybrid tribunal established to investigate and prosecute for crimes committed during Sierra Leone’s bloody civil conflict, was the establishment and implementation of an effective outreach program. One reason responsible for such success was the Court’s use of and engagement with local civil society to reach various communities around the country. This is something that the ICC could learn from. It is only through such greater access by victims and potential perpetrators alike, that ICC trials can have a more meaningful impact.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Web page, ICC, Situations and Cases, available online (last visited on March 4, 2013).

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute] at Preamble.

  3. 3.

    Press Release, ICC, Côte d’Ivoire ratifies the Rome Statute, ICC-ASP-20130218-PR873, Feb. 18, 2013, available online (last visited on March 4, 2013).

  4. 4.

    Rome Statute, Articles 12, 13.

  5. 5.

    Id.

  6. 6.

    The Court will only have jurisdiction over the crime of aggression in 2017 after the State Parties activate this provision.

  7. 7.

    Rome Statute, Articles 5, 11.

  8. 8.

    Either the UN Security Council or non-State Party declaration.

  9. 9.

    ICC OTP, Report on Preliminary Examination Activities 2012, Nov. 2012, pages 3-4, available online (last visited on March 4, 2013).

  10. 10.

    Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II. ICC, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, May 30, 2011, ¶1 at 3, available online.

  11. 11.

    ICC OTP, supra note 9 at 4.

  12. 12.

    Press Release, UN Security Council, In Swift, Decisive Action, Security Council Imposes Tough Measures On Libyan Regime, Adopting Resolution 1970 in Wake of Crackdown on Protesters, SC/10187/Rev.1, Feb. 26, 2011, available online (last visited on February 27, 2013).

  13. 13.

    Press Release, UN Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court, SC/8351, Mar. 31, 2005, available online (last visited on February 27, 2013).

  14. 14.

    Côte d’Ivoire subsequently became a State Party on February 15, 2013, see supra note 3.

  15. 15.

    David Smith, New chief prosecutor defends international criminal court, The Guardian, May 23, 2012, available online (last visited on February 27, 2013); and Fatou Bensouda, Law as a tool for world peace and security, Open Society Initiative for Southern Africa, Jun. 4, 2012, available online (last visited on February 27, 2013).

  16. 16.

    Rome Statute, supra at 2.

  17. 17.

    ICC-NGO roundtable meeting that was held in The Hague, May 29, 2012.

  18. 18.

    Press Release, ICC, President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC, ICC-20040129-44, Jan. 29, 2004, available online.

  19. 19.

    Although the LRA leader Joseph Kony refused to sign the agreement.

  20. 20.

    OTP personnel presentation and ICC-NGO roundtable meeting in The Hague, May 29, 2012.

  21. 21.

    Web page, ICC, Situation in the Central African Republic, ICC-01/05, available online (last visited on March 4, 2013).

  22. 22.

    Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled “Decision on the Admissibility and Abuse of Process Challenges”, No. ICC-01/05-01/08 OA 3, Oct. 19, 2010, available online.

  23. 24.

    CapitalFM News, PEV victims file case for compensation, Feb. 22, 2013, available online.

  24. 25.

    Web page, ICC, Situation in the Republic of Côte d’Ivoire, ICC-02/11, available online (last visited on March 4, 2013).

  25. 26.

    In a recent report, Amnesty International accused the Ivorian Government of pursuing victor’s justice. Amnesty International, Côte d’Ivoire: La Loi des Vainqueurs, (2013), French language original, available online (last visited on March 4, 2013).

  26. 27.

    Comments made by former Prosecutor of the ICC, Luis Moreno-Ocampo, at the bi-annual ICC-NGO meeting in The Hague, May 29 2012.

  27. 28.

    Web page, ICC, Situation in the Republic of Mali, ICC-01/12, available online (last visited on March 4, 2013).

  28. 29.

    Web page, ICC, Situation in Darfur, Sudan, ICC-02/05, available online (last visited on March 4, 2013).

  29. 30.

    Web page, ICC, Situation in Libya, ICC-01/11, available online (last visited on March 4, 2013).

  30. 31.

    See Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Urgent Application on behalf of Abdullah Al-Senussi for Pre-Trial Chamber to order the Libyan Authorities to comply with their obligations and the orders of the ICC, ICC-01/11-01/11-248, Jan. 9, 2013, available online.

  31. 32.

    See Article 17(2)(a) of the Rome Statute.

  32. 33.

    ICC OTP, supra note 9 at 5.

  33. 34.

    Id.

  34. 35.

    Id. at 6.

  35. 36.

    Id. at 23.

  36. 37.

    See Rome Statute Article 124, which allows a State to delay jurisdiction for war crimes for a period of seven years after entry into force of the Rome Statute for that State. See id.

  37. 38.

    ICC OTP, supra note 9 at 25-28.

  38. 39.

    Id. at 26.