The Africa Question — Comments

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Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”

I. Introduction

The International Criminal Court (ICC) was established with the hope that it would pursue those persons responsible “for the most serious crimes of international concern.”1 Since the Rome Statute’s entry into force in July 2002, the ICC has opened situations in eight countries, all in Africa, leading some to argue that the Court has an African bias.2 A common defense to this critique has been that the ICC only goes after the “most serious” situations, and those situations all happen to be in Africa. By attempting to quantify the gravest situations since 2003, this comment intends to explore this defense to see whether the ICC is truly pursuing the worst crimes within its jurisdiction. If there are conflicts outside of Africa within the jurisdiction of the Court that are graver than the current eight situations, then maybe the ICC is unfairly targeting Africa.

The ICC has developed a test to decide whether a situation is grave enough to justify opening a formal investigation. The assessment “includes both quantitative and qualitative considerations based on the prevailing facts and circumstances.”3 It particularly looks at the scale of the crimes, including the number of direct and indirect victims; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes.4 “A key consideration is the number of victims of particularly serious crimes, such as willful killing or rape.”5

For most conflicts between 2003 and 2011, I have compiled estimates of the number of civilians who have been intentionally targeted, battle related deaths in armed conflict, and internally displaced persons (IDPs). By using these metrics as proxies for the ICC’s gravity assessment, we can see which conflicts in this timespan have been the most severe. After taking into account the jurisdictional realities of the ICC, we find that the only non-African country that the Court can pursue in which the situation is at least as grave as that in the current ICC investigations is Afghanistan. The fact that Afghanistan is currently under preliminary examination by the Court suggests that the ICC does not have an African bias.

Part II discusses the methodology used to gather these numbers as well as certain assumptions that are made. Part III goes over the results of the research, including general information about each conflict. Part IV discusses the jurisdictional hurdles for certain conflicts and explores which cases the ICC can actually pursue. Part V concludes.

II. Methodology

The first thing to note is that the ICC has jurisdiction over crimes (namely genocide, crimes against humanity, and war crimes)6, not situations with the most death or IDPs. Thus, an ideal study would find the highest prevalence of these crimes in each country to analyze the situation. However, no such database exists that reliably estimates these crimes per country. A major assumption I must make is that those places with the highest casualties and displaced persons are also the most likely to have crimes within the jurisdiction of the Court7 in proportionate levels.8 It is fair to assume that those countries with the highest casualties from the intentional targeting of civilians are most likely to have ICC crimes. It is never lawful to intentionally target civilians. However, as discussed below, such figures are hard to estimate, and if I only looked at this metric, major conflicts characterized by the occurrence of atrocities would be excluded from the study. Thus, I include battle related deaths and IDPs in order to include the most devastating conflicts. While casualties in war can occur without crimes happening, I still assume that improprieties must occur when there is large-scale fighting.

A. Uppsala Conflict Data Program (UCDP) Datasets

Finding reliable figures for any metric of conflict is very difficult.9 Different reporting organizations can have agendas that lead them either to inflate or deflate the estimate. Often, areas of conflict have very little open access and are too dangerous for organizations to obtain the information. Even neutral organizations with access to information can come up with very diverse estimates for the same metric because of different methodologies and standards for source verification. Because of this, I felt it important to use a single, comprehensive database, implementing the same methodology for all conflicts, in order to have the most consistent results.

The UCDP datasets are the most comprehensive set of information on armed conflict that I could find.10 The three datasets I used compiled yearly figures on deaths from 1989 to 2011 while using the same high standard to verify each number. These datasets rely on numerous public sources, including news articles, journals, reports by NGOs, and government documents.11 “Each source is judged according to the context in which it was published,” and for instances of biased sources or unreliable information, the events are only included in the high estimate, which I excluded from my study.12 Because of the rigorous standards UCDP employs, the figures are sometimes well below what is often reported. “[I]t is possible that there are more fatalities than the UCDP high estimate, but it is very unlikely that there [are] fewer than the UCDP best estimate.”13

Because I’m using the same source for the same type of data, and that source employs the same methodology across the board, I assume that the UCDP datasets are internally consistent. That is, even if the estimates for the conflicts are well below the figures reflecting the reality of the situations, relative to each other, the conflicts are in the proper ranking for gravity.14

1. Intentionally Targeting Civilians

`To get the figures for deliberate civilian casualties, I used the UCDP One-sided Violence Dataset.15 According to UCDP, “One-sided violence is the use of armed force by the government of a state or by a formally organized group against civilians which results in at least 25 deaths. Extrajudicial killings in custody are excluded.”16 A formally organized group means “any non-governmental group of people having announced a name for their group and using armed force.”17 I used the “best estimate” from the database, which aggregates the “most reliable numbers.”18 Because it is often difficult to determine whether an attack was intentionally targeting a civilian, these figures tend to underestimate the situation even more so than the rest of UCDP’s figures.

2. Battle-Related Deaths

The total for battle-related deaths came from adding the figures together from two datasets: the UCDP Battle-Related Deaths Dataset19 and the UCDP Non-State Conflict Dataset20. Both datasets compile the number of “battle-related deaths each year” when armed force is being used, the difference being that for the UCDP Battle-Related Deaths Dataset, a government is a party to the conflict21 whereas for the UCDP Non-State Conflict Dataset, neither party to the conflict is a government22. Battle-related deaths are defined as those deaths between the parties that can be “directly related to combat.”23 “The target for the attacks is either the military forces or representatives for the parties.”24 Civilian deaths are only included if classified as collateral damage. Thus, there should be no overlap in figures between the three datasets. As with the UCDP One-sided Violence Dataset, I used the “best estimate,” and there must be at least 25 deaths in a year for the number to be recorded.

B. Internally Displaced Persons

For IDPs, I was required to use two sources, as neither one contained yearly data for each country during the timespan analyzed. Whenever possible, I used the data from the United Nations High Commissioner for Refugees Statistical Online Population Database (UNHCR Database).25 The UNHCR is a very reputable source that is good at documenting the situations with which they are involved. Their method includes gathering information from three main providers, “governmental agencies, UNHCR field offices and NGOs. Data are compiled or collected using mainly registers, surveys, registration processes or censuses.”26 They define IDPs as “people… who have been forced to leave their homes…, in particular as a result of, or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural—or human-made disasters, and who have not crossed an international border.”27

The supplemental source I used was from the Internal Displacement Monitoring Centre (IDMC).28 The UNHCR suggests using this source for global IDP figures when they lack the information.29 The IDMC uses the same IDP definition as UNHCR.30

I generally used the UNHCR Database, only supplementing the IDMC data when UNHCR was missing a figure or the figure seemed anomalous. For each country, I chose the best high IDP estimate within the time period analyzed. I only collected IDP figures for those countries with an armed conflict occurring between 2003 and 2011.

C. Timespans

Because the Rome Statute didn’t go into effect until July 2002, I start looking at each conflict’s figures in 2003.31 The UCDP database had data for every conflict up until 2011. Thus, the maximum timeframe for any one conflict is 2003 to 2011. Unfortunately, this means that certain recent events are outside the scope of this analysis—in particular, the situation in Mali.32

For the seven remaining situations under ICC investigation, I used the timeframes that the ICC used before deciding to open the investigation. For example, the situation in the Democratic Republic of the Congo (DRC) was opened up for investigation in June 2004. Even though many atrocities occurred in the DRC after this date, I analyze only between 2003 and 2004.33 Because I’m trying to analyze the conditions which spark an investigation at the ICC, it would not make sense to include data after their decision to investigate was made.

For the remaining conflicts, I try my best to limit the timespan to the relevant conflict dates. Thus, I analyzed the Sri Lankan Civil War between 2003 and 2009 as the Tamil Tigers were defeated in May 2009.34 Similarly, while Mexico has been plagued with drug violence for quite some time, I analyzed only between 2007 and 2011 because President Calderón initiated Operation Michoacán in December 2006.35 For the initial analysis, I disregard the dates that the Rome Statute entered into force in these countries.36 However, I later factor this in when distilling the results in Part IV.

D. Method of Analysis

From all of this information, I have generated five metrics to look at: total number of intentionally killed civilians, number of intentionally killed civilians per year, total battle-related deaths, number of battle-related deaths per year, and number of IDPs per country. Each metric paints a slightly different picture of the gravity of a conflict.

Rather than trying to develop some comprehensive formula to meld all of these metrics into a single gravity-representing figure in order to rank each conflict, I have decided to analyze the worst in each category. Thus, I present five lists, each of which contains the worst conflicts for that metric. For each list, I removed all countries that rank lower than the lowest ICC investigation, after excluding Mali and the Central African Republic (CAR).37 The idea is to find countries with graver conflicts than those in a current investigation. With the remaining list, I removed those countries that fall outside of the jurisdiction of the Court, either because the country is not a state party to the Rome Statute or because of complementarity concerns. I then remove those countries that are in Africa. The remaining list should be non-African countries within the jurisdiction of the Court in which the situations are graver than at least one situation being investigated by the ICC judged by a certain metric. If any country is on this final list, it will provide evidence that the ICC is unfairly targeting Africa.

III. Results

As mentioned earlier, the casualty figures present an internally consistent list of where countries rank in relation to each other. Because all that matters for this exercise is how countries rank with respect to one another, I provide only the rankings here, leaving the quantitative figures in the appendix.38 Also, because the rankings are made based on yearly death and IDP figures, important information about certain conflicts is often left out. Following the results, I include small sections for particular conflicts in order to clarify why they appear where they do on the lists.

Ranked Order for Most Devastating Conflicts
Intentionally Targeted Civilians Battle Related Deaths Internally Displaced Persons
Total Deaths per Year Total Deaths per Year
Countries that are under current ICC investigations.

Countries that are (or have been) under preliminary ICC investigation.

*I exclude CAR and Mali from the final evaluation.

**I treat Palestine’s conflict as lasting for one year for the purposes of Battle-Related Deaths per Year.
1 Sudan Syria Afghanistan Afghanistan Colombia
2 Iraq Sudan Sri Lanka Sri Lanka DRC
3 DRC DRC Pakistan Pakistan Iraq
4 India Liberia Iraq Sudan Sudan
5 Syria Uganda Somalia Iraq Uganda
6 Pakistan Iraq India Libya Somalia
7 Thailand Togo Mexico Liberia Pakistan
8 Uganda India Sudan Somalia Turkey
9 Liberia Nepal Nigeria Mexico India
10 Nepal Zimbabwe Colombia Palestine** Indonesia
11 Ethiopia Pakistan Nepal Uganda Myanmar
12 Afghanistan Thailand Russia India Liberia
13 Myanmar Burundi Philippines Nepal Côte d’Ivoire
14 Burundi Côte d’Ivoire Algeria Syria Sri Lanka
15 Sri Lanka Guinea Chad DRC Afghanistan
16 Colombia Libya Turkey Nigeria Syria
17 Kenya Indonesia Ethiopia Colombia Kenya
18 Nigeria Ethiopia Uganda Georgia Russia
19 Togo Kenya Libya Burundi Yemen
20 Indonesia Afghanistan Liberia Russia Ethiopia
21 Côte d’Ivoire Sri Lanka Burundi Philippines Georgia
22 Mexico Myanmar DRC Chad Nigeria
23 Russia Mexico Myanmar Indonesia Palestine
24 Chad Colombia Indonesia Yemen Algeria
25 Zimbabwe Nigeria Yemen Algeria CAR
26 Philippines Yemen Palestine Turkey Chad
27 Somalia Chad Thailand Ethiopia Burundi
28 Algeria Russia Kenya Myanmar Philippines
29 Guinea CAR* Syria Kenya Nepal
30 Libya Philippines Georgia Thailand Mexico
31 CAR* Somalia Côte d’Ivoire Côte d’Ivoire Libya
32 Yemen Algeria Honduras Honduras Togo
33 Turkey Palestine CAR* CAR* Zimbabwe
34 Palestine Georgia Togo Togo Thailand
35 Georgia Turkey Zimbabwe Zimbabwe Guinea
36 Honduras Honduras Guinea Guinea Honduras
37 South Korea South Korea South Korea South Korea South Korea
38 Mali* Mali* Mali* Mali* Mali*
39 Venezuela Venezuela Venezuela Venezuela Venezuela

A. Notes on Countries Currently Under ICC Investigation

1. DRC

The DRC self-referred the situation to the ICC in March 2004 to cover those crimes occurring on its territory since the Rome Statute went into effect in July 2002.39 The Office of the Prosecutor (OTP) officially opened the investigation in June 2004.40 Thus, even though severe atrocities took place before 2002 and after 2004, this list does not reflect those data. In 2004, the ICC reported that according to its sources, “thousands of deaths by mass murder and summary execution [occurred] in the DRC since 2002. The reports allege a pattern of rape, torture, forced displacement and the illegal use of child soldiers.”41

2.Uganda

Uganda self-referred the situation in December 2003, and the OTP opened its investigation in July 2004.42 Of particular interest to the OTP was a February 2004 massacre committed by the LRA at the Barlonyo IDP camp in which over 200 civilians were killed.43

3. Darfur, Sudan

In March 2005, the UN Security Council (UNSC) passed Resolution 1593, referring the situation in Darfur for crimes that had occurred since July 2002.44 The referral was largely in response to a UNSC requested report on Darfur which outlined the crimes happening in the region.45 According to the report, within a few years prior, those in Darfur had “been living a nightmare of violence and abuse that has stripped them of the very little they had. Thousands were killed, women were raped, villages were burned, homes were destroyed and belongings were looted. About 1.8 million were forcibly displaced and became refugees or internally displaced persons.”46 The OTP formally opened its investigation in June 2005.47

4. Central African Republic (CAR)

The CAR self-referred its situation in December 2004, and the OTP formally opened its investigation in May 2007.48 The “peak of violence and criminality occurred in 2002 and 2003. Civilians were killed and raped; and homes and stores were looted.”49 This situation was highly unusual in that the “allegations of sexual crimes far outnumber alleged killings.”50 Because my analysis is from 2003 to 2007 and is largely based on casualties, the CAR appears near the bottom of each metric analyzed despite its extremely grave nature. Thus, I exclude this situation from the gravity comparison for any casualty-based category.

5. Kenya

Using his proprio motu powers, then Chief Prosecutor Luis Moreno-Ocampo requested in November 2009 to open an investigation in Kenya51, getting authorization from the Pre-Trial Chamber (PTC) in March 201052. Despite requesting to investigate only the post-election violence of December 2007 to February 2008, the PTC authorized an investigation for crimes committed between June 2005 and November 2009.53 Thus, despite the majority of violence occurring in a three-month span, some 1200 murders and 900 documented acts of rape or sexual violence54, I analyze the figures over the course of five years.

6. Libya

The OTP opened an official investigation into the Libyan violence in March 2011 after the UNSC referred the situation with Resolution 1970 in February 2011.55 According to the OTP’s first report to the UNSC, “500 to 700 persons died, only in February.”56

7. Côte d’Ivoire

Moreno-Ocampo’s second use of his proprio motu power was in June 2011 when he requested the opening of an investigation into the post-election violence of Côte d’Ivoire from November 2010 to May 2011.57 According to the PTC authorization of October 2011, in that seven-month span, “between 700 and 1048 civilians were killed” and “around one million people” were displaced.58 The figures from UCDP indicate 378 civilian deaths in all of 2011.

8. Mali

Mali’s information is excluded from the study because the relevant events took place after 2011. Mali self-referred the situation in July 2012, and the OTP opened its investigation in January 2013.59

B. Notes on Countries that Are or Have Been Under Preliminary Examination

1. Afghanistan

Afghanistan became a state party to the Rome Statute in February 2003.60 The OTP’s December 2011 Report on Preliminary Examination activities (Prelim Report) acknowledged several potential crimes, including torture, attacks on protected objects, and the recruitment of child soldiers.61 The report also cited an estimated 10,000 civilian casualties between 2007 and 2011.62 It is unclear why an investigation has not been opened yet, but it seems like the OTP is having a hard time verifying the claims inside of the country.63

2. Colombia

The ICC has had jurisdiction over crimes against humanity in Colombia since November 2002 and war crimes since November 2009.64 The country has been under preliminary examination since June 2004.65 Grave atrocities have been occurring in Colombia for decades, and the OTP recognizes that the situation in the country remains one of the worst in the world. However, due to efforts by the Colombian government to hold perpetrators accountable, the OTP has yet to open an investigation due to complementarity concerns.66

3. Nigeria

Nigeria has been a state party since July 2002.67 The Prelim Report acknowledges several potential crimes: thousands of killings as well as cases of rape and abductions.68 It is unclear why an investigation has not been opened, but the OTP mentions that the government has been willing to investigate certain crimes.69

4. Georgia

Despite having the Rome Statute in effect since 2003, my analysis, as well as the OTP’s, of the case in Georgia only involves the August 2008 conflict in South Ossetia.70 Because both Russia and Georgia seem willing to investigate the situation, the OTP has yet to initiate an investigate due to complementarity concerns.71

5. Guinea

The examination in Guinea deals with crimes committed on a single day known as the “28 September massacre” at a stadium in Conakry in which “at least 156 persons were killed or disappeared, and at least 109 women were victims of rape and other forms of sexual violence.”72 Guinean authorities have expressed that they are “willing and able” to investigate the situation, so the OTP has not opened an investigation due to complementarity concerns.73

6. Honduras

The analysis of Honduras deals with crimes committed between 2009 and 2010 after a military coup. According to the Prelim Report, thousands of people were unlawfully arrested, 20 civilians were murdered, and there were a few cases of torture and rape.74

7. South Korea

The preliminary examination of South Korea deals with two incidents in 2010 in which 4 people and 46 people were killed, respectively.75 The UCDP database had no figures for South Korea in this timeframe.

8. Palestine

Palestine has been trying to become a state party to the Rome Statute for some time, but the ICC has been reluctant to allow this due to Palestine’s debated status as a “state.”76 It appears that if the OTP were to investigate anything, it would look at Operation Cast Lead, which lasted from December 2008 to January 2009.77 Because of this, and because of the fact that the conflict lasted just over three weeks, I only analyze the figures in the area from 2008 to 2009 and consider this to be one year for the purposes of deaths per year.

9. Iraq

As noted above in the results, Iraq has been one of the worst conflicts in the world measured by any metric. In February 2006, the OTP issued a decision regarding Iraq, deciding not to investigate due to the small gravity of the crimes after taking into account jurisdictional hurdles.78 Despite this early refusal, I analyze the Iraq numbers until 2011.

10. Venezuela

Along with Mali and South Korea, the UCDP database has no figures for this country between 2003 and 2011, hence these three countries’ being at the bottom of each list. A February 2006 decision by the OTP outlines some possible crimes in Venezuela within the timeframe but refuses to initiate any investigation, in part because the complaints were largely contradictory.79

C. Notes on Select Remaining Countries

1. Syria

It is worth pointing out that the bulk of the fighting in the Syrian Civil War has occurred after 2011. Thus, the situation is really graver than these lists reflect.

2. Mexico

The UCDP database calls out a specific flaw with its own methodology with regard to Mexico. “The UCDP is aware that the figures given for the war between the cartels in Mexico are very low. Unlike much organized violence in the world, however, the fighting between cartels in Mexico is not overt in the sense that none of the actors wish to claim ‘credit’;” thus, the UCDP acknowledges that “such violence is extremely difficult to code with the UCDP’s method.”80 In other words, the gravity of the Mexico situation is really much larger than it appears in my chart.

IV. Figuring Out Which Cases the ICC Can Pursue

After excluding Mali and CAR81 and all conflicts below the lowest ranking remaining ICC investigation in each category, we are left with 28 countries that are not currently being investigated. These are:

Preliminary Examination Countries Unexamined Countries
Afghanistan
Colombia
Georgia
Guinea
Iraq
Nigeria
Palestine
Algeria
Burundi
Chad
Ethiopia
India
Indonesia
Liberia
Mexico
Myanmar
Nepal
Pakistan
Philippines
Russia
Somalia
Sri Lanka
Syria
Thailand
Togo
Turkey
Yemen
Zimbabwe

A. Eliminating Non-States Parties During the Time of Conflict

The majority of these countries are not states parties to the Rome Statute. Ethiopia, India, Indonesia, Iraq, Myanmar, Nepal, Pakistan, Palestine82, Somalia, Sri Lanka, Togo, and Turkey have neither signed nor ratified the treaty.83 While Algeria, Russia, Syria, Thailand, Yemen, and Zimbabwe have signed the Rome Statute, they have never ratified it.

Additionally, while Liberia ratified the treaty in September 2004, the conflict analyzed was only for 2003; thus, the treaty wasn’t in force during the appropriate time. Similarly, the Philippines ratified at the very end of 2011, meaning that that year shouldn’t be considered. Because the study only lasts up until 2011, the Philippines will also be excluded. Burundi ratified the Statute at the very end of 2004. Because I analyzed 2003 to 2005, the figures for Burundi are actually much lower than reported, but the country is still able to make the list. Similarly, Chad’s analyzed timespan was 2005 to 2010, but its ratification was at the end of 2006. Thus, Chad’s figures are also lower than reported.

After taking this into account, we are left with eight countries:

Preliminary Examination Countries Unexamined Countries
Afghanistan
Colombia
Georgia
Guinea
Nigeria
Burundi
Chad
Mexico

B. Eliminating Those Countries Likely to Have Complementarity Issues

Examining which countries should be excluded because of complementarity issues is a complicated exercise which could be the subject of several independent comments. As for the countries currently under preliminary examination, the OTP has revealed which ones are not being investigated due to complementarity concerns. These are Colombia, Georgia, and Guinea.84 Because Burundi and Chad are African countries that will be eliminated from the list in the next section, I will refrain from analyzing their claims of complementarity.

There is surprisingly little literature on Mexico and the ICC given the degree of violence plaguing the country.85 In October 2011, human rights activists in Mexico, led by Netzai Sandoval, filed a complaint with the ICC requesting an investigation into crimes committed by President Calderón as well a major drug lord in the conflict.86 A Human Rights Watch report in November of that year also outlines particular crimes, most notably torture, committed by the government.87 The report notes that violations are not being adequately investigated nor prosecuted, in part due to the use of the military rather than civilian jurisdiction. The “military courts lack the impartiality… to judge their own,” and out of “1,615 investigations from 2007 to April 2011… [n]ot a single soldier has been convicted.”88

However, in a November 2011 press release by the Mexican Foreign Ministry, the government reaffirmed its obligations “to prevent, investigate, punish and redress violations” of fundamental human rights.89 It also remarked that using the ICC to deal with Mexico’s problems is the “wrong way” to proceed. “The jurisdiction of the ICC is complementary to national criminal jurisdictions. It justifies the action of the Court only when a state is unable or unwilling to bring criminal penalty for certain crimes listed in the Rome Statute. Neither of these two situations applies to the case.”90

It is apparent that the Mexican government would prefer to deal with the situation domestically and would most likely challenge the ICC’s jurisdiction. Even if Mexico is currently failing in its duty to hold genuine prosecutions for all those responsible for ICC crimes, it is quite possible that it will increase its efforts once faced with a possibility of ICC intervention. Because of the government’s express desire to exclude the ICC, I exclude the situation based on complementarity concerns.

Therefore, after taking into account complementarity issues, we are left with four countries:

Preliminary Examination Countries Unexamined Countries
Afghanistan
Nigeria
Burundi
Chad

C. Eliminating Those Countries in Africa

Because the point of this comment is to find out whether the ICC is unfairly targeting African countries, it only makes sense to see which situations outside of Africa are graver than those considered in the current investigations. Therefore, after removing all African countries from the remaining list, we are left with a single country: Afghanistan.

D. What is Left?

After all is said and done, the only non-African conflict within the jurisdiction of the Court that is graver than at least one current ICC investigation based on the metrics analyzed is Afghanistan. In fact, according to the UCDP database, between 2003 and 2011, Afghanistan had the highest total battle-related deaths absolutely and on a yearly basis compared to the other conflicts. As noted above, Afghanistan has been under preliminary examination by the ICC, but a decision to open an official investigation has yet to be made.91 Because the ICC is at least examining the situation, it hardly lends support to the claim that the Court has an African bias.

V. Conclusion

Despite the fact that several very grave conflicts outside of Africa have occurred sometime between 2003 and 2011, once taking into account the jurisdictional obstacles of the ICC, only one country remains: Afghanistan. The fact that Afghanistan has been under preliminary examination by the ICC suggests that the Court is not biased toward Africa. The reality of the situation is that Africa has been home to some of the worst atrocities over the last decade, and those countries where these atrocities have taken place have typically accepted the jurisdiction of the Court.

Appendix

Appendix A—Quantitative Values for Variables Used to Assess Conflict Devastation by Country
Country Dates Intentionally Targeted Civilians Battle Related Deaths Internally Displaced Persons
Total Deaths per Year Total Deaths per Year
Countries that are under current ICC investigations.

Countries that are (or have been) under preliminary ICC investigation.

*I exclude CAR and Mali from the final evaluation.

**I treat Palestine’s conflict as lasting for one year for the purposes of Battle-Related Deaths per Year.
1 Sudan 2003-05 7352 2450.7 6206 2068.7 1,650,000
2 Iraq 2003-11 6157 684.1 17,428 1936.4 2,647,251
3 DRC 2003-04 3573 1786.5 1682 841 3,044,000
4 India 2003-11 3412 379.1 10,813 1201.4 650,000
5 Syria 2011 2924 2924 872 872 430,000
6 Pakistan 2004-11 1833 229.1 19,834 2479.3 1,230,000
7 Thailand 2004-11 1745 218.1 1257 157.1  
8 Uganda 2003-04 1592 796 2574 1287 1,600,000
9 Liberia 2003 1494 1494 1746 1746 531,616
10 Nepal 2003-06 1370 342.5 4782 1195.5 150,000
11 Ethiopia 2003-11 1056 117.3 2677 297.4 300,000
12 Afghanistan 2003-11 785 87.2 34,971 3885.7 447,547
13 Myanmar 2003-11 754 83.8 1681 186.8 600,000
14 Burundi 2003-05 609 203 1741 580.3 170,000
15 Sri Lanka 2003-09 597 85.3 20,750 2964.3 504,800
16 Colombia 2003-11 524 58.2 5771 641.2 3,888,309
17 Kenya 2005-09 473 94.6 925 185 404,000
18 Nigeria 2003-11 445 49.4 6023 669.2 200,000
19 Togo 2005 436 436   3000
20 Indonesia 2003-05 434 144.7 1429 476.3 600,000
21 Côte d’Ivoire 2010-11 378 189 68 34 514,515
22 Mexico 2007-11 354 70.8 6844 1368.8 120,000
23 Russia 2003-11 306 34 4611 512.3 368,220
24 Chad 2005-10 267 44.5 2922 487 178,918
25 Zimbabwe 2008 253 253  
26 Philippines 2003-11 245 27.2 4507 500.8 159,465
27 Somalia 2003-11 211 23.4 12,611 1401.2 1,550,000
28 Algeria 2003-11 205 22.8 3529 392.1 200,000
29 Guinea 2009 160 160  
30 Libya 2011 152 152 1928 1928 93,565
31 CAR* 2003-07 148 29.6 45 9 197,000
32 Yemen 2009-11 142 47.3 1404 468 347,295
33 Turkey 2003-11   2859 317.7 1,000,000
34 Palestine 2008-09**   1347 1347 200,000
35 Georgia 2008   621 621 243,862
36 Honduras 2009-10   49 24.5  
37 Korea 2010  
38 Mali* 2012  
39 Venezuela 2003-11  

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

  1. 1.

    Rome Statute of the International Criminal Court, Article 1, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], (emphasis added).

  2. 2.

    See e.g., Richard Lough, African Union Accuses ICC Prosecutor of Bias, Reuters (Jan. 30, 2011, 3:59 AM EST), available online.

  3. 3.

    ICC, Draft Policy Paper on Preliminary Examinations, ¶ 70 (Oct. 4, 2011), available online.

  4. 4.

    Id.

  5. 5.

    ICC, OTP Response to Communications Received Concerning Iraq, 8-9 (Feb. 9, 2006), available online [hereinafter cited as Iraq Decision].

  6. 6.

    Rome Statute, supra note 1, art. 5.

  7. 7.

    From here on out, I will refer to “crimes within the jurisdiction of the Court” as “ICC crimes”.

  8. 8.

    I was unable to find databases that provided estimates for other major crimes such as rape, cases of torture, or use of child soldiers.

  9. 9.

    See e.g., Bethany Lacina and Nils Petter Gleditsch, Monitoring Trends in Global Combat: A New Dataset of Battle Deaths, 21 European J. Population 145, 146-47 (2005), available online, (describing difficulties in obtaining accurate conflict data).

  10. 10.

    UCDP Data, available online (last visited Mar. 3, 2013).

  11. 11.

    UCDP Battle-Related Deaths Dataset v.5-2012b Codebook, Uppsala Conflict Data Program, available online [hereinafter cited as BR Death Codebook].

  12. 12.

    Id.

  13. 13.

    Id. (emphasis added).

  14. 14.

    It should not matter much for my purposes if the list is not internally consistent. I examine whether each country on the list is within the jurisdiction of the Court, and only Afghanistan remains. Thus, in the end, there is no need for a close examination about whether a country’s situation is graver than another’s.

  15. 15.

    UCDP One-sided Violence Dataset v.1.4-2012, Uppsala Conflict Data Program, available online. It appears that this dataset was largely a result of the research done in Kristine Eck and Lisa Hultman, One-Sided Violence Against Civilians in War: Insights from New Fatality Data, 44 J. Peace Res. 233 (2007).

  16. 16.

    UCDP One-sided Violence Dataset, Id.

  17. 17.

    Id.

  18. 18.

    Id.

  19. 19.

    BR Death Codebook, supra note 11.

  20. 20.

    UCDP Non-State Conflict Dataset v.2.4-2012, Uppsala Conflict Data Program, available online. It appears that this dataset was largely a result of the research done in Ralph Sundberg, Kristine Eck, and Joakim Kreutz, Introducing the UCDP Non-State Conflict Dataset, 49 J. Peace Res. 351 (2012).

  21. 21.

    BR Death Codebook, supra note 11.

  22. 22.

    UCDP Non-State Conflict Dataset, supra note 20.

  23. 23.

    BR Death Codebook, supra note 11 (emphasis added). Importantly, this excludes indirect deaths (which are included in war-related deaths).

  24. 24.

    Id.

  25. 25.

    UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), Data extracted: January 3, 2013, available online.

  26. 26.

    UNHCR Statistical Online Population Database: Sources, Methods and Data Considerations, UNHCR (Jan. 1, 2007), available online [hereinafter cited as UNHCR Methods].

  27. 27.

    Id.

  28. 28.

    Internal Displacement Caused by Conflict and Violence, IDMC, available online (last visited Mar. 3, 2013).

  29. 29.

    UNHCR Methods, supra note 26.

  30. 30.

    The Definition of an Internally Displaced Person (IDP), IDMC, available online (last visited Mar. 3, 2013).

  31. 31.

    I figured it would be inappropriate to use yearly figures for 2002 in case the incidents occurred before July.

  32. 32.

    Also, certain “Arab Spring” conflicts are outside of the range.

  33. 33.

    The ICC looked for crimes between July 2002 and June 2004, but, as noted earlier, I am not including 2002 data. However, I am including the whole of 2004.

  34. 34.

    See Sri Lanka’s Tamil Tigers ‘Defeated’, Al-Jazeera (May 17, 2009, 4:21 GMT), available online.

  35. 35.

    See Jo Tuckman, Mexico Drug War Continues to Rage In Region Where President Fired First Salvo, Guardian (Nov. 30, 2012, 10:58 EST), available online.

  36. 36.

    I do this, in part, because the UNSC could potentially refer the situation for dates before a State’s ratification.

  37. 37.

    It is inappropriate to analyze these two countries because Mali has no figures for the timespan analyzed and the CAR is a unique situation because its gravity was determined more by sexual violence than by deaths. See Parts III(A)(4) & (8), supra. I include the CAR for the IDP list.

  38. 38.

    See Appendix A, supra.

  39. 39.

    Press Release, ICC, The Office of the Prosecutor of the International Criminal Court Opens Its First Investigation, ICC-OTP-20040623-59 (June 23, 2004), available online.

  40. 40.

    Id.

  41. 41.

    Id.

  42. 42.

    Press Release, ICC, Prosecutor of the International Criminal Court Opens an Investigation into Northern Uganda, ICC-OTP-20040729-65 (July 29, 2004), available online.

  43. 43.

    Statement, ICC, Statement by the Prosecutor Related to Crimes Committed in Barlonya Camp in Uganda, ICC-OTP-20040223-45 (Feb. 23, 2004), available online.

  44. 44.

    United Nations Security Council Resolution 1593, ¶ 1, UN Doc. S/RES/1593 (Mar. 31, 2005), available online.

  45. 45.

    U.N. Secretary General, Report of the International Commission of Inquiry on Darfur to the Secretary-General, U.N. Doc. S/2005/60 (Feb. 1, 2005).

  46. 46.

    Id. ¶ 626.

  47. 47.

    Press Release, ICC, The Prosecutor of the ICC Opens Investigation in Darfur, ICC-OTP-0606-104 (June 6, 2005), available online.

  48. 48.

    ICC, Situation in the Central African Republic, web page, ICC-OTP-BN-20070522-220-A_EN (May 22, 2007), available online.

  49. 49.

    Press Release, ICC, Prosecutor Opens Investigation in the Central African Republic, ICC-OTP-20070522-220 (May 22, 2007), available online.

  50. 50.

    Id.

  51. 51.

    Situation in the Republic of Kenya, Request for authorization of an investigation pursuant to Article 15, No. ICC-01/09, (Nov. 26, 2009), available online.

  52. 52.

    Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, No. ICC-01/09, (Mar. 31, 2010), available online.

  53. 53.

    Id. ¶ 202.

  54. 54.

    Id. ¶ 190.

  55. 55.

    ICC, Questions and Answers on the ICC Proceedings in the Libya Situation Following the Prosecutor’s Request for Three Arrest Warrants, ICC-PIDS-Q&A-LIB-00-002/11_Eng (May 16, 2011), available online; United Nations Security Council Resolution 1970, UN Doc. S/RES/1970 (February 26, 2011). عربي, English, Français

  56. 56.

    ICC, First Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011), ¶19, (May 4, 2011), available online.

  57. 57.

    Situation in the Republic of Côte d’Ivoire, Request for authorization of an investigation pursuant to article 15, No. ICC-02/11, (June 23, 2011), available online.

  58. 58.

    Situation in the Republic of Côte d’Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Côte d’Ivoire, No. ICC-02/11, ¶¶ 56, 64 (Oct. 3, 2011), available online.

  59. 59.

    ICC, Situation in Mali: Article 53(1) Report, ¶ 2, (Jan. 16, 2013), available online.

  60. 60.

    ICC, Afghanistan, web page, available online (last visited Mar. 3, 2013).

  61. 61.

    ICC OTP, Report on Preliminary Examination activities, ¶¶ 24-29, (Dec. 13, 2011), available online [hereinafter cited as Prelim Report].

  62. 62.

    Id. ¶ 24.

  63. 63.

    See id. ¶ 30.

  64. 64.

    ICC, Situation in Colombia: Interim Report, ¶ 3, (Nov. 14, 2012), available online.

  65. 65.

    Id. ¶ 2.

  66. 66.

    Id. ¶¶ 197-200.

  67. 67.

    Prelim Report, supra note 61, ¶ 51.

  68. 68.

    Id. ¶¶ 55-57.

  69. 69.

    Id. ¶¶ 58-60.

  70. 70.

    Id. ¶¶ 89-91.

  71. 71.

    Id. ¶ 98.

  72. 72.

    Id. ¶¶ 106-07.

  73. 73.

    Id. ¶ 114.

  74. 74.

    Id. ¶¶ 33-41.

  75. 75.

    Id. ¶ 47.

  76. 76.

    See generally ICC, Situation in Palestine, (Apr. 3, 2012), available online.

  77. 77.

    See Letter, Béatrice Le Fraper du Hellen, Director, Jurisdiction, Complementarity and Cooperation Division, OTP ICC, to Kyung Wha Kang, Deputy High Commissioner for Human Rights, 12 January 2010, available online.

  78. 78.

    See Iraq Decision, supra note 5, at 8-9.

  79. 79.

    See Letter, ICC OTP Response to Communications Received Concerning Venezuela, 3 (Feb. 9, 2006), available online.

  80. 80.

    UCDP, Frequently Asked Questions, web page, available online (last visited Mar. 3, 2013).

  81. 81.

    CAR is not excluded for the IDP list.

  82. 82.

    Recall from Part III(B)(8) supra that Palestine wishes to become a State party.

  83. 83.

    Ratification Status of the Rome Statute, UN Treaty Collection, web page, (last visited Mar. 4, 2013, 12:17 AM), available online.

  84. 84.

    Prelim Report, supra note 61, ¶¶ 87, 98, 114.

  85. 85.

    I was able to find a student note discussing a potential complementarity issue arising from Mexico’s lack of defining “crimes against humanity” in its domestic law. See generally, Spencer Thomas, Note, A Complementarity Conundrum: International Criminal Enforcement in the Mexican Drug War, 45 Vand. J. Transnat’l L. 599 (2012), available online.

  86. 86.

    See BBC News, Mexico Activists Seek ICC Investigation of Drugs War, (Nov. 25, 2011, 17:30 EST), available online.

  87. 87.

    Mexico: Widespread Rights Abuses in ‘War on Drugs’, Human Rights Watch (Nov. 10, 2011), available online.

  88. 88.

    Id.

  89. 89.

    Press Release, Comunicado 372, Secretaría de Relaciones Exteriores, Press Release 372, in response to calls for an ICC investigation (Nov. 10, 2011), available online (the quotations are from a translation of the text).

  90. 90.

    Id.

  91. 91.

    See Part III(B)(1) supra.

Nice article Benshea. I agree with you that African leaders need to understand that ICC is not targeting Africa but is targeting wrongdoers. If they don't want to be targeted they should stop committing crimes. I think the decision of AU to quit the Court would be a loss for us victims.

An Immunity Gap: Explaining the ICC’s Imbalanced, but Unbiased, Caseload

I. Introduction

Superficially, it is puzzling, if not disconcerting, that each of the eight situations currently under investigation at the International Criminal Court (ICC) involves an African country.1 Critics of the Court attempt to explain this phenomenon by claiming a so-called “Africa bias.” The ICC is, in their view, inappropriately targeting African states because the Court, and in particular the Office of the Prosecutor, is prejudiced against and or predisposed towards prosecuting African officials.2 Some of these critics even brand the ICC as a neo-colonial institution.3

Such accusations, however, misplace the blame. Given the Court’s jurisdictional handicap, it is both unfair and unwise to hold the ICC (or the OTP) accountable for its unbalanced caseload. Rather, this imbalance is a result of the fact that many of the world’s most prosecutable non-African countries have successfully immunized themselves, and therefore their citizens, from ICC investigation. Similarly situated African states, however, have failed to do so. The result is an “immunity gap” between prosecutable African and non-African states.

This paper seeks to explain this gap. In doing so, it reveals why neither the ICC nor the OTP are culpable for the so-called Africa bias.

II. Immunity Defined

There are two types of immunity, de jure immunity and P5 immunity. Though different in name and form, both yield the same outcome: a country’s immunization from ICC investigation.

De jure immunity results from a country’s non-State Party status. States that have ratified or acceded to the Rome Statute are known as State Parties. The Court can exercise jurisdiction over crimes committed on the State Party’s territory or by its nationals (assuming the crime in question is one listed in the Statute).4 By contrast, if a country is a non-State Party (NSP), neither crimes committed on its territory nor by its citizens fall within the Court’s jurisdiction (unless of course the United Nations Security Council (UNSC) formally requests such an investigation).5 In other words, NSPs are, as a matter of law, immune from ICC investigation. As this paper will demonstrate, many countries with de jure immunity are amongst the world’s most prosecutable states.6 They also happen to be located outside of Africa.

The second form of protection is P5 immunity. Unlike its de jure counterpart, P5 immunity is acquired by a NSP from one (or more) of the five permanent UNSC Members (P5) as part of a cliency relationship. In effect, the client-NSP receives assurance from its parent-P5 Member that the latter will veto any UNSC recommendation of its client to the ICC.7 As is illustrated below, whereas two Middle Eastern states, Israel and Syria, have obtained P5 immunity through cliency relationships, no African country is similarly shielded from the Court.

The following sections discuss de jure and P5 immunity, as well as their respective impacts on the so-called Africa bias.

III. De jure Immunity

To date, 72 of the world’s 194 countries, or 37% of all nations, are NSPs.8 More than one third of the world’s countries therefore enjoy de jure immunity from the ICC.

The precise composition of this 37% at least partially accounts for the immunity gap between African and non-African states. This is because a significant majority of the world’s NSPs are, almost certainly un-coincidentally, amongst the world’s most repressive and prosecutable countries. Moreover, an overwhelming percentage of these notorious states are in fact non-African countries.

Two datasets that track human rights abuses by country—Freedom House’s “Worst of the Worst: The World’s Most Repressive Societies in 2012” and Fund for Peace’s Human Rights index—support my assertion.9 Consider, for example, that fifteen of the sixteen states identified in the Freedom House report are NSPs,10 or that ten of the twelve worst human rights abusers according to the Fund for Peace boast the same status.11 It therefore matters not that attacks against civilian populations were widely reported in the Burma, Egypt, Libya, Sudan, and Syria; that enslavement, in the form of human trafficking, is rampant in the Burma, China, Eritrea, Laos and Uzbekistan12; that torture is par for the course in China, Eritrea, Laos, North Korea, Saudi Arabia, Sudan, and Uzbekistan13; that rape and other acts of sexual violence are common in the Burma, Somalia, and Sudan14; that persecution against groups on the basis of race, ethnicity, religion or gender was widely reported in each of the sixteen countries identified in the Freedom House report15; or that the number of disappeared persons is, according to Amnesty International, high in Algeria, China, Lebanon, Nepal, Pakistan, Sudan, Sri Lanka, Turkmenistan and Yemen.16 Because each country is a NSP, each is also immune, as a matter of law, from ICC investigation (save, of course, an UNSC recommendation).

Critically, however, not every country appearing in the aforementioned Freedom House and Fund for Peace indexes has de jure immunity. Indeed, there are two exceptions: Chad and the DRC, the only State Parties appearing in either of these two infamous datasets. This suggests that unlike their notorious non-African counterparts, both Chad and the DRC have, for reasons beyond the scope of this paper, voluntarily waived their de jure immunity. The same is true of the Central African Republic, Côte d’Ivoire, Kenya, Mali, and Uganda, five other African countries currently under ICC investigation.

It is therefore plausible that the so-called Africa bias results from a stark de jure immunity gap. Whereas most prosecutable African states like Chad and the DRC have relinquished de jure immunity, most prosecutable non-African states, from Sri Lanka to Saudi Arabia, have retained it. As a result, the majority of prosecutable states that actually fall within the Court’s jurisdiction are located in Africa. In this sense, the ICC’s unbalanced caseload is largely a byproduct of these non-African NSPs’ refusals to ratify or accede to the Statute. Neither the Court nor the OTP thus deserve blame.

However, the de jure immunity gap between prosecutable African and non-African states only partially explain the so-called Africa bias. Indeed, while this hypothesis accounts for the African State Parties currently under ICC investigation, it fails to explain how or why two African NSPs, Libya and Sudan, are currently before the Court. Clearly then, the de jure immunity gap does not, in and of itself, account for the Court’s unbalanced caseload. Another form of protection, called P5 immunity, is equally revealing.

IV. P5 Immunity

NSPs acquire P5 immunity through cliency relationships. When they do, “Security-Council-guaranteed accountability-free zones” are formed, and the ICC cannot investigate crimes committed in, or by citizens of, these states.17

A. Clientelism Defined

Before elaborating further, I first must define clientelism. This is not an easy task. Indeed, one scholar recently noted that the concept lacks any “generally accepted definition,” and instead proceeded to highlight four key elements—dyadic relationships, contingency, hierarchy, and iteration—essential to its meaning.18 For simplicity’s sake, I rely on Mark J. Gasiorowski’s definition. He explains:

Cliency is a mutually-beneficial, security-oriented relationship between the states of two countries, known as the patron and the client, which differ greatly in size, wealth, and military and political power. Cliency consists, in essence, of a reciprocal exchange, between the patron and client, of goods and services which enhance their mutual security.19

Gasiorowski’s definition therefore emphasizes that cliency relationships involve two key elements: an exchange that is mutually beneficial to parent and client alike, and a relationship rooted in security. These two elements are obviously interrelated. The backbone of any cliency relationship is its symbiotic nature; this symbiosis is predicated on the patron and client’s “international security considerations.”20

Equally apparent is that both the patron and client enter the cliency relationship for distinct purposes. The patron receives an ally who advances its regional security interests.21 Typically, the client does so by providing the patron with “access to military bases, navigational or overflight privileges, and active cooperation in certain military and intelligence activities.”22 It is for this reason that clients are generally located in “strategically-important” regions, irrespective of their “economic saliency.”23 Accordingly, Gasiorowski (accurately) predicted that patrons are most likely to acquire clients in the Middle East and East and Southeast Asia.24

In exchange for advancing its regional interests, the patron generally furnishes the client with an array of benefits known as “cliency instruments.” These include one or more of the following:

(1) Economic aid, including loans, grants, and indirect transfers such as loan guarantees and import quotas; (2) security assistance, including training and equipment for the client’s military police, and intelligence forces; (3) security arrangements, such as treaties, alliances, and informal commitments of support; (4) overt or covert intervention in the client’s domestic politics.25

Though the precise form of these instruments varies from relationship to relationship, a patron’s overarching goal in providing them is universal: to strengthen a client’s security and empower it against foreign and or domestic foes.26 The following section’s analysis of two cliency relationships will enumerate how patrons use these instruments to accomplish this objective.

B. The Impact of Clientelism on the Court’s Caseload

Together with the disproportionate number of prosecutable non-African NSPs (see above), I believe that clientelism accounts for much of the so-called Africa bias. This is because a handful of the world’s most prosecutable non-African states are not only NSPs, but are also clients of one or more P5 members. By contrast, no African state fits this mold. None therefore enjoys P5 immunity. Relying on Gasiorowski’s definition, this section specifically analyzes the relationship between clientelism and P5 immunity with respect to two allegedly prosecutable states, Israel and Syria, and more generally considers the impact of P5 immunity on the Court’s caseload.27

1. Israel

Israel and the United States enjoy a mutually beneficial relationship, the backbone of which is undoubtedly security. Indeed, the U.S. State Department’s website explicitly states, “commitment to Israel’s security has been a cornerstone of U.S. policy in the Middle East since Israel’s creation.”28 Three of Gasiorowski’s aforementioned cliency instruments, security assistance, loan guarantees, and security arrangements, affirm this commitment.

Beginning with security assistance, Israel, a country of approximately 7.8 million people, received more than $22 billion (US$) of military aid from the U.S. between 2003-2011.29 This accounted for 17% of Israel’s total military expenditures over this period.30 Moreover, included in this figure is approximately $8 billion of military equipment, a number that exceeds the value of equipment sold or given by the U.S. to Australia (7.7 bn.), Japan (5.5 bn.), Egypt (5.2 bn.) and the UK (4 bn.) despite their respective populations of 22, 127.4, 83.6 and 63 million persons.31 Even more revealing is the fact that this $8 billion represents an astonishing 93% of all arms exported to Israel over this nine-year span.32

In addition to providing Israel with direct military aid, Washington also guarantees a portion of Israel’s loan obligations. In 2003, Washington approved $9 billion in loan guarantees; Congress recently extended this guarantee (of the remaining $3.8 billion) through 2016.33 As a result, the U.S. is currently liable for up to $3.8 billion dollars in the event of an Israeli default. With this security, Jerusalem is able to borrow money at considerably lower interest rates.

But Washington’s commitment to Tel Aviv’s security is thicker than dollars. The two countries participate in numerous joint military exercises every year. In fact, the two countries very recently conducted Austere Challenge 12, their largest joint military operation in history.34 Moreover, the U.S. operates the Dimona Radar Facility in Southern Israel, and Port of Haifa is a frequent port of call for the U.S. Navy’s Sixth Fleet.35

The U.S. also protects Israel from its repeated (and outrageously disproportionate) attack at the United Nations. Since 2000, the U.S. has vetoed ten UNSC resolutions in condemnation of Israel.36 By comparison, Washington vetoed just one other resolution in this thirteen-year span.37 Relatedly, the United Nations Human Rights Council (UNHRC) has vilified Israel in 30 of the 46 resolutions passed since 2006 (the same year the UNHRC replaced the United Nations Commission on Human Rights); each instance the U.S. had the opportunity to do so,38 it voted against these resolutions.39

Collectively, these trends and statistics indicate the robust nature of the U.S.-Israel cliency relationship. More importantly, however, they suggest that the U.S. would undoubtedly veto any UNSC resolution seeking to refer Israel, a NSP, to the ICC. In this sense, Israel enjoys P5 immunity from the Court. Therefore, despite the international community’s preoccupation with punishing Israel for allegedly perpetrating war crimes and crimes against humanity in Gaza and the West Bank in 2008-09 and 2012, it appears that Israeli officials are immune from an UNSC-initiated ICC investigation.40

2. Syria

Syria, like it foe to the southwest, enjoys a cliency relationship with Russia. Indeed, the Moscow-Damascus tandem in many ways parallels that of its Washington-Jerusalem counterpart. The former, like the latter, is rooted in security, and similarly features a wide array of direct military aid, loan assistance, and other security arrangements.

Beginning with military assistance, Russia provides Syria with the vast majority of its weapons. Between 2003 and 2011, Syria received $1.4 billion of its nearly $2 billion (70%) worth of military imports from Russia.41 Only three countries—Algeria, Malaysia, and Venezuela—imported more Russian arms per capita over this period.42 More recent estimates suggest that Syria has even jumped to the top of this list. Syria currently purchases $700 million arms from Russia per year.43 In fact, sources now suggest that 10% of all Russian arms sales are Syria-bound.44

The Syrian-Russian cliency relationship consists of more than just weapons. Russia has forgiven $10 billion in Syrian debt.45 It is also allegedly “printing money” for the cash-strapped Assad regime.46 Moreover, Tartus, Syria is Russia’s lone naval base in the Mediterranean (and, in fact, the only Russian naval base outside of the former Soviet Union).47 The base provides Moscow with a crucial fueling zone, obviating the Kremlin’s need to send ships back to the Black Sea for oil.48

Finally, and perhaps most critically, Russia has a proven track record of protecting Syria at the U.N. Over the past two years, Moscow vetoed three UNSC resolutions in condemnation of the Assad regime.49 Considering the fact that Russia vetoed only six other UNSC resolutions since the fall of the Berlin Wall, this number is quite revealing. That Russia voted against four UNHRC resolutions targeting Syria since February 2012 similarly evidences Moscow’s commitment to Syria’s (read: Assad’s) security.50

Together, Russia’s military assistance, financial generosity, and other security arrangements prove the strength of the Russian-Syrian cliency relationship. Consequently, this brief analysis suggests that Russia would almost certainly veto any UNSC resolution recommending Syria to the ICC. In this sense, Syria, like Israel, has successfully secured P5 immunity. The death of 70,000 people,51 as well as the disappearance of almost 30,000 civilians,52 will not be investigated by the Court.

3. Beyond Israel and Syria

It is entirely possible that several countries in addition to Israel and Syria are clients of one or more P5 Members and therefore enjoy the benefit of P5 immunity. However, due to a lack of reliable and or transparent information, it is difficult to discuss these relationships with certainty. I will therefore share my thoughts on that which I’ve been able to find, though I fully acknowledge that these opinions are speculative.

Staying in the Middle East, it is possible that Iran is a client of Russia. Moscow has twice voted against UNHRC resolutions condemning the Islamic Republic for perpetrating massive human rights abuses.53 It also supplies Tehran with the majority of the Islamic Republic’s military equipment.54 Still, since 2006, Russia has voted in favor of eight UNSC resolutions critical of, and even imposing sanctions on, Iran because of its nuclear agenda.55 Moreover, numerous reports have recently intimated that bilateral relations are currently tense.56 Finally, and as will be discussed below with regard to Sudan, that a country is a major importer of Russian arms does not necessarily guarantee its possession of P5 immunity.57 As a result of these competing realities, it is unclear how Russia would ultimately vote should the UNSC refer Iran to the ICC.

By contrast, it is likely that Russia, and possibly China, would veto a UNSC referral of Sri Lanka to the Court. In fact, Richard Dicker, director of Human Rights Watch’s international justice program, listed Sri Lanka, along with Israel and Syria, as one of the “Security Council-guaranteed accountability-free zones.”58 Though various indicia of military and economic aid are difficult to verify, Beijing’s and Moscow’s actions at the UNHRC buttress Dicker’s claim: China and Russia opposed two resolutions condemning Colombo for its alleged abuses against the Tamil rebels, (including the death of nearly 40,000 people) during the final phase of a 26-year civil war.59 Accordingly, it is probable that China and Russia would similarly veto a UNSC referral to the ICC.60

North Korea, too, is a possible candidate for P5 immunity. The Hermit Kingdom has, for decades, relied on China for its security. However, precise data evidencing the transfer of various cliency instruments from Beijing to Pyongyang is impossible to find. The only ascertainable information of relevance is China’s voting record at the UN. It closely parallels that of Russia’s vis-à-vis Iran: Beijing has opposed UNHRC resolutions condemning North Korea for human rights abuses,61 but has repeatedly voted in favor of UNSC resolutions sanctioning Pyongyang for its nuclear program.62 It is therefore unclear how China would vote should the UNSC recommend the pariah state to the ICC. Militating against a Chinese veto is North Korea’s third and most recent round of nuclear testing, which might have finally put Beijing over the edge.63

4. Africa

Whereas the Middle East is home to (at least) two states in possession of P5 immunity, no African country is similarity shielded from the Court’s jurisdiction.

Consider, for example, arms sales from P5 Members to African countries. Between 2003-2011, France did not export more than $50 million in arms to any of Africa’s 48 states.64 Over this same period, the U.K. did so to South Africa only.65 Similarly, just two African states, South Africa and Nigeria, imported more than $50 million of weaponry from the world’s largest exporter, the U.S.66 Therefore, by at least one metric of security assistance, these three countries lack any clients in the Dark Continent.

China and Russia were more generous. Each independently exported weapons in excess of $50 million to four African countries.67 However, this fact, by itself, does not translate into P5 immunity. Sudan is proof. Between 2003-2011, Khartoum was the largest and second largest African recipient of Russian and Chinese arms, respectively.68 However, both Moscow and Beijing voted to refer Sudan to the ICC.69 In other words, even Khartoum failed to acquire P5 immunity.

Arms sales are not the only indicia that illustrate the paucity of African-P5 cliency relationships. No P5 state, with the exception of France, has a strong military presence in Africa. Russia, China, and the UK do not have a single military base on the continent. The U.S. has just one naval base, in Djibouti70; France, too, has a base in Djibouti, as well as two smaller ones in Senegal and Gabon.71

Finally, and most importantly, African countries are similarly lacking in informal security arrangements. Since 2001, the UNSC voted on 341 resolutions targeting at least fifteen specific African states.72 It vetoed just one.73 In other words, 99.7% of the time, no P5 member came to an African state’s defense. It is thus unsurprising that Sudan and Libya weren’t spared from UNSC-initiated ICC investigations.74

In sum, it appears that no African country currently enjoy a cliency relationship with a P5 member. None therefore possesses P5 immunity. Sudan and Libya are the most glaring examples, as unvetoed UNSC referrals led to ICC investigations. Angola, Eritrea, Ethiopia, Guinea-Bissau, or Somalia—all NSPs repeatedly condemned by the UNSC for rampant human rights violations—might soon suffer the same fate.75

It is therefore clear that P5 immunity contributes to the immunity gap between prosecutable African and non-African states. Whereas Israel and Syria, and possibly even Iran, Sri Lanka, and North Korea, are immunized from UNSC-instigated ICC investigations, no African country enjoys the same protection. This reality, in addition to the disproportionate number of prosecutable non-African NSPs, contributes to the perceived Africa bias.

V. Final Thoughts

Instead of attempting to dispel the so-called Africa bias, this paper sought to accurately identify the culpable parties.

Specifically, this paper argued that the Court’s unbalanced caseload results from two developments. First, a disproportionate amount of prosecutable non-African countries are NSPs. Second, at least two, but probably more, prosecutable non-African countries are protected by a P5 patron state. Taken together, these two realities suggest that prosecutable non-African states are protected from the ICC through de jure immunity, its P5 counterpart, or both. By contrast, prosecutable African states, from the DRC to Libya, lack any comparable security blanket.

As a result, neither the Court nor the OTP are culpable for the Court’s unbalanced caseload. Instead, the international community should acknowledge that true responsibility lies with the infamous NSPs as well as the P5 members who allow them to operate with impunity.

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

  1. 1.

    The eight situations before the ICC are: Uganda, the Democratic Republic of Congo, Sudan, the Central African Republic, Kenya, Libya, Côte d’Ivoire, Mali.

  2. 2.

    In 2009, the African Union condemned the ICC’s decision to issue an arrest warrant for Sudan’s President Omar al-Bashir. Similarly, following the ICC’s decision to investigate violence in Kenya, Kenyan political leaders called for Nairobi to withdraw from the Court. Mugabe and Qaddaffi have also criticized the Court. See Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 271-272 (2011). SSRN paywall.

  3. 3.

    See id. at 305.

  4. 4.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], Article 13.

  5. 5.

    id.

  6. 6.

    When this paper discusses “prosecutable” states, it refers to states whose territories have witnessed, or whose nationals have committed, crimes falling within the Court’s jurisdiction. Pursuant to Article 5 of the Rome Statute, these crimes are: genocide, crimes against humanity, war crimes, and the crime of aggression (beginning on January 1st, 2017).

  7. 7.

    Richard Dicker, A Flawed Court in Need of Credibility, NY Times, May 21, 2012, available online.

  8. 8.

    See ICC, State Parties to the Rome Statute, available online.

  9. 9.

    While these two indexes do not exclusively track crimes within the ICC’s jurisdiction, there is significant overlap. For example, Article 7 of the Rome Statute affords the ICC Jurisdiction over crimes against humanity. Pursuant to the Statue, these include: attacks against any civilian population; enslavement (in the form of human trafficking); forcible transfers of populations; torture; sexual violence; and persecution against any group on political, racial, national, ethnic, cultural, religious, or gender grounds. These crimes are also explicitly accounted for in both the Freedom House Report, infra, and Fund for Peace, The Failed States Index, (2011), available online, [hereinafter cited as Fund for Peace Index]. In this sense, these two datasets serve as proxies for which countries the ICC should investigate.

  10. 10.

    The notorious sixteen are: Belarus, Burma, Chad, China, Cuba, Eritrea, Laos, Libya Equatorial Guinea, North Korea, Saudi Arabia, Somalia, Sudan, Syria, Turkmenistan, and Uzbekistan. Only Chad is a State Party. See Freedom House, Worst of the Worst: The World’s Most Repressive Societies, (2012), available online, [hereinafter cited as Freedom House Report].

  11. 11.

    This list, in order from worst to “best,” is: Somalia, DRC, North Korea, Sudan, Syria, Chad, Equatorial Guinea, Uzbekistan, Egypt, Iran, Zimbabwe, and Eritrea. Only the DRC and Chad are State Parties. Foreign Policy, Failed States Index 2012 Interactive, available online.

  12. 12.

    See Freedom House Report, supra note 10; see also Fund for Peace Index, supra note 9.

  13. 13.

    Id.

  14. 14.

    id.

  15. 15.

    See Freedom House Report, supra note 9.

  16. 16.

    See Amnesty International, Amnesty International Report 2012: The State of the World’s Human Rights, (2012), available online.

  17. 17.

    See Dicker, supra note 7.

  18. 18.

    Allen Hicken, Clientelism, 2011 Ann. Rev. Polit. Sci. 289 (2011).

  19. 19.

    Mark J. Gasiorowski, Dependency and Cliency in Latin America, 28 J. Interamerican Stud. & World Aff. 47, 51 (1986).

  20. 20.

    Mark J. Gasiorowski & Seung-hyun Baek, International Cliency Relationships and Client States in East Asia, 2 Pacific Focus 113, 114 (1987). It is worth noting that this latter element, security, is what separates cliency relationships from economic dependency relationships, which are “determined by the structure of the world economy.” See id.

  21. 21.

    Id. at 115.

  22. 22.

    Id.

  23. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    Id. at 115.

  26. 26.

    See Gasiorowski, supra note 19, at 52.

  27. 27.

    I decided to focus on these two countries for two reasons. First, they are widely accused of perpetrating large-scale war crimes and crimes against humanity. Second, comprehensive data pertaining to numerous cliency factors is relatively accessible; the same is not true of Cuba, Iran, North Korea, and Sri Lanka, each of whom arguably enjoy P5 immunity (see Section IV in text).

  28. 28.

    See U.S. Department of State, U.S. Relations with Israel, Fact Sheet (November 28, 2012), available online.

  29. 29.

    Jeremy M. Sharp, U.S. Foreign Aid to Israel, Congressional Research Service at 30, March 12, 2012, available online.

  30. 30.

    Stockholm International Peace Research Institute (“SIPRI”), Military Expenditure Database, available online.

  31. 31.

    SIPRI, Arms Transfers Database, available online, [hereinafter cited as SIPRI Database]. It is worth noting that SIPRI’s arms transfers figures are specified 1990 dollars. I therefore converted these numbers into 2010 dollars using an inflation calculator. Population figures are from CIA, The World Factbook, available online.

  32. 32.

    SIPRI Database, Id.

  33. 33.

    See Nadav Shemer, US Extends Israel Loan Guarantees to 2016, The Jerusalem Post, October 25, 2012, available online.

  34. 34.

    Ilan Ben Zion, US Military Chief Meets with Peres, Lauds Military Partnership, The Times of Israel, October 29, 2012, available online.

  35. 35.

    Tim McGirk & Aaron J. Klein, Israelis Wary of a US Base in the Negev, Time Magazine, October 2, 2008, available online.

  36. 36.

    See Global Policy Forum, Changing Patterns in the Use of Veto in the Security Council, available online.

  37. 37.

    Id.

  38. 38.

    I compiled a database of all UNHRC resolutions passed since 2006, [hereinafter cited as UNHRC Database]. Information was gathered from the UNHRC website.

  39. 39.

    The U.S. was only a UNHRC member during 18 of 30 anti-Israel resolutions. See id.

  40. 40.

    Because the Palestine Liberation Organization is well aware of this reality, and given the fact that the PLO recently became a non-member observer state, it is entirely possible that the PLO will try an alternative approach. Rather than launch what would be a purely symbolic but ultimately unsuccessful campaign at the UNSC, the PLO, which has already acceded to the Rome Statute, can self-refer its case to the ICC. However, given Israel’s de jure immunity, this approach would be equally unsuccessful. Indeed, the best the Palestinians can hope for is a “Sudan-like situation.” See Patrick Martin, Palestinians’ potential access to International Criminal Court worries Israel, The Globe and Mail, November 29, 2012, available online.

  41. 41.

    See SIPRI Database, supra note 31.

  42. 42.

    Id.

  43. 43.

    Jacqueline McLaren Miller, What’s Behind Russia’s Syria Veto?, EastWest Institute, February 8, 2012, available online.

  44. 44.

    Richard Galpin, Russian Arms Shipments Bolster Syria’s Embattled Assad, BBC News, January 30, 2012, available online.

  45. 45.

    See Miller, supra note 41.

  46. 46.

    Alex Spillius, Russia Printing Money for Syria Claims Reports, The Telegraph, November 26, 2012, available online.

  47. 47.

    Andrew E. Kramer, Russian Warships Said to be Going to Naval Base in Syria, NY Times, June 18, 2012, available online.

  48. 48.

    Id.

  49. 49.

    See Global Policy Forum, supra note 36.

  50. 50.

    See UNHRC Database, supra note 38.

  51. 51.

    Ashley Fantz, Syria Death Toll Probably at 70,000, U.N. Human Rights Official Says, CNN, February 13, 2013, available online.

  52. 52.

    Luke Harding, Up to 28,000 Syrians Have Disappeared Since Uprising Began, The Guardian, October 18, 2012, available online.

  53. 53.

    See UNHRC Database, supra note 38.

  54. 54.

    See SIPRI Database, supra note 31.

  55. 55.

    See Global Policy Forum, supra note 36.

  56. 56.

    See Jahangir Karami, Iran-Russian Relations: Expectations and Realities, 9 Discourse: An Iranian Quarterly (2011), available online; Ariell Farrar-Wellman, Russia-Iran Foreign Relations, Iran Tracker, August 2, 2010, available online; Pavel Felgenhauer, The Unraveling Relationship Between Russia and Iran,BBC News, July 24, 2010, available online.

  57. 57.

    Id.

  58. 58.

    See Dicker, supra note 7.

  59. 59.

    See Editorial, UN Adopts Resolution on Sri Lanka War Crimes Probe, BBC News, March 22, 2012, available online.

  60. 60.

    See Dicker, supra note 7.

  61. 61.

    See UNHRC Database, supra note 38.

  62. 62.

    See Global Policy Forum, supra note 36.

  63. 63.

    Kurt Campbell, North Korea is Testing China’s Patience, Financial Times, February 19 2013, available online.

  64. 64.

    See SIPRI Database, supra note 31.

  65. 65.

    Id.

  66. 66.

    Id.

  67. 67.

    Id.

  68. 68.

    Id.

  69. 69.

    See UNSC, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court, Press Release, SC/8351, March 31, 2005, [hereinafter cited as UNSC Darfur Press Release], available online.

  70. 70.

    Craig Whitlock, Remote U.S. Base at Core of Secret Operations, The Washington Post, October 25, 2012, available online.

  71. 71.

    Andrew Hansen, The French Military in Africa, Council on Foreign Relations, February 8, 2012, available online.

  72. 72.

    A database of all UNSC resolutions can be found on the Security Council’s website [hereinafter cited as UNSC Database]. The 341 resolutions I refer to exclude those that targeted particular regions of Africa (e.g. the sub-Saharan) or the continent as a whole.

  73. 73.

    See UNSC Database, id. Both Russia and China vetoed a 2008 resolution attempting to sanction Zimbabwe. See Neil MacFarquhar, 2 Vetoes Quash U.N. Sanctions on Zimbabwe, NY Times, July 12, 2008, available online.

  74. 74.

    See UNSC Darfur Press Release, supra note 69; see also UNSC, In Swift, Decisive Action, Security Council Imposes Tough Measures On Libyan Regime, Adopting Resolution 1970 in Wake of Crackdown on Protesters, Press Release, SC/10187/Rev.1, February 26, 2011, available online.

  75. 75.

    See UNSC Database, supra note 72.

I agree with Chief Taku. Just look at the number of cases prosecuted so far. More important, take a closer look at the the number of perceived offenders who have not been prosecuted and the answer is there for everyone to see. The ICC is targeting Africa inappropriately.

NTAGANDA INVITES THE ICC TO LOOK BEYOND AFRICA

The surrender of Bosco Ntaganda is a positive development not so much because it brings the ICC closer to those who bear the greatest responsibility for the crimes perpetrated in the East of the Democratic Republic of the Congo, but because, in and outside of the United States, it will shine the spotlight once again on US commitment to International Justice, adjudged by many to be hypocritical, duplicitous and, to say the least, ambivalent.

Ntaganda will surely be granted his wish to be surrendered to the ICC, but for the US it is not as easy as that. It places the event right into the US’s internal politics towards the ICC. It revives the debate about the US opposition to the ICC and attempts by the US to use the proceedings at the ICC as a launchpad to eternalize neo-colonial control of Africa while rejecting intervention by the ICC in crimes perpetrated by US citizens and its neo-colonial puppets on the continent and elsewhere. Rwanda, which has vehemently opposed ICC intervention in Africa, has played a fast one of the US—or was it with the US’s complicity? Whatever the case, Ntaganda, at some point, will start talking. And I suggest that it is worth watching with keen interest Rwanda’s role in this: granting Ntaganda safe passage through its highly secured borders right to the US Embassy in Kigali.

The situations on Africa are caused by learned behavioral issues and cycles of learned abusive patterns of authority, jurisdiction, and the rights of the civilian individual, in specific woman/ children rights... Many African alleged criminals if not taking part in a war upon themselves as a cycle of colonialism, Africa may not be the state seen and observed today.

At present the ICC has a war crime on Iraq ongoing, without jurisdiction and authority based on Evidence to enter said state, although there is speculation what if Iraq was not entered the situation may be worse, the fact is Kuwait had the opportunity to hear all allegations to test if Prime Minister Hussein was a lawful man upon conviction, in that conscience it could be said that the western provincials of the roman statute are allowed to promote illegal conduct and form english excuses as if reality due to their speculations of what they think being enough to act against any people...

there is a probability that there is no balance of the fact crimes are being ignored, while others are not being ignored, in any event the rule of law applied as much to the murder and torture caused by the invasion of Iraq as caused when cycled on the state of africa and ignoring one over the other due to speculation may be considered prejudice...

furthermore on Afghanistan the same force also committed an act of kidnapping, then abandoned the Afghanistan justice system for the Wests own...whereas the child kidnapped was allowed to go home, allowed to respond to a perceived enemy of state, knew america the government is an enemy of life in particular woman as in insane asylum for the insane global population where all believe steel has civil rights prior woman life forms do as civilians...

In any event- yes the ICC is a failure, and yes- it is prejudice as a court and office, moreover probably based on facts due to a character flaw cowardly administrations and officer judges and justices..

A European ICC? The ICC and Modern European Paternalism in Africa

I. Introduction

The International Criminal Court (ICC) portrays itself as an apolitical institution that will take action irrespective of their targets’ nationality or political position. However, some people, particularly African leaders and post-colonial scholars, look at the Court’s caseload and wonder why, if that is the case, its only prosecutions have been of African nationals. African leaders and Afrophiles portray the ICC as another way in which the West is establishing a neocolonial relationship in which Western countries, particularly those in Europe, through the use of conditional support and military humanitarian intervention, maintain authority over their former colonies. They perceive the ICC, while not as European per se, as an institution modeled on European principles and administered by a global elite inculcated in Western values and trained in the Western mode.

Obviously European countries and the European Union (EU) as a whole do not perceive themselves as imperial powers. Europe is the originator and a strong proponent of universal human rights, and has fostered many institutions for their strict enforcement on the continent and worldwide. If these rights are indeed universal, it makes no sense to restrict their application to Europe. Rather, they should be applicable to all individuals, regardless of nationality, and perpetrators of the worst crimes should be held responsible regardless of where those crimes took place. In this view, the International Criminal Court is a natural extension of other international human rights projects, and is no more biased against Africa than it is Western or European.

In this comment, I argue that the ICC is a part of a European-imposed and implemented international human rights project which has a particular focus on Europe’s African colonies. The perception of the ICC as a European institution biased against Africa is predicated upon (1) the ICC’s embededness in the international human rights system, which is perceived by some to be a Western imposition, (2) European verbal and fiscal support for the Court, (3) Europe’s heightened, paternalistic sense of responsibility towards Africa, particularly in the areas of economics and human rights violations, which has been fostered by its identity as a former colonizer and its mistakes in the region after decolonization, and (4) Europe’s perception and presentation of itself as a normative model for the international community, in whose recreation it can instruct others, which implies a sense of European superiority and conjures the specter of Europe attempting to remake Africa in its own image.

In part II.A, I discuss how the International Criminal Court’s placement in the international justice system, its Westernized staff, and its reliance on European support and funding has led to the perception that the Court is Europe’s alter ego. In part II, I show how the history of the international human rights trials as an imposition on defeated states by European powers has created a system which, while now almost universally accepted, is still European in nature. In part III, I detail how the Court can be interpreted as a complement to other forms of European interventionism in the region. In part IV, I examine how Europe, through the European Union (EU), conceives of and presents itself as a normative model for other countries to emulate and a force for promoting its values throughout the world, and link it to ICC to that ideological framework. In part V, I make some concluding remarks.

II. The “Africa Bias” of a Western Court

A. The ICC as a European Institution

Some African leaders and scholars specializing in African studies have accused the ICC of unfairly targeting African countries in its investigations, indictments, and prosecutions. Thus far, the ICC has only launched full investigations in the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya; the Republic of Côte d’Ivoire and Mali. Some of these critiques have been directed specifically at former Prosecutor Luis Moreno-Ocampo. For instance, in 2011, Jean Ping, then-chairman of the African Union (AU), accused Ocampo of “rendering justice with double standards” against Africa and led a vote calling AU members to ignore an arrest warrant for Col. Muammar el-Quaddafi.1

However, many some critics explicitly attribute the alleged Africa bias to Western neocolonial ambitions in Europe’s former colonies. In 2008, Paul Kagame, President of Rwanda, said that “with [the] ICC all the injustices of the past including colonialism, imperialism, keep coming back in different forms.”2 Mahmood Mamdami, chaired Professor of Government at Columbia University, claims that “the ICC heralds a regime of legal and political dependence” for African countries.3 Zaya Yeebo, a writer and commentator on Pan-African affairs, has called the Court “a pathetic continuation of an imperial tradition” that is “working to a script written in Washington, Paris and London.”4

While these critics are quick to accuse the U.S. of promoting the ICC’s neocolonialism,5 the U.S., unlike most members of the European Union including Great Britain, France, Germany, the Netherlands, and Belgium, is not a party to the ICC and has a limited impact on the Court’s indictment and prosecutorial decisions. That fact, combined with EU’s promotion of the ICC and the Court’s reliance on Europe for its guiding principles and its funding gives the Court a decidedly European appearance. Europe’s extensive involvement with the Court both engenders fears that the ICC, if not a wholly European institution, is a Westernized instrument for Western goals.

1. Western Europe and the Origins of the International Human Rights System

International human rights law originated from a European intellectual and political tradition of protecting fundamental individual rights. Critics of the international justice system view these norms as imports into other areas of the world, and view trials conducted under the auspices of human rights law as culturally imperialistic, if not as a front with which major Western powers can pursue victor’s justice. Most people who accuse the Court of an Africa bias do not hold these views. However, these perspectives, well publicized and the subject of continued scholarly debate, are the context in the debate over whether the ICC is neocolonialist is grounded, and inform the perspectives of critics who take issue with the Court’s operating decisions rather than its existence.

The modern conception of human rights is predicated on the recognition of the individual as the locus of individual rights and freedoms.6 In doing so, it draws on the tradition of the European Enlightenment, which argued that “rational, secular, democratic, and universal” values could be achieved using the means of “law, liberty, and progress,”7 drawn directly from seventeenth and eighteenth century French, English, and American politics.8 Some scholars and extremist politicians argue that those principles, as embedded in documents such as the Universal Declaration of Human Rights, are foreign to the clan and tribal traditions of Africa and Asia, which place greater value on communal rights, and have been imposed on states along with capitalistic economics which they would not have adopted voluntarily.9 African states were not party to its drafting, and had no say at the system’s outset as to whether the values it embodied were truly universal.

While mainstream scholars argue that the differences between the values of Western and non-Western cultures are overstated,10 and most African countries have since adopted the principles of human rights into their own law,11 it is still the case that international human rights law is a European import into Africa, which is enough for many to question the aims of the institutions that enforce it. In some cases, this plays out in front of criminal tribunals. Local critics of the International Criminal Tribunal for Rwanda, for instance, believe the tribunal overemphasizes the rights of the accused and metes out inadequate punishment, as the tribunal, unlike the Rwandan justice system, does not provide for capital punishment.12 This sentiment is reinforced by what some see as the selective manner in which international human rights violations have hitherto been tried.

Questions of the legitimacy of forcibly imposed human rights trials emerged in 1945 at Nuremberg, the first international arena in which individuals were held criminally liable for human rights violations. The International Military Tribunal, in its Judgment, claimed that the crimes listed in the Tribunal’s Charter originated in international treaties, one of which, the Kellogg-Briand Pact, Germany had in fact ratified, and others which, while nonbinding, had precedential value as indicators of “customs and practices of states which gradually obtained universal recognition” and “general principles of justice applied by jurists and practiced by military courts.”13 However, critics of the Trials, both contemporaneous and current, accuse the Allied Powers of imposing new laws after the fact on the defeated parties for political reasons rather than in pursuit of justice.14 The same has been said of the International Criminal Tribunal for the Former Yugoslavia, which Robert M. Hayden argues directed its prosecutions according to American whims on the basis of the accused’s national characteristics,15 and the Special Tribunal for Lebanon, which is seen by critics as anti-Syrian, like most of Europe and the U.S.16 Critics fear that the ICC will similarly direct its prosecutions in line with Western interests, helping to cement its image as a Western, and in particular a European, court.

2. The Westernization of the Court Staff

A large proportion of the ICC’s staff is European, and even those who are not are members of a global elite who have been educated in a Western fashion. Of the 24 judges currently on the ICC, ten are European, as is the Court’s second Vice-President and one of the two heads of the OTP’s subdivisons.17 Of the 5 African judges on the court, three have advanced degrees from European institutions.18 And all of the judges are highly educated with considerable overseas experience. For instance, Judge Joyce Aluoch of Ghana holds a Masters Degree in International Affairs from Tufts University in the U.S., was chair of the African Union Committee of Experts on the Rights of the Child, and was vice-chair and member of the UN Committee on the Right and Welfare of the Child; and Judge Fatuoma Dembele Diarra of Mali was an ad litem judge at the International Criminal Tribunal for the former Yugoslavia .19 Thus, even those judges who are not European or European-educated are still inculcated in Western educational traditions and legal systems that are perceived as Western, further embedding themselves into a historically Western legal system.

3. European Promotion and Funding

Europe was and continues to be one of the ICC’s biggest proponents and funders, enhancing the image that the Court is under Europe’s sway. The EU was in large part the Court’s sponsor after the U.S. failed to ratify the Rome Statute and then withdrew its signature in 2003.20 As of 2008, the European Commission had spent more than €17 million (nearly $23 million) on the ratification campaign, €2.6 on its internship and visiting professional programs.21 The EU’s Special Representatives in troubled countries promote collaboration with the ICC in the African Union and in the African Great Lakes region, and provides technical assistance to states interested in signing, ratifying, and implementing the Rome Statute.22

Additionally, EU member states’ contributions were 75.6% of total assessed contributions to the Court, dropping to 57.4% when Japan acceded to the Court.23 This total does not include individual states’ contributions. As of 2010, six of the top ten contributors to the ICC were European states.24

While the ICC is not European per se, the Court’s legal pedigree and Westernized staff, as well as Europe’s support for the court via both the European Union and individual states, support a perception that European interests and the Court are intertwined. Europe’s extensive involvement with the Court helps to engender the perception that the Court’s focus on Africa is a result of bias. More bluntly, it raises fears that the ICC is an extension of Europe’s colonial and neo-colonial involvement on the continent.

III. The Specter of Colonial Europe

Some Africans are inclined to be suspicious of European involvement in the political affairs of the region, which, given the history of the two continents’ relations, is not unreasonable. However, precisely because of that history, Europe is committed to assisting Africa using all available means, whether military, technological, economic, or social. While the recipients of this aid are (usually) grateful for its availability, the sentiment with which it has been dispensed, combined with the conditional nature of much of the aid and the continued presence of European soldiers on the continent, indicates a paternalistic attitude towards Africa and a sense that the continent still requires guidance from the people who were responsible for its destruction.

A. The Rhetoric of Responsibility

Even after the end of colonization and the rejection of the idea of the “White Man’s Burden,” European attitudes have not shed all their paternalism. In the 1960s and 1970s, Europeans speaking through the European Economic Community (EEC) Commission and the Council of Europe spoke freely of the need for Europeans to guide African development to ensure its success.

In 1963, Hendrich Hendus, the EEC Commission’s Director General for Overseas Development, stated in an address to ambassadors of the Republic of the Congo that Europeans had “a responsibility, a duty to allocate part of [Europe’s] prosperity” to “the development of backwards countries.”25 Perhaps more disturbingly, he criticized African countries from abandoning the governance models with which their colonizers had provided them, and stated that the only possible cure was reshaping Africa’s political structures in Europe’s image. He spoke disapprovingly of the abandonment of colonially drawn borders, which he claimed created “federations that in many cases constituted effective economic and even political units.”26 As a solution, he prescribed the African equivalent of the EEC, and warned that only such a structure would make possible Euro-African “co-operation between partners on the same footing, if not between equals.”27 The implication that Africa could not survive without Europeanization, with which the EEC would willingly assist them, is astounding, not least because Congo had only become independent three years prior. It demonstrates a lack of confidence that Africans could function in the absence of European assistance, an implication that, unsurprisingly, was not appreciated by African leaders at the time.28

The Council of Europe issued a report echoing these themes in 1987. In the draft notes for the report, the Political Affairs Committee of the Council’s Parliament Responsibility declared that “the western world in general and Europe in particular [had] a duty to take action” in response to the contemporaneous African economic crisis. While the above language suggests that Europe was in Africa’s debt as a result of its colonial history, and the notes went on to warn against perpetuating Africans’ dependence on Europe as if they were “modern welfare recipients,”29 the committee still expressed a lack of trust for Africans to manage their own affairs. Most strikingly, on the same page that the committee advocated “a final break with colonialism and ethnocentrism,” it expressed a European responsibility “help [Africans] to reinterpret their cultural past and highlight the aspects which reflect past and future demands”—in other words, to steer Africa’s cultural development so that it was compatible with the Council’s conception of Africa’s needs.

As recently as 1995, respected scholars were still arguing that Africa was incapable of managing its own policy.30 More recently, cognizant of their ugly history in Africa, European countries have made every effort to portray their current relationships with African nations as partnerships in which both sides benefit equally. In 2007, the EU launched a strategic partnership with the AU that, according to the EU’s official press release, aims “[t]o move away from a traditional relationship [between Europe and Africa] and forge a real partnership characterised by equality and the pursuit of common objectives.”31 It relies on the concept of “interdependence between Europe and Africa,” characterizes the partnership as based on a “consensus on values, common interests and common strategic investment,” and emphasizes that its aid is “guided by the principle of African ownership.”32 However, stressing the current aim of equality only serves to emphasize the extent to which Europe has influenced African affairs, and throws the extent to which Africa still relies on Europe for assistance into sharp relief.

B. Economic Dependency and Conditional Aid

African economies rely heavily on large quantities of European monetary aid for the development of their economies. Because of this reliance, European countries can set the terms under which their African counterparts receive such aid, and generally make that aid conditional upon changes in political and economic policy. The result is continuing influence over the governments of African countries, allegedly for the countries’ own good, which to some is reminiscent of the old colonial relationships.

European countries provide more aid to Africa than they do to any other region. From 2000 to 2001, fourteen European countries allocated over 25% of their Overseas Development Aid (ODA) to Sub-Saharan African countries, and seven allocated over 50%; those numbers were sixteen and eight, respectively, from 2005 to 2006, and sixteen and ten from 2010 to 2001.33 At least four of the top ten aid recipients from the United Kingdom, France, Belgium, and the Netherlands, the states that formerly held African colonies, were African; the were mostly former colonies of the donors,34 suggesting a particular sense of obligation to assist those countries.

These large inflows are a substantial chunk of their recipients’ economies. In 1990, ODA comprised over 10% of the gross domestic product of 30 sub-Saharan countries, which had been the case in most of those countries for at least ten years; 21 countries were still receiving aid at that level in 1998.35 When countries have received high levels of aid over the course of decades, it becomes difficult for them to break their aid dependence, as it creates an institutional structure that resolves around the receipt of ODA.36 The result, according to donors, has been the stymieing of growth in the private sector and a resulting underdevelopment of most African economies.37

Because these countries receive so much of their revenue from abroad, their donors can, and often have set conditions that must be met for the aid to be dispersed. These often take the form of the introduction or bolstering of democratic structures, increased protection of human rights, and new transparency and accountability mechanisms in government.38 However, they may also include requirements to increase economic liberalization by reducing trade barriers such as tariffs and privatizing state-owned industries. In the mid-1980s, the World Bank and other financial institutions funneling financial aid began to make the adoption of market-based policies a prerequisite for getting loans and aid.39 Given the length and extent of the crisis, African leaders could not refuse the aid.40

Critics take issue with the plans’ negative impact on local industry, vulnerable members of society (especially women and children), and their neglect of the social element of development.41 The World Bank could not prevent an economic crisis in Mexico while the country was following their plan’s requirements;42 just as Argentina suffered a financial crisis while following the guidance of the International Monetary Fund.43 These factors have soured some on the alleged benefits of following Western-mandated plans, which are characterized as “neoliberal” and too inflexible to be applied to donees.44 And even those who do not take issue with the substantive prescriptions may still resent the apparent control this gives organizations such as the World Bank over their economies, if not the mere fact that the global North’s institutions are setting policy prescriptions for the rest of the world.45

Critics tend to impute the actions of the institutions such as the World Bank to the U.S. and countries in Western Europe, which are among the most powerful of their members. But bilateral donors also impose their own conditions on ODA. Bilateral donors, in contrast to intergovernmental organizations such as the World Bank, have an even greater preference for conditional, earmarked aid, which in 2010 comprised 75% of all ODA, more than three times higher than such aid from intergovernmental organizations.46 Thus, conditional aid is also directly attributable to European countries, and the criticisms of conditional aid levied at the intergovernmental institutions can be laid directly at Europe’s door.

Europe’s continuing economic involvement in Africa, which at times borders on the maintenance of a dependency relationship, suggests that Europe is not only feels a particular responsibility for solving African problems, but also is impinging on African states in doing so. Human rights interventions in Africa provoke similar concerns.

C. Human Rights Interventions

European countries frequently engage in military operations in Africa, frequently in order to contain human rights violations. Within the last twenty years, European states, in particular France and the UK, have contributed to military interventions in Rwanda, East Timor, Sierra Leone, Côte d’Ivoire, Libya, and Mali. The situations in Rwanda, East Timor, Sierra Leone resulted in the creation of ad hoc tribunals; those in Libya and Mali gave rise to ICC indictments. While these interventions arguably were not initiated for purely humanitarian reasons,47 human rights violations were a factor in the decision to intervene in all these situations. However, questions remain about the efficacy of such missions and the extent to which they are actually intended to assist the people in the countries where they take place. These criticisms portray the interventions as misguided and exploitative, and make some skeptical of the benevolent portrayal of the European defense of human rights.

Scholarly critics such as Richard Betts and Rachel Utley challenge whether military intervention actually mitigates human rights litigation. Betts discusses how NATO was reluctant to act against the Bosnian Serbs in the mid-1990s due to a desire to be “evenhanded” and not actively promote the cause of the Muslims and Croats.48 Similarly, he criticizes the failure of the U.S. (or France) to support any particular side when intervening in Somalia, resulting in the persistence of local anarchy, and the reluctance to intervene in Rwanda until far too late.49 Utley, in contrast, criticizes the misdirected nature of some “humanitarian” interventions, which in fact protect human rights violators from harm. She takes issue with the limited nature of the French intervention in Rwanda, in which it had supported “a corrupt, undemocratic government, had sent troops to defend it from rebellion, and had established safe havens for Hutus—including perpetrators of genocide—to protect ‘friends’ of France from public scrutiny and accountability.”50 By casting the efficacy of human rights interventions into doubt, these scholars undermine their legitimacy. By portraying Europe’s desire to assist and improve the rest of the world, Africa included, as unsuccessful in practice, they implicate European countries as paternalistic actors who cannot back their desire to aid with actual help.

Failed human rights interventions raise resentment that European countries, despite claiming to know what is in the best interest of countries suffering human rights violations, either fail to carry out their humanitarian goals while instating a military presence in African states, or actually exacerbate the harm.

Another criticism leveled at humanitarian intervention is that they are not, in fact, aimed at assisting the countries in which they take place. Utley argues that the reason why France’s intervention in Rwanda was ineffective is that France was more interested in propping up its allies rather than containing human rights violations.51 The arguments made by former American President George W. Bush and former British Prime Minister Tony Blair that the 2003 war in Iraq was a humanitarian intervention are subject to intense criticism in the literature, and is frequently coupled with the allegation that the “responsibility to protect” “is the latest guise for Western imperialism.”52 The fear that humanitarian interventions are motivated by Western interests rather than concern for human rights violations fosters fears that human rights projects like the ICC are neocolonial tools. Any indication that a human rights institution is focusing specifically on Africa—especially when all the targets are former colonies—seems to confirm those fears.

Continued military and economic intervention in Africa, especially when motivated by humanitarian concerns, indicates a lack of trust in Africa’s ability to manage its own problems. This is made more distasteful by the fact that even when economic and humanitarian situations have spiraled past the point at which poor countries with governments that cannot or are unwilling to manage the crisis at hand, the U.S. and European powers are unable to manage them either. The imposition of external justice systems, imposed from the outside, in which European countries invariably play a major part, becomes suspicious when examined in that context. The fact that, Europe, via the EU, has paired such interventions with a portrayal of itself as normatively superior only exacerbates the issue.

IV. The Paternalism of Normative Europe

The European Union and its precursors constitute a major international achievement; they have helped to preserve peace in Europe for the last seventy years and maintain the relative strength of the European economy, and have allowed European states to coordinate their policies. However, proponents of the EU have taken its success as evidence that the European model is normatively superior to other modes of international cooperation that must be promoted in and extended to other parts of the world, but especially Africa. In this context, the ICC seems a perfect extension of an EU project to Europeanize Africa.

Top officials are understandably proud of how, in the words of the Nobel Committee, it has “for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.”53 Because of the EU’s remarkable successes, officials present the union as a model that other states should follow. When accepting the Nobel Peace Prize on the European Union’s behalf in 2012, President José Manuel Barroso described the EU as “a new legal order… despite its imperfections, the European Union can be, and indeed is, a powerful inspiration for many around the world.54 He also expressed the EU’s commitment to “fight for lasting peace, freedom and justice in Europe and in the world” and his desire “that, with all women and men of good will, the European Union will help the world come together.”55

While these sentiments are admirable, the presentation of the EU as the gold standard for achieving international peace simultaneously conveys the notion of European superiority and a moral failing on the part of the rest of the world. Likewise, its asserted responsibility to help others to recreate the EU’s successes implies a perceived need to instruct less competent states in how to manage their affairs.

Multiple scholars have observed that the EU’s portrayal of itself as a normative model results in an unintentional cultural imperialism. Lisbeth Aggestam, for instance points out that “[t]he problem with this ambition to shape the world in Europe’s image is that it is based on an assumption that European values and ways of doing things are intrinsically superior… the problem with this view is that it communicates a message of Europe as morally superior and an image of others as ruled by the ‘law of the jungle’.”56 Europe’s well-meaning attempts to extend its own successes to the rest of the world inevitably cast the rest of the world as failing in the areas in which the EU claims to have succeeded. The fact that the EU specifically points to the preservation of human rights as one of its greatest successes helps to tie the EU’s wholehearted support of the ICC to the institution’s greater normative project.

Some scholars have also warned that Europe’s characterization of itself as an “ethical intervener” is particularly disparaging towards Africa. Olivia Rutazibwa alleges that the theoretical framework under which Europe undertakes human rights interventions results in the creation of a false contrast of “the benevolent EU versus malevolent, corrupt African leaders.”57 More pointedly, she criticizes the creation of a “dichotomy where the EU holds all the knowledge and the Africans are first and foremost in need of intensive training or technical support,” which she also describes as “a parent/child relation in which it is almost normal that punishment is applied in the educational effort, from the EU towards Africa, for the latter’s own good.”

It is debatable whether Europe’s humanitarian interventions are entirely paternalistic. The argument is harder to sustain in the context of the ICC: of the eight full-scale investigations which the Court has initiated, four were self-referrals, in which the countries exercised their agency in inviting the ICC to take action. However, Europe’s support for the ICC dovetails neatly with the EU’s apparent sense of superiority and its self-appointed mission to help Africans achieve peace and human rights, not to mention its other formers of interventionism. In this context, the ICC becomes another arm in what Europeans admit is a quest to shape the rest of the world in Europe’s image.

V. Conclusion

European countries have a strong sense of responsibility towards Africa which leads them to contribute extensive aid and support across a broad swath of categories, including human rights. While this assistance is well-intended, the ideology underlying its dispersal is intertwined with an attitude of European superiority and a sense that other countries cannot achieve Europe’s success on their own. The European origins and character of international human rights law, combined with Europe’s ongoing support for the ICC, provide a backdrop in which the ICC becomes a European institution, which, like Europe as a whole, considers Africa its first priority.

The ICC may well have legitimate reasons to have confined its work to Africa thus far. However, in focusing on Africa, it has painted itself not as an apolitical institution, but an institution acting in line with European objectives. This challenges the ICC’s desire to remain independent and apolitical. Even if Europe has no direct control over the Court, the alliance of interests suggests a certain level of politicization. This is not to say that the Court should be considering whether its decisions will result in a perception of bias. However, the Court should be aware that merely denying that it is a biased institution cannot rebut the allegation that it is part of a wider political project, and that it is being used to achieve that project’s goals.

Perhaps the ICC will take up cases outside of Africa in the near future, and this characterization of the Court as a European-minded, Africa-focused institution will prove moot. However, if it does not, the President and Prosecutor may need to evaluate whether, in their mission to maintain the ICC’s independence, they should also consider how their focus on Africa is shaping the Court’s identity.

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

  1. 1.

    Richard Lough, African Union Accuses ICC Prosecutor of Bias, Reuters, Jan. 30, 2011, available online; African Union Opposes Warrant for Qaddafi, Associated Press, July 2, 2011, available online.

  2. 2.

    Kezio-Musoke David, Kagame Tells Why He is Against ICC Charging Bashir, Daily Nation, Aug. 11, 2008, available online.

  3. 3.

    Mahmood Mamdami, Darfur, ICC, and the New Humanitarian Order: How the ICC’s ‘Responsibility to Protect’ is Being Turned into an Assertion of Neocolonial Domination, Pambazuka News, September 17, 2008, available online.

  4. 4.

    Is Africa on Trial?, BBC News, Mar. 27, 2012, available online.

  5. 5.

    See Mamdami, supra note 3 (arguing that the U.S. is using its control over referrals from the United Nations Security Council to the ICC to target its adversaries and direct the Court away from those countries with which it has alliances).

  6. 6.

    Hersh Lauterpacht, International Law and Human Rights, 17 (1950).

  7. 7.

    J. A. Lindgren Alves, The Declaration of Human Rights in Postmodernity, 22 Hum. Rts. Q. 478, 488 (2000).

  8. 8.

    Adamantia Pollis & Peter Schwab, Human Rights: A Western Construct with Limited Applicability, in Human Rights: Cultural and Ideological Perspectives, 2 (Adamantia Pollis & Peter Schwab eds., 1979).

  9. 9.

    Id. at 8-14; see also David, supra note 2. Pollis and Schwab have since reversed their position; see Human Rights: New Perspectives, New Realities (Adamantia Pollis & Peter Schwab eds., 2000).

  10. 10.

    See, e.g., Amartya Sen, Universal Truths: Human Rights and the Westernizing Illusion, 20 Harv. Int’l Rev. 40 (1998); Christina M. Cerna, Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts, 16 Hum. Rts. Q. 740, 745 (1994) (quoting Mahbubani, Deputy Secretary of the Ministry of Foreign Affairs of the Republic of Singapore in 1948, saying that “Asians and Westerners…can agree on minimal standards of civilized behavior that both would like to live under. For example, there should be no torture, no slavery, no arbitrary killings, no disappearances in the middle of the night, no shooting down of innocent demonstrators, no imprisonment without careful review”); Jack Donnelly, Cultural Relativism and Universal Human Rights, 6 Hum. Rts. Q. 400 (1984).

  11. 11.

    African states took part in the development of later human rights treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights; adopted, through the Organization of African States, multiple charters based on the UHDR; and were active participants in the development of the ICC. Of the 118 states that have ratified the Rome Statute, 33 are African, more than in any other region. Max du Plessis, The International Criminal Court that Africa Wants, Inst. For Sec. Studies 67-76 (2010), available online; B. Obinna Okere, The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems, 6 Hum. Rts. Q. 141 (1984); State Parties to the Rome Statute of the ICC According to the UN General Assembly Regional Groups, Coalition for the International Criminal Court Factsheet, Apr. 2, 2012, available online (last visited Mar. 3, 2013).

  12. 12.

    Kingsley Chiedu Moghalu, Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda, 26 Fletcher Forum World Aff. 21, 28-29 (2002), available online; Melissa Gordon, Justice on Trial: The Efficacy of the International Criminal Tribunal for Rwanda, 1 ILSA J. Int’l & Comp. L. 217, 221-22 (1995).

  13. 13.

    Judgement: The Law of the Charter, The Avalon Project, available online (last visited Mar. 3, 2013).

  14. 14.

    See, e.g., Mark Osiel, Mass Atrocity, Collective Memory, and the Law, (1997); George Finch, Book Review, 41 Am. J. Int’l L. 334 (1947), available online, reviewing Sheldon Glueck, The Nuremberg Trial and Aggressive War, (1946); Thane Rosenbaum, The Romance of Nuremberg and the Tease of Moral Justice, 27 Cardozo L. Rev. 1731 (2006), available online.

  15. 15.

    Robert M. Hayden, Biased “Justice:” Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia, 47 Clev. St. L. Rev. 549, 551 (1999).

  16. 16.

    Antonios Tzanakopoulos, Special Tribunal for Lebanon: The First Orders by the Pre-Trial Judge, 13 ASIL Insights 11 (2009), available online.

  17. 17.

    Structure of the Court, ICC, available online, (last visited Mar. 2, 2013).

  18. 18.

    Judge Akua Kuenychia studied at Oxford, Chile Eboe-Osuji holds a Ph.D. in international criminal law from the University of Amsterdam, and Judge Fatuoma Dembele Diarra is a graduate of French National School for the Judiciary in Paris. Id., Katy Glassborow, Meet Judge Akua Kuenyehia in Office, Modern Ghana, Feb. 10, 2008, available online.

  19. 19.

    Structure of the Court, supra note 17, at 17.

  20. 20.

    Sibylle Scheipers & Dianiela Sicurelli, Normative Power Europe: A Credible Utopia?, 45 JCMS 435, 439-441 (2007).

  21. 21.

    Stuart Ford, How Leadership in International Criminal Law is Shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts, 55 St. Louis U. L.J. 955, 969 (2010), available online.

  22. 22.

    The European Union and the International Court, The European Council, 12, 14, (May 2010), available online.

  23. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    M. Heinrich Hendus, Director General for Overseas Development, European Economic Community Commission, Africa and the Common Market, Address to the Meeting of Ambassadors of the Congo Republic, 7-8 (January 25, 1963), available online.

  26. 26.

    Id. at 6.

  27. 27.

    Id. at 9.

  28. 28.

    See Dickson Eyoh & Richard Sandbrook, Pragmatic Neo-liberalism and Just Development in Africa, (University of Toronto, CIS Working Paper 2001), available online.

  29. 29.

    Council of Europe, Parliamentary Assembly, Political Affairs Committee, Report on Political Co-operation Between Europe and Africa: Draft Recommendation, 8, 1987.

  30. 30.

    See William Pfaff, A New Colonialism?, 71 Foreign Aff. 2 (1995) (arguing that Europe’s past injuries to Africa can only be resolved if Europe takes Africa into trusteeship).

  31. 31.

    Council of the European Union, The Africa-EU Strategic Partnership: A Joint Africa-EU Strategy, 4, Dec. 9, 2007, available online.

  32. 32.

    Id. at 2, 6.

  33. 33.

    Statistics on Resource Flows to Developing Countries, OECD, Table 27, available online (last visited Mar. 4, 2013).

  34. 34.

    Id.

  35. 35.

    Deborah A. Bräutigam & Stephen Knack, Foreign Aid, Institutions, and Governance in Sub-Saharan Africa, 52 Econ. Dev. Cultural Change 255, 257 (Jan. 2004), available online.

  36. 36.

    Id. at 259.

  37. 37.

    See Christopher S. Adam & Stephen A. O’Connell, Aid, Taxation and Development in Sub-Saharan Africa, 11 Econ. & Pol. 225 (1999), available online.

  38. 38.

    See, e.g., Mark Robinson, Aid, Democracy, and Political Conditionality in Sub-Saharan Africa, 5 Eur. J. Dev. Res. 85 (1993); Report on the Criteria and Methodology for Determining the Eligibility of Candidate Countries for Millennium Challenge Account Assistance in Fiscal Year 2013, Sept. 2012, available online; William Walls, Africa Voices Anger Over Cameron Aid Threat, Financial Times, Nov. 16, 2011, available online (describing how British Prime Minister “David Cameron’s threats to limit aid to countries that fail to relax laws against homosexuality have prompted a backlash across English-speaking Africa…where homosexuality is almost universally taboo”).

  39. 39.

    Francis Owusu, Pragmatism and the Gradual Shift from Dependency to Neoliberalism: The World Bank, African Leaders and Development Policy in Africa, 31 World Dev. 1655, 1658 (2003). Market-oriented reforms prioritize macroeconomic stability, deregulation and liberalization, and the privatization of land and state-owned enterprises. Eyoh & Sandbrook, supra note 28, at 5.

  40. 40.

    Owusu, supra note 39, at 1659.

  41. 41.

    Id. at 1666.

  42. 42.

    Id.

  43. 43.

    See Joseph E. Stiglitz, Argentina, Short-changed: Why the Nation that Followed the Rules Fell to Pieces, Wash. Post, May 12, 2002, available online; but see Anne Krueger, First Deputy Managing Directory, International Monetary Fund, Crisis Prevention and Resolution: Lessons from Argentina, Address to the Conference: The Argentina Crisis, July 17, 2002, available online, (arguing that domestic policy choices and not the IMF’s prescriptions were responsible for the collapse of the Argentine economy). Note, however, that Krueger was an IMF employee at the time she gave the speech above.

  44. 44.

    See, e.g., Alex de Waal, Democratizing the Aid Encounter in Africa, 73 Int’l Aff. 623 (1997).

  45. 45.

    But see Ravi Kandur, Aid, Conditionality and Debt in Africa, in Foreign Aid and Development: Lessons Learnt and Directions for the Future, 5-6, (Finn Tarp ed., May 2010), available online.

  46. 46.

    Abebe Adugna & J. Fitz Ford, Intergovernmental Fiscal Systems and Development Aid Comparisons and Lessons of Experience (CFP Working Paper No. 6, 2010), available online.

  47. 47.

    See, e.g., Paul Williams, Fighting for Freetown: British Military Intervention in Sierra Leone, 22 Contemp. Sec. Pol’y 140, 156-57 (2001) (elaborating on various rationales for the Sierra Leone intervention).

  48. 48.

    Richard Betts, The Delusion of Impartial Humanitarian Intervention, 73 Foreign Aff. 10, 24-25 (1994), available online, archived http://www.webcitation.org/6FGzIcPX8.

  49. 49.

    Id. at 26, 31. Others have also criticized the intervention in Somalia for creating the conditions under which militant Islamic groups took control of Somali governance. See Markus Virgil Hoehne, Counter-terrorism in Somalia: How External Interference Helped to Produce Militant Islamism, (2009) (unpublished paper), available online.

  50. 50.

    Rachel Utley, ‘Not to Do Less but to Do Better…’: French Military Policy in Africa, 78 Int’l Aff. 129, 132 (2002), available online.

  51. 51.

    Id.

  52. 52.

    Robert W. Murray, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, 2 GR2P 329, 351 (2010).

  53. 53.

    Press Release, The Norweigian Nobel Committee, The Nobel Peace Prize for 2012, available online (last visited Mar. 5, 2013).

  54. 54.

    Herman Van Rompuy & José Manuel Barroso, From War to Peace: a European Tale, Address upon Acceptance of Nobel Peace Prize, Dec. 10, 2012, available online.

  55. 55.

    Id.

  56. 56.

    Lisbeth Aggestam, Introduction: Ethical Power Europe?, 84 Int’l Aff. 1, 7 (2008).

  57. 57.

    Olivia R. Rutazibwa, The Problematics of the EU’s Ethical (Self) Image in Africa: The EU as an ‘Ethical Intervener’ and the 2007 Joint Africa-EU Strategy, 18 J. Contemp. Eur. Stud. 209, 216 (2010).

The Africa Bias and Official Development Assistance Disbursements: More than Just Prosecutorial Bias

I. Introduction

The International Criminal Court has increasingly come under scrutiny for operating under a so-called ‘Africa Bias.’1 Indeed, since the Rome Statute took effect, all eight cases opened by the ICC have been against African nations, of whom five countries were states parties to the Court at the time of referral.2 The obvious counter to the claim of an African bias is that the Office of the Prosecutor (“OTP”) is searching for crimes pursuant to its mandate; that Africa is repeatedly targeted is simply a logical corollary to the fact that the crimes to which the Rome Statute applies are being committed there.

However, I propose an alternative hypothesis: that there is in fact an African Bias, though it is not limited to the ICC. Instead, the prosecution of solely African nations is emblematic of an over-apportionment of resources toward the continent as a whole by the developed community; or, more specifically, the OECD. Therefore, the disproportionate focus on African nations by the OTP is not so much a concerted effort or predisposition against the African continent as it is a continuance of this more general focus on Africa by the international community.

In order to test this hypothesis, I conduct empirical and regressionary analysis of Official Development Assistance disbursement across five years to determine whether there is disproportionate attention being paid to Africa in general. Using ODA as a proxy for international attention, I show below that a disproportionate amount of resources are allocated toward Africa, even after controlling for the aid recipient’s GDP per capita. This attention might then explain the increased focus by the ICC on the continent as a whole.

II. Theoretical Framework

Given the clear tendency toward the prosecution of African defendants, I seek to explain not why these specific prosecutions are justified, but instead why they are unsurprising, and consistent with an implicitly accepted international norm. This implied norm is that there is an African bias in nearly every developmental sense, and that the law is no exception to this.

Stated more simply, the disproportionate representation by African defendants in the ICC merely mirrors the disproportionate disbursement of foreign assistance to Africa. Taking this a step further, this increased aid should then imply that the continent is less developed, generally. Therefore, in addition to increased economic development (by way of ODA), there is a need for increased legal development by way of criminal prosecution. Hence, given that African nations are the beneficiaries of a disproportionate amount of ODA, there should be the expectation that—or at least an understand as to why—these countries would be subject to increased legal liability, as well.

For this theory to hold any substantial weight, however, the theory must be grounded in some factual basis. To formulate this foundation, I begin with a discussion of the history and function of the Organisation for Economic Co-operation and Development (“OECD”), before discussing the data on development aid disbursements by this agency and then the statistical model to be used. I then present the results of this analysis as well as general conclusions.

A. The OECD and Official Development Assistance

The Organisation for Economic Co-operation and Development was founded in 1961 as an outflow of the Organisation for European Economic Co-operation (“OEEC”), which was formed to rebuild Europe’s economy after World War II.3 The OECD was subsequently established with the goal of promoting world trade and seeking to close the wealth disparity that existed between the developed and the developing countries of the world.4 One of the primary vehicles through which the OECD accomplishes this goal is through disbursement of Official Development Assistance. The Development Assistance Committee (DAC) is the branch of the the OECD devoted to disbursing the monies received to nations in need of economic development.5 The DAC is responsible for the apportionment, the granting of, and also the oversight of development assistance.6

III. Data and Model

A. Official Development Assistance (OECD)

The OECD publishes statistics tabulating the disbursements of ODA to recipient nations, disaggregated by country and by year. This data is publicly available on the OECD website, which contains numerous different statistics, including “ODA Receipts and Selected Indicators for Developing Countries and Territories.”7 This specific dataset contains statistics on ODA receipts dating back to 2007, Gross National Income (GNI) of recipient nation in 2011, the population of the recipient nation in 2011, GNI per capita in 2011, and ODA as a share of GNI in 2011. This data is then taken in conjunction with the economic indicators found in the Penn World Tables, in order to create per capita adjusted ODA disbursement figures.

B. Economic Data (Penn World Tables)

The economic data used is also publicly available international data services available through the University of Pennsylvania, via the Penn World Tables.8 This dataset includes a host of relevant variables, including GDP, population, and other economic indices for each country in the world, dating back to 1950. This data set is among the most widely used in the economic literature. Population is used to adjust ODA to a per-capita figure, and GDP is used as a control during analysis.

C. Statistical Analysis

To analyze whether or not there is an increased disbursement of foreign aid to African nations the first step is a top level analysis of that data. Thus, I begin by examining the means of the ODA disbursed by region to examine whether or not there are clear outliers. Table 1 shows that Oceana is a clear outlier. With an average ODA that exceeds all other regions by nearly fivefold, and a standard error that exceeds the majority of the other regions’ means, it is very likely an extreme set of observations, with the potential to skew regional tendencies. Therefore, Oceanic countries are discarded from subsequent analysis.9 Similarly interesting, is the size of the mean ODA disbursements to North America, as well as the variance. Yet this is likely explained by the relatively small number of countries in North America (predominantly Central American countries) which receive aid.

Table 1. ODA by Region
Region Mean of ODA
(in Millions of $)
Standard Error of ODA
Africa 82.07 6.307692
North America 116.09 17.91552
South America 52.45 12.67
Asia 63.94 6.88
Europe 58.78 7.68
Oceana 564.48 77.16

After examining all of the regions to which ODA has flowed since 2007, the logical next step is a comparison of Africa, to all other regions taken together. Table A1 shows that there is a marked difference in ODA disbursements between Africa and the rest of the world.10 Though the difference is stark, a two way Student t-test does not lend enough confidence to reject the null hypothesis that there is no difference between ODA disbursed to Africa and ODA disbursed to all other nations. However, the regions within the dataset are even more granular. And, taking out North Africa, and looking only at Subsaharan Africa relative to all other nations yields an even more pronounced difference between ODA disbursements. Table 2 below shows this ‘Africa bias’ in ODA disbursements. Moreover, this difference is statistically significant. A one-sided t-test confirms that the disparity between the ODA doled out to Sub-Saharan African Countries and all other is significantly different at the 5% level.11

Table 2. ODA in Sub-Saharan Africa Relative to the Rest of the World
Region Mean of ODA
(in Millions of $)
Standard Error of ODA
*Note: one-sided Student t-test for a difference of means yielded a p-value of 0.0428.
Sub-Saharan Africa 88.3646 6.796611
All Other Regions 72.27722 6.00792

This preliminary analysis makes an a priori case that there exists an ‘Africa bias’ in more than just prosecutorial discretion by the Office of the Prosecutor at the ICC. Indeed, these figures show a marked discrepancy in the focus paid to Sub-Saharan African Nations and other developing nations as measured by disbursements of aid.

1. Panel Regression Model

Given the seemingly strong evidence pointing toward an ‘Africa bias’ in more than just the ICC, a more robust model should be established to corroborate this theory. Using ODA data for the 5 year period from 2007 to 2011 combined with economic indicators, I created a 5 year panel dataset upon which regressionary analysis can be run. Beginning with this dataset, I generated a GDP per capita statistic, by adjusting GDP by population. I also generated dummy variables corresponding to each region.

A panel regression is appropriate when the data are disaggregated by year, and by region or grouping. The purpose of this form of analysis is to capture three specific trends: (i) region specific trends, (ii) time specific trends (for the whole sample) and (iii) region-time specific trends, or time trends that are exclusive to particular regions. The Ordinary Least Squares regression model for this equation looks as follows:

Equation: ODA Regression equals beta sub naught + beta sub 1 times GDP sub it + beta sub two + Region sub it + mu sub i + psi sub t + eta sub it + epsilon sub it

This simplified model projects ODA disbursements as a function of GDP per capita, as well as a regional vector, denoted Region, which consists of a host of regional dummy variables. The remaining four terms represent the trends mentioned above, and the error term. The μi term represents regional effects, ψt represents general time trends, ηit represents region-time specific trends, and εit represents the sample wide error.

Taking this model and applying it to the data, yields Table 3 below. This table chronicles various iterations of the above equation, adding and omitting regional dummies in an attempt to key into the effect of Africa on ODA disbursement.

Table 3. Panel Regression of Regional Effects on Log of Official Development Assistance, Controlling for GDP per Capita (2007-2011)
  (1) (2) (3) (4) (5)
Standard errors in parentheses.  *** p<0.01, ** p<0.05, * p<0.1
VARIABLES Natural log of ODA over population. Natural log of ODA over population. Natural log of ODA over population. Natural log of ODA over population. Natural log of ODA over population.
GDP per Capita -0.000188 -0.000177 -0.000177 -0.000177 -0.000171
(0.000266) (0.000266) (0.000266) (0.000266) (0.000265)
REGIONAL DUMMIES  
Africa 0.625***   0.761*** -0.687  
(0.234)   (0.236) (0.586)  
Sub-Saharan Africa   0.761***   1.449** 1.449**
  (0.236)   (0.595) (0.585)
North Saharan Africa   -0.687 -1.449**    
  (0.586) (0.595)    
North America         1.196*
        (0.623)
South America         0.0789
        (0.663)
Middle East         0.735
        (0.729)
South & Central Asia         0.717
        (0.638)
East Asia         0.0293
        (0.695)
Europe         0.971
        (0.710)
Constant 3.453*** 3.450*** 3.450*** 3.450*** 2.761***
(0.167) (0.164) (0.164) (0.164) (0.563)
Observations 537 537 537 537 537
Number of Countries 135 135 135 135 135
i. Regression Analysis

Table 3 presents five separate regressions all against the baseline panel regression of GDP on the natural log of ODA disbursements.12, 13 In all five regressions, GDP per capita is not a significant predictor of ODA per capita. This of itself is troubling. It effectively implies that aid is not being doled out in accordance with need.14

However, there is a very strong positive effect attributable to Africa in each regression. Moreover, disaggregating Africa into countries North of the Sahara and South of the Sahara paints an even clearer picture of what is driving ODA disbursements. Regression (2) shows that when compared to other nations, African nations receive 63% more aid per capita even after controlling for GDP per capita. Regression (3) breaks this effect out over North and South of the Sahara; the percentage impact increases substantially for Southern African countries, to 76%. Interestingly, however, Northern African countries do not differ significantly from other nations. This effect is even more pronounced in regressions (3) and (4), where North Africa shows a significant negative effect relative to Africa generally. Similarly, Southern Africa appears to be driving the positive effect for the whole of Africa; Africa as loses its overall significance in this model, while South of the Sahara increases to 145% over the international average.

In regression 4, controlling for all regions, the trend is steeled. Relative to the North of the Sahara, Southern Africa experiences 145% more aid per capita. Also interesting is the size and significance for North America (120%). This statistic is possibly inflated by the fact that relatively few countries receive aid in this continent—after excluding the United States and Canada.

Interestingly, Northern African countries do not experience this corresponding over-emphasis. Thus, Libya might make some case for an Africa Bias. However, given the exacerbated circumstances out of which the investigation arose, as well as the fact that it was brought on by a Security Council referral, to point to the Africa bias as a factor in the prosecution of Libya would be a tenuous claim, at best.

In summary, this analysis presents convincing evidence that African nations South of the Sahara receive more Official Development Assistance than their African counterparts, and also relative to all other nations.

IV. Conclusion

Examining receipts of Official Development Assistance through OLS Panel Regression makes a cogent case that African nations, or more specifically, Subsaharan African nations receive an amount of ODA not commensurate with economic need. This disproportionate attention paid to African nations relative to others in need reflects a larger scale international emphasis on African nations. Thus, the fact that only African nations have been targeted for investigation by the ICC and the OTP is consistent with this international norm. The contention that this bias exists and should be ameliorated should therefore be accompanied by the contention that fewer official aid dollars should flow to Africa as well. However, few would support such a conclusion. Indeed, the most vocal admonishers of this prosecutorial focus are African leaders, who benefit—often personally—from increased aid receipts. Thus, the contention presented in this paper that ICC prosecutions are merely the stick accompanying the OECD’s carrot would likely dampen the volume of such criticisms.

Provided that the above analysis is taken as persuasive, the question changes from whether or not there is an Africa bias in the International Criminal Court, and instead shifts to whether or not the international community as a whole is over-apportioning resources toward Africa relative to demonstrated need. Granted, this argument and analysis miss less quantifiable determinants of international aid, including humanitarian relief, political interest, residual colonial effects, corruption, and a host of other variables. Yet, this comment casts doubt on the notion that the so-called ‘African bias’ being promulgated by the ICC is a concerted effort by the Office of the Prosecutor. Instead, I suggest that this ‘bias’ is in fact a subset of a larger, more pervasive trend. This comment is not meant to argue for decreased ODA to African countries. Instead, it is intended to show that this increased ODA is one facet of the developmental resources poured out into the African continent, and that legal development should be expected to track with economic. African leaders cannot expect ‘cafeteria’ development, whereby countries pick and choose which types of development to receive. An increased legal culpability for human rights abuses should instead be viewed as an implied pre-requisite to the receipt of international aid money.

Appendix

Table A1. ODA in Africa Relative to the Rest of the World
Region Mean of ODA
(in Millions of $)
Standard Error of ODA
Africa 82.07 6.31
All Other Regions 75.73 6.36
Table A2. Panel Regression of Regional Effects on Log of Official Development Assistance, Controlling for GDP per Capita (2007-2011)
  (1) (2) (3) (4) (5)
Standard errors in parentheses.  *** p<0.01, ** p<0.05, * p<0.1
VARIABLES Natural log of ODA over population. Natural log of ODA over population. Natural log of ODA over population. Natural log of ODA over population. Natural log of ODA over population.
GDP per Capita -0.000152 -0.000142 -0.000142 -0.000142 -0.000174
(0.000264) (0.000264) (0.000264) (0.000264) (0.000260)
REGIONAL DUMMIES  
Africa 0.319   0.456* -0.994  
(0.251)   (0.255) (0.646)  
Sub-Saharan Africa   0.456*   1.450** 1.449**
  (0.255)   (0.659) (0.579)
North Saharan Africa   -0.994 -1.450**    
  (0.646) (0.659)    
North America         1.195*
        (0.616)
South America         0.0788
        (0.656)
Middle East         0.735
        (0.722)
South & Central Asia         0.716
        (0.632)
East Asia         0.0291
        (0.688)
Europe         0.971
        (0.703)
Oceana         3.189***
        (0.675)
Constant 3.749*** 3.746*** 3.746*** 3.746*** 2.762***
(0.172) (0.170) (0.170) (0.170) (0.557)
Observations 537 537 537 537 537
Number of Countries 135 135 135 135 135

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

  1. 1.

    See Is Africa on Trial?, BBC News, Mar. 27, 2012, available online; Richard Lough, African Union Accuses ICC Prosecutor of Bias, Reuters, Jan. 30, 2011, available online.

  2. 2.

    These countries, ordered by date of investigation are: Democratic Republic of Congo, Uganda, Central African Republic, Sudan (Darfur) [U.N. Security Council Referral], Kenya [proprio motu referral], Libya [U.N. Security Council Referral], Republic of Côte d’Ivoire, and the Republic of Mali.

  3. 3.

    Organisation for Economic Development and Co-operation: Development Assistance Committee Mandate 2011-2015 (2010), available online.

  4. 4.

    Id.

  5. 5.

    About the OECD (Mar. 6, 2013), available online.

  6. 6.

    Id.

  7. 7.

    See Statistics on Resource Flows to Developing Countries, OECD, Table 25, available online .

  8. 8.

    PWT 7.1 Alan Heston, Robert Summers & Bettina Aten, Penn World Table Version 7.1, Center for International Comparisons of Production, Income and Prices at the University of Pennsylvania, Nov 2012 available online.

  9. 9.

    Some possible explanations for the extreme values observed for Oceanic countries are: a lack of population density (as countries are predominantly islands) and also residual increased aid flows from the tsunami that struck the region in 2004.

  10. 10.

    See Appendix, Table A1. Note, Oceana is omitted from subsequent analysis for the reasons discussed above.

  11. 11.

    A one-sided Student t-test of means yields a p-value of 0.0428.

  12. 12.

    Note, Table A2 displays this same regression.

  13. 13.

    The natural log transformation corresponds to a percentage change in ODA disbursements per capita as a result of one unit changes in dependent variables.

  14. 14.

    Insofar as we take GDP per capita to be an adequate proxy for need.

Does the Application of the Institutional Framework Adopted by the Office of the Prosecutor Lead to a Conclusion of Bias?

I. Introduction

Since the establishment of the International Criminal Court (ICC) in 2002 the Office of the Prosecutor (OTP) has been accused of a bias against African nations due to its exclusive indictment of individuals of African nationality.1 There are many theories posited as to the possible reasons for this alleged bias and the failure of the OTP to proceed with investigations of any non-African situations. As the first permanent court prosecuting international crimes, the ICC has the remit to ensure that “the most serious crimes of concern to the international community as a whole [do] not go unpunished,”2 and faced with this monumental task the OTP has developed an “institutional framework capable of ensuring the proper exercise of its functions.”3 This comment will look at this framework and examine potential institutional reasons for the alleged bias against African nations, by looking at the internal rules and policies adopted by the OTP being utilized in determining when to proceed with an preliminary examination and investigation.

II. Determining Prosecutions: The ‘Most Serious Crimes’ and the ‘Greatest Responsibility’

Under the Rome Statute, the “most serious crimes” encompass genocide, war crimes and crimes against humanity, however the Statute is silent on the issue of who should be held accountable for the commission of this level of crime. Consequently it has been left to the Chief Prosecutor and OTP to determine which alleged perpetrators to focus their investigations upon. In response to this lacuna the Prosecutor has concentrated on prosecuting those bearing the “greatest responsibility” for international crimes.4 While this distinction is not found in the Statute it has been accepted as a necessary and justified policy, particularly given the large number of perpetrators for crimes that the Court is mandated to investigate.5

In furtherance of its stated policy of targeting those bearing the greatest responsibility, during its first three years of operation the OTP adopted a Prosecutorial Strategy based around three “essential principles”: positive complementarity, focused investigations and prosecutions, and maximizing the impact.6 All three have impacted upon the decision making process in the OTP with regard to what investigations to pursue. Of particular relevance to this comment is the second principle: focused investigations and prosecutions.

Under this principle the OTP has developed a number of indicia to adjudge when to proceed with an investigation, expounding criteria for determining the most serious crimes and identifying those individuals who bear the greatest responsibility. The Office is keen to underline that this determination of individuals “is done according to, and dependent on, the evidence that emerges in the course of an investigation.”7 In selecting cases in a particular situation before the OTP they have “adopted a “sequenced” approach… whereby cases inside the situation are selected according to their gravity.”8 This was a proactive choice by the Office to assist it in eliminating cases of insufficient gravity and has led to the OTP focusing on a “sample” of the crimes committed in any situation in order to limit the extent of prosecutions and to avoid the situation seen at the ad hoc tribunals of including lengthy indictments charging numerous crimes at multiple crime bases.9

III. Articulating the ‘Gravity’ Test

In determining what are the ‘most serious crimes’ one guiding principle offered by the Rome Statute is that of ‘gravity’ found in Article 17. This provides that a case will be inadmissible where it “is not of sufficient gravity to justify further action by the court.” In an internal policy paper in 2003, the OTP made clear that “the concept of gravity should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission.”10 In the same policy paper, the OTP further asserted that it should “focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.”11 The OTP has been keen to emphasize that “it would be an error of law to inject rigid requirements into the legal standard for ‘sufficient gravity’ in Article 17(1)(d),” and that ‘gravity’ is intended as a jurisdictional barrier “intended to establish a basic standard for gravity, excluding offenders and crimes that do not warrant the exercise of jurisdiction.”12

The criteria that the OTP has adopted in Regulation 29(2) to assist it in making its determination of gravity include “the scale of the crimes; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes.”13 These are both “quantitative and qualitative considerations based on the prevailing facts and circumstances.”14

The OTP have expanded upon these criteria in its Draft Policy Paper on Preliminary Examinations.15 With regard to the first criteria—scale of crime—the OTP looks to the “number of direct and indirect victims, the extend of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, and their geographical or temporal spread.” In determining the nature of the crimes the Office examines the specific elements of each offense committed, while they assesses the manner of commission of the crimes in a number of ways, including:

(T)he means employed to execute the crime, the degree of participation and intent in its commission, the extent to which the crimes were systematic or result from a plan or organized policy or otherwise resulted from the abuse of power or official capacity, and elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination, or the use of rape and sexual violence as a means of destroying communities.

Finally, in evaluating the impact of the crimes, the Office looks to the consequences of the crimes on the local or international community, whether the crimes in question were committed with the aim or consequence of increasing the vulnerability of civilians, and whether the primary purpose of the acts was to spread terror among the civilian population.16

In articulating this ‘sequenced’ approach to selection of cases and in adopting a ‘gravity’ test, the OTP has applied the above criteria flexibly, making case-by-case determinations. Understandably, there is no minimum requirement of X number of killings, rapes or forced disappearances to meet the gravity test. Indeed, the Appeals Chamber of the ICC has recognized that “the role of persons or groups may vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formulistic grounds.”17 That there is no hardline quantitative requirement is a fact to be applauded, as putting a figure on the amount of human suffering required to be considered of ‘sufficient gravity’ for the crimes to come before the court would be callous and not allow for the ever-changing face of conflicts and situations in which the commissions of the ‘most serious crimes’ take place.

In developing these non-exhaustive criteria the OTP have been sufficiently vague to allow broad application and interpretation of the factors to the situation under consideration. The question is, therefore, how this approach has led to the exclusive indictment of African leaders: have other situations failed to meet the gravity test or has there been a biased application of the gravity test to African situations? Why has an application of this test led only to the indictment of African leaders?

IV. Applying the Gravity Test

In its Draft Policy Paper on Preliminary Examinations the OTP outlined the application of the gravity test in the situations in Kenya and Iraq. Obviously, in the Situation in the Republic of Kenya an application of the gravity test led to a decision to proceed with the prosecution, whereas the OTP has decided not to proceed in the Situation in Iraq.

In the situation of Kenya, relevant factors to making a determination of sufficient gravity included the scale of the crimes “(1,200 persons allegedly killed, at least 1000 reported rapes and 450,000 persons displaced) and the nature of the post-election violence, which resulted in large scale killings of civilians, rape and other forms of sexual violence, serious injury and forcible displacement; while there occurred widespread looting and wanton destruction of residential and commercial areas in six out of eight Kenyan regions, including the country’s most populated areas.” In reference to the manner of the commission of the crimes, the Office highlighted that “in many instances, the crimes were organized and planned within the context of a widespread and systematic attack against selected segments of the Kenyan civilian population, based on ethnicity and/or presumed political affiliation [and] Perpetrators often displayed particular cruelty by cutting off body parts, hacking or burning civilians to death, or using gang rape and general mutilation.” In looking at the impact of the crimes the OTP emphasized an array of results including “infection with HIV/AIDS and other sexually transmitted diseases,” the fact that “many displaced persons lost both their home and means of subsistence,” and that “the crimes also hand an impact on local communities in terms of security, social structure, economy and persistence of impunity.”18

Conversely, regarding Iraq, the OTP has concluded “the available information in relation to crimes allegedly committed by state Party nationals revealed a limited scale of conduct constituting war crimes of willful killing and inhumane treatment by members of national armed forces.” The Office has indicated that while it was declining to open an investigation, it “could revisit its assessment in the light of new facts or evidence.”19

V. Conclusion

An interpretation and application of the criteria for determining ‘gravity’ does not prima facie lead to the inevitable conclusion that only investigations against African nationals will proceed before the ICC. Of course, application of these criteria doesn’t exclude Africa nationals, but neither should it exclude nationals from other States. The fundamental issue is the level of information and evidence available to the OTP in making their determination of the ‘gravity’ of crimes within a given situation. Without sufficient evidence, the Office is unable to make a determination on whether there is a reasonable basis to proceed with an investigation and for the Court to determine that an arrest warrant should be issued under Article 58.

In conclusion, an analysis of the internal policies of the OTP does not give rise to allegations of overt bias towards Africa, rather the Office is confined to working within the scope of evidence available to it. In order dispel the allegation of bias States Parties and other actors should work together in assisting the OTP in its evidence gathering to allow it to proceed with investigations outside of the African continent.

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

  1. 1.

    The ICC is currently dealing with 18 cases in 8 situations. Those situations are all in the African continent: Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic; the Republic of Kenya; Libya; Côte d’Ivoire; Mali.

  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, July 17 1998, UN Doc. A/CONF.183/9, Preamble. The Statute entered into force on 1 July 2002.

  3. 3.

    ICC OTP, Paper on some policy issues before the Office of the Prosecutor (September 2003), available online. Archived, [hereinafter Policy Issues].

  4. 4.

    Id. at 7.

  5. 5.

    FIDH, The Office of the Prosecutor of the ICC—9 Years On: Analysis of the Prosecutorial Strategy and Policies of the Office of the Prosecutor (2003-2011), Recommendations to the Next ICC Prosecutor (December 2011), available online. Archived.

  6. 6.

    ICC OTP, Report on Prosecutorial Strategy 4 (September 14, 2006), available online. Archived, [hereinafter Prosecutor Report].

  7. 7.

    Id. at 5.

  8. 8.

    Id.

  9. 9.

    FIDH Report, supra note 5, at 10; “This policy also means that the Office selects a limited number of incidents and as few witnesses as possible are called to testify. This allows the Office to carry out short investigations and propose expeditious trials while aiming to represent the entire range of criminality.” Prosecutor Report, supra note 6.

  10. 10.

    Policy Issues, supra note 3, at 7.

  11. 11.

    Id.

  12. 12.

    ICC OTP, Policy Paper on Preliminary Examinations, Draft 7 (October 4, 2010), available online. Archived. [hereinafter Policy Paper].

  13. 13.

    Prosecutor Report, supra note 6, at 5.

  14. 14.

    Policy Paper, supra note 12, at ¶ 70.

  15. 15.

    Id.

  16. 16.

    Id. at ¶ 70.

  17. 17.

    Id. at ¶ 69.

  18. 18.

    Id. at ¶ 71.

  19. 19.

    Id. at ¶ 72.

A Positive Impact Derived from ICC Investigations in African Countries: Catalyzing the Development in Domestic Legal Systems

Introduction

The International Criminal Court (ICC) has received much criticism about the Office of the Prosecutor’s (OTP) focus on African countries as, since the ICC’s establishment in 2002, all of the cases currently before the Court are against Africans and for crimes committed in Africa.1

Many African countries have not been able to appropriately deal with the atrocities, partly because they lack well-developed legal systems that would help guide the prosecution for grave human rights violations. For example, the Central African Republic’s (CAR) Court of Appeal, the highest judicial body in the country, recognized the inability of domestic courts to effectively investigate and prosecute war criminals,2 and the Democratic Republic of the Congo’s (DRC) government acknowledged that its legal system was not capable to properly deal with the criminal responsibility relating to the Bogoro massacre.3 ICC’s investigations and the principle of complementarity, however, have pushed these countries to develop their domestic legal systems in order to prosecute those responsible for atrocities.

Hence, regardless of criticism about the Court’s Africa bias, this comment proposes that there is at least one good result deriving from the ICC’s concentration on situations in Africa because, through the implementation and practice of complementarity, the ICC appears to have catalyzed the development of domestic legal systems in these countries to address mass atrocities. Part I briefly discusses how many African countries have not been able to prosecute those who are responsible for human rights abuses. Part II explains the principle of complementarity and its potential catalytic effect. Finally, Part III examines these catalytic effects in countries under ICC investigation.

I. Historically, Many African Countries have been Unable to Prosecute those Responsible for Human Rights Abuses

Many African countries lack the capacity to engage in prosecution of those responsible for grave human rights violations on their own.4 Therefore, impunity in these countries has largely prevailed. As the ICC’s senior legal adviser (an African) has stated: “No other continent has paid more dearly than Africa for the absence of legitimate institutions of law and accountability, resulting in a culture of impunity.”5

Some countries have explicitly acknowledged their inability to prosecute human rights abuses. For example, the Court of Appeal in CAR recognized the domestic courts’ inability to effectively investigate and prosecute war criminals.6 Furthermore, the DRC’s government acknowledged its inability to investigate and prosecute charges related to the Bogoro massacre.7 For others, a brief look at the history demonstrates the inability. For example, Kenya has suffered cycles of election violence, especially in the 1990’s when large-scale violence regularly accompanied its general elections.8 However, Kenya has not succeeded in brining those held accountable to justice.9

The inability to prosecute perpetrators accused of committing grave human rights violations stems at least partly from lack of resources and expertise. There are numerous factors that have played a role, like limited access to relevant human rights documents, including the difficulties to interpret these documents, lack of adequate case reporting, both domestically and internationally, attitudes of judicial officers and their lack of exposure to international human rights law, and lack of access to justice due to high cost of litigation and political pressures, among others.10

II. The Principle and Effect of Complementarity: ICC Investigation Can Act as a Catalyst

The ICC’s investigation can have a significant effect in domestic legal system, because of its capability to act as a catalyst for legislative change and the building of capacity in domestic courts.11 The OTP has also recognized the ICC’s potential to act as a catalyst, stating in its Prosecutorial Strategy objectives of 2009-2012 that the preliminary examination phase “offers a first opportunity for the Office to act as a catalyst for national proceedings.”12

One of the strong forces behind this catalytic effect is the principle of complementarity. Based on the , national courts have a primary right to investigate and prosecute cases of mass atrocities, as both the Preamble and Article 1 state that the ICC’s jurisdiction “shall be complementary to national criminal jurisdictions.”13 The ICC has jurisdiction only if the state with original jurisdiction is “unwilling or unable genuinely to carry out the investigation or prosecution.”14 The previous Chief Prosecutor, Luis Moreno-Ocampo, also recognized the importance of complementarity and its potential positive effect on domestic prosecutions and noted that “an absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”15

Therefore, national courts are meant to maintain their jurisdiction, absent particularly defined circumstances articulated in Article 17 of the Rome Statute, as when national courts do not fulfill their obligation of trying those accountable. Thus, the principle of complementarity should encourage national governments to undertake prosecution for human rights violations so as to challenge admissibility or even preempt investigations against their nationals by the ICC.16

In evaluating whether the ICC investigation has made a difference for domestic justice mechanisms in such regard, it will be helpful to look at the steps that the countries have taken to develop their justice mechanisms so as to deal with mass atrocities. Some of the most important factors to consider would be making steps to establish a neutral domestic system by which to try international crimes as defined in the Rome Statute, and to enact domestic legislation to implement the Rome Statute of the ICC into domestic law.17

III. Examples of Catalytic Effects in Countries Under ICC Investigation

A. Libya, Kenya, Sudan

The investigations in both Sudan and Libya were opened as a result of a UN Security Council referral and Kenya’s investigation was opened under the prosecutor’s proprio motu powers. As such, all of the three countries have had a strong desire to avoid the ICC’s jurisdiction and challenge the admissibility of the cases to the Court. Therefore each of them have taken steps to advance their domestic legal systems in order to try to prosecute those responsible.

Libya is dedicated to domestically prosecute those accountable for atrocities committed during the Gaddafi era. UN Human Rights Council acknowledged in a Report of the International Commission of Inquiry on Libya that Libya has conveyed a commitment to human rights and has taken “positive steps to establish mechanisms for accountability” and is “gradually restoring the judiciary by reopening courts and recalling judges.”18 For example, the Report noted that there has been a proper development in the administration of criminal proceedings “against 41 Gaddafi loyalists accused of crimes during the conflict” and commended Libya for the steps taken in the legal protection of human rights by establishing the National Council for Civil Liberties and Human Rights which “has authority to receive complaints on violations of human rights and to file cases in court.”19

Moreover, Libya has made considerable effort in challenging the admissibility of the case of Saif al-Islam Gaddafi and Abdullah al-Senussi, and its admissibility challenge pursuant to Article 19 of the Rome Statute is currently before the pre-trial chamber.20 Based on its submissions to the Court, Libya has taken considerable steps to ensure an adequate domestic trial for the accused. For example, it highlighted the independence of the Libyan judiciary and noted that this independence and impartiality was emphasized in the Libyan Constitutional Declaration of 2011.21 Furthermore, Libya stressed that its fair trial guarantees are similar to those stated in the Rome Statute and noted that its Constitutional Declaration of 2011 has a specific provision upholding human rights and freedoms, as well as a segment that is entirely dedicated to Judicial Guarantees.22 So, Libya has made substantial efforts to develop its domestic legal system in hopes to try the cases currently under consideration in the ICC.

In Kenya, the cycle of unprosecuted election violence has supported the culture of impunity.23 Only after the 2007 election violence steps were made to break the cycle of impunity, mainly because of the existence of the ICC and its investigative powers.24 For example, the government appointed a Commission of Inquiry into Post Electoral Violence (Waki Commission), which recommended the creation of a special tribunal with international features to try those most responsible for the violence.25 Furthermore, in order to enforce the creation of the tribunal, the Commission generated a sealed envelope with the list of leading suspects and accompanying evidence to be handed to the ICC in case the government failed to create the tribunal.26 In 2008, Kenya’s Parliament also implemented the International Crimes Act to incorporate the Rome Statute into domestic law.27

In addition, soon after the Waki Commission report became available, the government took steps to implement the report’s recommendation. In order to set up a special tribunal, efforts were made to pass a bill in Parliament. Parliament voted on the bill on three separate occasions without success. However, the government promised to prosecute those responsible in national courts, rather than a special tribunal. Likewise, Kenya’s 2010 Constitution has a potential to offer support for such prosecution. For example, the new Constitution contained provisions for judicial reform and the vetting of judges and in 2012 these provisions were passed in Parliament.28 Therefore, despite some setbacks, Kenya has made efforts to develop its legal system to domestically prosecute those responsible.

Sudan has also made steps for domestic prosecution. One day after the ICC prosecutor announced an opening of investigation into the events in Darfur, the Sudanese government established the Special Criminal Court on the Events in Darfur (SCCED) in order to show the government’s willingness and capacity to prosecute people domestically.29 In addition, Sudan established two additional chambers for the SCCED and formed special investigative committees to administer the undertakings of SCCED.30 Also, a new special prosecutor for Darfur and senior legal advisors in each of the Darfur states were appointed to investigate crimes that occurred since 2003, and the new prosecutor has apparently completed an investigation of charges against Ali Kushayb, one of the individuals subject to an arrest warrant at the ICC.31 However, the government’s genuineness is suspect as there has been ineffectiveness in prosecuting and convicting those responsible.32 Interestingly, the court in Sudan used the Rome Statute as the operative law for the first time in its proceedings, regardless of the fact that Sudan has not ratified the Statute.33 Furthermore, efforts were made to reform Sudan’s criminal code, and the government passed amendments to the code in 2008 to incorporate international crimes such as war crimes and crimes against humanity to its criminal code.34 So, the use of the Rome Statute in Sudan’s domestic proceedings, as well as its legal reform, is a positive step towards proper trials for grave human rights violations.

B. Uganda, DRC, CAR

Uganda, DRC, and CAR referred the situation in their respective countries to the ICC. However, regardless of the self-referrals, these countries have also taken steps to develop their domestic legal systems in order to prosecute those accountable. One of the reasons for these developments in domestic measures is a preparation to potentially challenge complementarity, as well as to avoid future ICC investigations.35

Uganda, as a result of the ICC’s involvement, started to implement a mechanism for domestic prosecution of the international crimes enumerated in the Rome Statute.36 The interest in national prosecutions grew during the Juba peace talks as an alternative to the ICC prosecution. As a result, in July 2008, Uganda set up its own War Crimes Division (WCD) in order to assert jurisdiction over Rome Statute crimes as well as to build national capacity.37 Furthermore, in 2010, Uganda adopted the International Criminal Court Act, thereby incorporating the Rome Statute into Ugandan law. So, currently the WCD declares that it is set up “[t]o try genocide, crimes against humanity and war crimes, as well as terrorism, human trafficking, piracy, and any other international crime defined in Uganda’s 2010 International Criminal Court Act, 1964 Geneva Conventions Act, Penal Code Act, or any other criminal law.”38 Therefore, other than the constraints placed on the Court by the Ugandan Amnesty Act of 2000, Ugandan domestic legal system has now jurisdiction over grave human rights violations as laid out in the Rome Statue.39 Hence, Uganda has made substantial steps to enhance its capacity to domestically try those responsible for mass atrocities.

Furthermore, after DRC referred the situation in its country to the ICC for investigation, the DRC military courts launched their own prosecutions for war crimes and crimes against humanity. Significant judicial reform efforts were also undertaken because key Congolese government figures made efforts to assert primacy over the ICC.40 As a result, domestic military courts convicted a number of people. For example, in 2006 forty-eight soldiers were convicted for crimes against humanity in the Equateur Province.41 Moreover, in February 2012 perpetrators were promptly brought to justice in South Kivu military court, where nine officers were sentenced to imprisonment for crimes against humanity committed during an attack on Fizi town in January 1st.42 In all these cases, Congolese military courts used Rome Statute as the operative law and basis for convictions.43 In contrast, prior to the Rome Statute, the domestic law in DRC offered only very limited bases for international crimes prosecution.44

In addition, DRC has made efforts to implement the Rome Statute, and the Implementation Bill was introduced to the Parliament in 2008.45 The Rome Statute was not implemented at that time but a new bill was introduced at the National Assembly in September 2012, in order to “bring the DRC into conformity with the Rome Statute and allow more efficient and coherent domestic prosecutions of international crimes.”46 Therefore, the ICC’s investigation has had catalytic effect in the DRC, since it is unlikely that such development in the domestic legal system would have happened without the investigation.47

In addition, the ICC investigation in CAR appears to have been a factor for CAR authorities to commit to holding those responsible for crimes to account and to raise awareness of crimes.48 While no domestic prosecutions have taken place as of yet, the CAR legislators are determined to make a difference in their domestic legal system. For example, a revision was made to the Penal Code and Procedural Penal Code in September 2009, containing provisions on genocide, crimes against humanity, war crimes, and general principles of international criminal law.49 Furthermore, the government has made plans to implement several projects to strengthen the judicial system and facilitate the access to justice.50 Therefore, CAR’s domestic legal system’s ability to deal with cases involving human rights violations has improved.

Conclusion

Based on the examples above, in countries where ICC has proceeded with the investigation, efforts have been made to improve domestic justice mechanisms for serious international crimes.51 First, countries have attempted to hold perpetrators accountable in order to keep their cases in national courts.52 Furthermore, steps have been made to implement the Rome Statute in order to make it applicable within the domestic legal system.

This analysis makes clear that the ICC can meaningfully influence domestic governments. Indeed, without the involvement of the Court in these countries, it is improbable that the domestic courts would have originated proceedings or that there would even have a basis for human rights violation prosecutions in these countries’ domestic law. Therefore, regardless of some critics, there is at least one good result deriving from ICC’s concentration on situations in Africa, as it has helped to push forward the development of domestic legal systems in these countries.

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

  1. 1.

    For example, critics note that the OTP’s failure to open an investigation into crimes allegedly committed in other territories or by nationals of other States has weakened support for the ICC in African countries and given the impression that the ICC is partisan.

  2. 2.

    International Criminal Court Opens Probe into Central African Republic, UN News Centre (May 22, 2007), available online.

  3. 3.

    Marieke Wierda, Stocktaking: Complementarity, ICTJ Briefing (May 2010), available online.

  4. 4.

    See Anna Triponel & Stephen Pearson, African States and the ICC: A Silent Revolution in International Criminal Law, 12 J.L. & Soc. Challenges 65 (2010); Exclusive Interview: Tom Ginsburg, ICC Observers Project in Debating International Justice in Africa 201 (2010).

  5. 5.

    Max du Plessis, The International Criminal Court and its work in Africa: Confronting the Myths, Institute for Security Studies, Paper 173, 2 November 5, 2008, available online. Archived.

  6. 6.

    International Criminal Court Opens Probe, supra note 2.

  7. 7.

    See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ¶ 89 (Sept. 25, 2009), available online.

  8. 8.

    Stephen Brown & Chandra Lekha Sriram, The Big Fish Won’t Fry Themselves: Criminal Accountability for Post-Election Violence in Kenya, 111 African Aff. 244, 247 (2012).

  9. 9.

    See id.

  10. 10.

    Magnus Killander & Horace Adjolohoun, International Law and Domestic Human Rights Litigation in Africa: An Introduction, in International Law and Domestic Human Rights Litigation in Africa 18 (Magnus Killander ed., 2010).

  11. 11.

    Janine Natalya Clark, Peace, Justice and the International Criminal Court, 9 J. Int’l Crim. Just. 521, 538 (2011).

  12. 12.

    ICC OTP, Prosecutorial Strategy 2009-2012, ¶ 38 (February 1, 2010), available online. Archived.

  13. 13.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9, at Preamble, Art. 1.

  14. 14.

    Id. at art. 17(1).

  15. 15.

    ICC OTP, Paper on some policy issues before the Office of the Prosecutor (September 2003), available online. Archived.

  16. 16.

    See Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985, 1004 (2007).

  17. 17.

    See generally, Katharine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21 (2010).

  18. 18.

    UNHRC, Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68, 2, Mar. 2, 2012.

  19. 19.

    Id. at 20.

  20. 20.

    Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ICC-01/11-01/11, May 2012, available online.

  21. 21.

    Id. at ¶ 53. But see Libya: Establishing the Rule of Law, Middle East and North Africa Programme: Libya Working Group Meeting Summary (May 2012) (stating that to try Saif Al Islam under the current system might be damaging for the Libyan judiciary).

  22. 22.

    Application on behalf of the Government of Libya, supra note 20, at ¶ 56.

  23. 23.

    Christine Bjork & Juanita Goebertus, Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya, 14 Yale Hum. Rts. & Dev. L.J. 205 (2011).

  24. 24.

    See Selling Justice Short: Why Accountability Matters for Peace, Human Rights Watch Report 105 (2009).

  25. 25.

    Id.

  26. 26.

    Brown & Sriram, supra note 8.

  27. 27.

    The 2009 Annual Report on Kenya, Amnesty International (2009), available online.

  28. 28.

    Brown & Sriram, supra note 8; The 2012 Annual Report on Kenya, Amnesty International (2012), available online.

  29. 29.

    Selling Justice Short, supra note 24, at 102.

  30. 30.

    Benson Olugbuo, Positive Complementarity and the Fight Against Impunity in Africa, in Prosecuting International Crimes in Africa 263 (Chacha Murungu & Japhet Biegon eds., 2011).

  31. 31.

    Rhetoric vs. Reality: The Situation in Darfur, Human Rights Watch Report (Dec. 2008), available online.

  32. 32.

    Selling Justice Short, supra note 24, at 103; Wierda, supra note 3.

  33. 33.

    Selling Justice Short, supra note 24, at 103.

  34. 34.

    Id.

  35. 35.

    See, e.g., Michael Otim & Marieke Wierda, Uganda: Impact of the Rome Statute and the International Criminal Court, ICTJ Briefing, 4 (June 2010).

  36. 36.

    Marshall, supra note 17, at 25.

  37. 37.

    Otim & Wierda, supra note 35, at 3.

  38. 38.

    The International Crimes Division Mandate, Uganda Coalition on the International Criminal Court (March 13th, 2012), available online.

  39. 39.

    Id.

  40. 40.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J., 54, 106 (2008).

  41. 41.

    Id.

  42. 42.

    The 2012 Annual Report on the Democratic Republic of the Congo, Amnesty International (2012), available online.

  43. 43.

    Id.

  44. 44.

    See Federico Borello, A First Few Steps: The Long Road to a Just Peace in the Democratic Republic of the Congo, ICTJ, 20 (2004), available online.

  45. 45.

    Wierda, supra note 3, at 3.

  46. 46.

    Round-Table on the Sensitization and Mobilization of MPs for Domestic Prosecutions and Access to Justice for Victims in the DRC, Kinshasa, Parliamentarians for Global Action (Nov. 1st, 2012), available online.

  47. 47.

    See Burke-White, supra note 41.

  48. 48.

    Sara Darehshori & Elizabeth Evenson, Peace, Justice and the International Criminal Court, in Debating International Justice in Africa 35 (2010).

  49. 49.

    Central African Republic, Parliamentarians for Global Action, available online, (last visited Mar. 6th, 2013).

  50. 50.

    Parliamentary Consultations on the Rule of Law and Justice in the Central African Republic, Parliamentarians for Global Action (Oct. 2011), available online.

  51. 51.

    Selling Justice Short, supra note 24.

  52. 52.

    Id.

DOES ARTICLE 98(1) OF THE ROME STATUTE APPLY TO AFRICAN NON STATE PARTIES WHEN EUROPE DANGLES THE EXECUTIONERS ROPES?

The issuance of Arrest warrant against Al-Bashir notwithstanding the fact that it emanated from an investigation requested by the SC is contrary to customary international and the Rome Statute itself by a joint construction of Article 12, 98(1) and even 99 of the Rome Statute. Even though jurisdiction of the ICC can be activated by a referral from the Security Council, the jurisdiction acquired therefrom must be consistent with international by virtue of customary international law or a state consenting by treaty. Any other prosecutorial powers conferred or alleged to be conferred under Article 13 of the Rome Statute would be contrary to international. I am of this view based on a harmonious interpretation of the Rome Statute. Article 12 which is titled Pre-condition to jurisdiction, means that there cannot or should not be jurisdiction till at least one of the limbs of that Article is play. If there is no “pre” there should be no “jurisdiction”. Secondly, Article 98(1) of the Rome Statute that:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

Article 12 and 98 cannot be said to be less important than the referral powers of the Security Council, because Statutes should be given a harmonious interpretation as long as it does not infringe on the Preamble of the UN and sovereignty of States...Question is, will the Security Council refer any European Country or the United States....Or will Bush be subject to the jurisdiction of the ICC for war crimes in Iraq??? I think not

The disturbing trend about the ICC with regard to Africa is its willingness to prosecute in Africa even when the Pre-Condition to Jurisdiction provisions have not been complied with. The most important norm in international law is sovereignty of States which is protected in Article 12 of the Rome Statute, in fact we are informed that the Security Council can override State Sovereignty by requiring an investigation into a State that is not a signatory to the ICC. If this is the case, then titling Article 12 of the Rome Statute as Pre-Condition to Jurisdiction is of no consequences. Article 27 of the Statute provides that official capacity is of no consequence to the jurisdiction of the Court, however that should be read to mean that a State that has ratified the Statute has decided to waive head of state immunity with regard to the ICC. Professor Akande opinion is succinct on this (Even though in a recent article he seems to have flipped the coin with regard to the arrest warrant on Al-Bashir) that:

The concern of State parties to the said article was recognised when the President of France and prime Minister requested the Conseil Constitutionnel to consider whether the ratification of the Rome State would involve an amendment to the French Constitution, in its finding on the immunity of officials, the council observed that:

The Council found that Article 27 of the Statute, according to which criminal responsibility exists irrespective of official capacity, conflicts with several constitutional provisions concerning the immunity of public officials…

However, despite Article 27, France still ratified the Statute, this speaks volume about the effect of Article 98(1) of the Rome Statute, which makes Article 27 wasted ink on the Rome Statute.

The first conclusion would be that the two Articles are in conflict with each other, but in fact they are not. The former says that, the ICC would not be stopped from going on with a Prosecution because someone is an Official, the latter, says however, the ICC would not hold a State to have failed in its State responsibility if they refuse to surrender a Head of State. However, if the decision in Loubna El Ghar v. Libyan Arab Jamahiriya is to be used as a yardstick, the States who are signatories to the ICC can surrender each other’s Heads of State, as States are the only police of the ICC. Akande has taken time to explain this position adopted by this writer thus:

Although it is clear that Article 98(1) applies to immunities enjoyed by officials of nonparties, it is less clear whether that provision also refers to immunities ordinarily enjoyed by officials of ICC parties. The question is whether Article 98(1) prevents the Court from requesting that one state party surrender the official of another state party present on the territory of the first, where the official would normally have immunity under international law.

If this be the case it is curious that Professor Akande himself agrees that the arrest warrant against Al-Bashir is regular while Tony Blair still roams freely and even works for the UN. I am certain that President Bush would be totally immune from prosecution anytime anyday as the US is non party state.

Did some African states ratify the Rome Statute to marginalize political competitors?

Summary

Several theories attempt to explain why leaders of nations whose nationals have been indicted decided to ratify the Rome Statute, ceding elements of sovereignty and putting themselves at risk of prosecution. Some of these theories fail as predictive tools, and other theories tell an incomplete story. Individuals in democracies with strong accountability institutions are effectively shielded from ICC prosecution by (among other reasons) the possibility of recourse to a legitimate domestic judicial system, but unaccountable autocracies and democracies with weak accountability institutions do not provide that sort of protection. So why have these states accepted the jurisdiction of the ICC? This paper analyzes the States Parties whose nationals have been indicted by the Court: Côte D’Ivoire, Uganda, the Democratic Republic of the Congo, and Kenya. The domestic political situation of those states at the time of ratification suggests that leaders in those countries—some of whom may have been prosecutable by the ICC based on their alleged complicity in the situations—may have pursued ratification of the Rome Statute in order to marginalize domestic political competitors. (Sudan and Libya, the other two states whose nationals have so far been indicted, are not States Parties to the Rome Statute. The ICC has opened an investigation in Mali but has not indicted any individuals yet.) Although records of any debate about ratification are scant for these states, this framework is supported by the nature of the internal politics of each state leading up to ratification and the list of indictees from each state. This framework suggests that leaders engaged in a rational choice analysis regarding ratification rather than adhering to a newly emerging international norm system.

I. Introduction

Lawyers, diplomats, and academics tell many origin stories about the Rome Statute.1 Some, for example, focus on the role of non-governmental organizations (NGOs) in expanding the Statute’s list of prosecutable crimes, and others center on the international power dynamics that shaped the scope of the Statute. Because the negotiations involved so many states, NGOs, and individuals with different interests and goals, it is impossible to tell just one story about the creation of the ICC.

For ICC observers, however, one question remains particularly prickly: Why did states agree to ratify the Rome Statute? After all, the Rome Statute requires states to cede a good amount of their sovereignty in order to create a court meaningfully empowered to investigate and prosecute criminals. Whether the ICC would tread too deeply on states’ sovereignty proved to be a key issue of contention during the Rome Statute negotiations. It was a dealbreaker for many states who felt that preserving sovereignty was more important than participating in the Court. The United States, for example, signed the Rome Statute under President Bill Clinton—whose administration tried cautiously, and ultimately unsuccessfully, to persuade American legislators to support the Rome Statute. The government under President George W. Bush subsequently informed the Assembly of States Parties that the government had no intention of ratifying the Rome Statute, largely motivated by that administration’s general suspicion of powerful international bodies, which were seen as threats to the United States’ unique brand of sovereignty.2 Another permanent member of the United Nations Security Council (UNSC), Russia, also signed the Rome Statute but has not ratified it. China, a third member of the UNSC, has neither signed nor ratified it. The United Kingdom and France are the only States Parties to the Rome Statute with permanent seats on the UNSC.3 Dissent within the P5 members of the UNSC is a microcosm of the disagreement that characterized the Rome Statute negotiations.

Given the nature of the negotiations, it is not surprising that concerns over sovereignty have formed the dominant narrative explaining states’ reluctance to accede to the Rome Statute. But as always in international politics, matters are not so simple. There are other concerns at play. Individuals in democratic states with strong accountability institutions might have a de facto risk of prosecution of zero, since the Rome Statute mandates deference to domestic judicial systems when they present a legitimate alternative to ICC proceedings. In addition, states with close, friendly relationships to the permanent five veto-wielding members of the UNSC might be shielded by the UNSC’s ability to defer investigations under Article 16 of the Rome Statute. Wealthy Western democracies don’t have much to lose by signing the Rome Statute.

Among unaccountable autocracies and poor democracies with weak domestic accountability institutions, however, the benefits of ratification4 are less clear. These states, many of which are located in Africa, don’t generally have close ties to the UNSC permanent members of the sort that would protect them under Article 16, and their domestic judicial systems are unlikely to inspire an allowance of complementarity. The creation of the International Criminal Tribunal for Rwanda (ICTR) put the continent on notice that the international community was willing extend its project of justice to Africa. African states with poor domestic accountability mechanisms are low-hanging fruit for a new court looking to establish its legitimacy. So why should African states have ratified the Rome Statute in the first place? Several considerations likely pushed states one way or another. Poorer states might have seen the Rome Statute as a key to unlock greater flows of official development assistance (ODA), even while intellectuals and governmental advisers in the Global South might have seen the ICC’s mandate as an extension of the West’s neocolonial projects. NGOs might have pushed states one way or another in order to further their agendas. On the most individual level, leaders alleged to have committed war crimes, crimes against humanity, or genocide likely had a pressing problem with the Rome Statute: the risk that they themselves would be prosecuted.

This comment argues that some states engaged in a simpler rational choice analysis regarding ratification: whether ratification would marginalize domestic political competitors and benefit the sitting government. Internal politics, just as much as international power dynamics, provide an important framework for understanding whether and why a state ratified the Rome Statute. After all, no state government’s views are monolithic except in the most unaccountable of autocracies. (Most of these states—for example, Libya in the late 1990s and early 2000s, and North Korea—aren’t signatories to the Statute, at any rate.) Each state dealt with different internal issues. For states without a de facto guarantee of immunity from the ICC’s grasp, ratifying the Rome Statute was an extraordinarily grave act. This comment uses the framework of domestic politics to understand the decision to ratify the Rome Statute in states whose nationals have been indicted by the ICC—the Democratic Republic of the Congo, the Republic of Kenya, the Republic of Uganda, and the Republic of Côte D’Ivoire. (The ICC has indicted the nationals of two other states, the State of Libya and the Republic of Sudan, but these states are not States Parties to the Rome Statute.) Although several theories have been proposed to understand why any state would accede to the ICC, they do not provide a full answer to the question of why states whose nationals have been indicted accepted the jurisdiction of the ICC in the first place. These states, unique among States Parties, have actually been subjected to ICC investigations, so analyzing their motives for ratification is less theoretical or predictive, and more tangible and salient, than a general analysis of why merely any state would accede to the ICC. With the ICC being accused by several observers of having a bias toward Africa—all eight of the court’s investigations are located in Africa—it is important to understand why states with open investigations decided to welcome the ICC to its borders at all.

II. Theories

Several commentators have attempted to answer the question of why any state would agree to accede to the ICC at all. Some approach the question using rational choice analyses, looking at the benefits and drawbacks of ratification from the perspective of sitting leaders, and others see Rome Statute ratification as the extension of newly emerging norms in the international system. Arguments that focus on norm promulgation either generalize based on idealized scenarios or ignore real decision-making processes that went into ratifying not just the Rome Statute but any international treaty that involved the cession of elements of sovereignty to an international body. This comment argues in favor of a rational choice analysis, and the three theories that are presented below are based off of rational choice analyses as well.

A. Credible Commitments Theory

Beth Simmons and Allison Danner proposed a theory of accession based on the idea of “credible commitments”, arguing that leaders of so-called unaccountable autocracies—autocracies with weak or nonexistent domestic accountability institutions—will use ICC accession to rationally tie their hands in order to strengthen their bargaining chips when negotiating with opponents for the end of internal conflicts.5 In other words, unaccountable autocrats see Rome Statute ratification as a way to signal their genuine commitment to ending a conflict: with legitimate third-party intervention an overhanging possibility, the autocrat is (in theory) pushed toward reaching a faster and more palatable solution. Ratification is a grave act, since it opens up not only a leader’s opponents to prosecution, but also the leaders themselves. It is a formal commitment made to the international community as well as an informal, expectation-raising commitment made to a state’s domestic population. The authors write:

Governments may therefore have motives to end the cycle of civil violence, but they may have no way to make a promise to do so that any opposition group or even the general public will believe will last longer than the next security threat....The ICC offers a solution by raising the government’s expected ex post costs of reneging.6

Applying a credible commitments theory, Simmons and Danner predict that the Rome Statute will see its highest accession rates among highly accountable democracies and violent, unaccountable autocracies. Their empirical analysis largely bears their theory out: violent autocracies are more than three times more likely to ratify the Rome Statute than nonviolent autocracies, and peaceful democracies—for which the risk of ICC investigation is effectively nil, whether due to their relatively better human rights records or due to strategic relationships—and unaccountable autocracies have similarly high rates of ratification.

But taken into context, the predictions made by credible commitments theory do not neatly match the situations currently in front of the ICC. Libya and Sudan, two recently violent unaccountable autocracies, have not ratified the Rome Statute, despite the prediction and evidence that states of their type would be more likely to ratify. The authors’ results predict that a democratic country that has experienced violence within the five years prior to ratification is significantly less likely to pursue ratification than other types of states, but Uganda, Kenya, and Côte D’Ivoire have all accepted the jurisdiction of the Court despite having had violent conflicts within five years of ratification. Simmons and Danner’s work sheds light on actual statistical correlations, but it is a poor predictor of ratification patterns among states that have actually undergone ICC investigations.

B. Cynical Commitments

Credible commitments are contrasted with cynical commitments, through which a state ostensibly makes an overture toward international norm but has no intention of supporting compliance.7 A state’s mere signature of a treaty like the Rome Statute is vulnerable to accusations of cynical commitments: signing the Rome Statute entails no legal obligations and is often merely an empty signaling tool. Sudan, for example, signed the Rome Statute but later expressed no intention of ratifying it after its sitting head of state, Omar al-Bashir, was indicted. The United States signed the Rome Statute on the last possible day in order to remain party to the negotiations, and reneged on its signature just two years afterward under a president more hostile to international institutions.

Ratifying the Rome Statute, on the other hand, is less likely to be a cynical move, especially for African states. Human rights treaties, unlike the Rome Statute, can fall prey to cynical commitments: they bind a state to broad commitments to millions of people in aggregate—so the task of gathering evidence for violations on a significant scale is difficult—and the enforcement mechanisms for such treaties are weaker than the ICC’s. Human rights treaties are thus often co-opted as signaling tools rather than genuine expressions of norm adherence.8 In contrast, a treaty creating a criminal court has more bite. The International Criminal Tribunals for the former Yugoslavia and Rwanda put wartime offenders on notice that the international community was indeed willing to create courts with meaningful prosecutorial power in the wake of war crimes.

For a court looking to establish its legitimacy, pursuing situations in African States Parties would have presented an easy choice. African states are less likely to have strong domestic accountability mechanisms of the kind that could support a claim of complementarity, unlike, for example, some Asian countries or South American countries.9 African states are less likely to have close relationships with the P5 states, so Article 16 deferrals are not an option, unlike, for example, European and other Western states. African states are less likely to possess the sort of strategic power to evade an investigation. African states would have thus been least likely to view ratifying the Rome Statute as an opening for cynical commitments, unless they were acting deliberately out of line with their interests. Cynical commitments can easily be applied to signatures: 18 states have signed but not ratified the Rome Statute; many of these states, such as Sudan, Russia, Iran, and Zimbabwe, are perennially criticized by human rights observers. But a cynical commitment theory likely does not apply to ratification patterns.

C. Political Opponents Theory

Simmons and Danner, in their piece about credible commitments, suggest an alternate explanation for ratification in some states: that leaders ratify the Rome Statute in order to marginalize political opponents.10 Barry Hashimoto elaborated on the theory by engaging in a series of statistical analyses of the political impact of ratification on sitting leaders’ tenures, writing:

In many states, political rivals aspire to take leaders’ jobs and undermine their campaigns to expand executive power, secessionists weaken the state’s hold on territory, terrorists reveal the state’s inability to protect its subjects, and organized criminals appropriate tax revenue and compromise the state’s authority....Since 1998, leaders have been able to accept the court’s jurisdiction, trading off self-exposure to prosecution against the court’s ability to marginalize those threats.11

The crux of Hashimoto’s analysis rests on the political stability granted to leaders upon ratification. His empirical study revealed that ruling under the ICC’s jurisdiction makes leaders 1.4% less likely to lose office and 2.7% less likely to face an armed civil conflict in any quarter.12

The theory on which Hashimoto’s study is based is interesting, but the results are unconvincing. The data reflect over 100 countries, all with different political characteristics and different ways in which ICC accession would affect their leadership and their state. More important, this statistical analysis is correlative, not predictive. Sitting leaders, who did not have Hashimoto’s study before them when deciding whether to ratify the Rome Statute, are unlikely to have engaged in the sort of probabilistic analysis that the study reflects. For an autocrat, staying in office—and avoiding ICC prosecution—is far too important a goal to leave it to statistical chance. Even if sitting leaders did engage in such an analysis of chance, the percentage of seat stability accrued by ratification—1.4%—is far too small an increase on which to base a grave decision like ratification.

A statistical analysis does not get an observer much closer in understanding why states would ratify the Rome Statute because these effects of ratification are so small and diffuse. A more productive approach would be to take the idea that states accept the ICC’s jurisdiction in order to marginalize political opponents and apply it to a qualitative analysis of the ratification status of states that have undergone ICC investigation. Although the statistics do not bear the theory out, this comment engages with Hashimoto’s general idea on a more specific level—that some African states accept the ICC’s jurisdiction in order to marginalize political opponents.

D. Other theories

There are other well-represented theories explaining ratification using a rational choice analysis as well, which are not dealt with in detail here. Michael Struett, for example, argues that NGOs played an outsized role in influencing states to accede to the ICC.13 Jay Goodliffe and colleagues argue that states ratify or reject the Rome Statute in order to curry favor with influential states in their geopolitical networks.14 It is possible that some states acceded to the ICC in order to unlock access to greater flows of official development assistance (ODA). Finally, Robert Pape argues that states join the Assembly of States Parties in order to balance against the soft power of the United States.15 A longer comment would be able to treat these theories in succession regarding how they relate to the eight states under ICC investigation.

III. Application

Table 1. Rome Statute timelines for states with open ICC investigations.16
State Signed Accepted Jurisd. Ratified Entry into Force
CAR Dec. 12, 1999   Oct. 3, 2001 July 1, 2002
Côte D’Ivoire Nov. 30, 1998 Oct. 1, 2003 Feb. 15, 2013 May 1, 2013
DRC Sept. 8, 2000   Apr. 11, 2002 July 1, 2002
Kenya Aug. 11, 1999   Mar. 15, 2005 June 1, 2005
Libya  
Mali July 15, 1998   Aug. 16, 2000 July 1, 2002
Sudan Sept. 8, 2000  
Uganda Mar. 17, 1999   June 14, 2002 Sept. 1, 2002

Figure 1. Map showing Rome Statute ratification status.17

World Map Showing Rome Statute Ratification Status, courtesy of Wikimedia.

Dark Green: Signed and ratified. Orange: Signed only. Gray: Neither. Light Green: Côte D’Ivoire.

The choice for six of these eight states to accept the ICC’s jurisdiction is troublesome to understand, given the sovereignty costs and potential individual costs of accession.18 Complicating matters is the lack of records about legislative or executive debate regarding ratification in these states. However, when understood in the light of the nature of each state’s domestic politics at the time of ratification, a more coherent picture emerges of Côte D’Ivoire, the DRC, Kenya, and Uganda. This comment will focus on these four states. The ICC has not yet issued any indictments for Mali, so an analysis of that state’s ratification process is not presented here. Jean-Pierre Bemba, who was indicted by the ICC for crimes committed in the Central African Republic, is included in the analysis of why the DRC (of which he is a national) ratified the Rome Statute because he is a leader of a Congolese opposition group. Libya and Sudan have not ratified the Rome Statute. Sudan’s decision to not ratify the Statute reflects its reaction to the indictment of its sitting head of state, Omar al-Bashir.

The analyses below link the decision to accept the ICC’s jurisdiction (whether by ratification or via Article 12(3)) to the domestic politics of each state at the time of Rome Statute accession. In doing so, this comment aims to draw the conclusion that the ability to marginalize internal political opponents via Rome Statute accession motivated the decision to accede. By understanding these states’ decision to accede in the context of opponent marginalization, the question of why the states ratified shifts from a focus on the international power dynamics implicated by the Rome Statute to the domestic benefits gained by accession.

A. Côte D’Ivoire

Côte D’Ivoire notified the ICC of its intention to accept the jurisdiction of the Court in April 18, 2003. The declaration, which was made by the government of Laurent Gbagbo, fell under the scope of Article 12(3) of the Rome Statute, which allows states not party to the Statute to accept the exercise of jurisdiction of the Court. The Ivorian government notified the ICC that they were willing to cooperate with the ICC in connection with crimes committed since September 19, 2002.19

That date represents the beginning of the First Ivorian Civil War, a conflict between the Gbagbo-led government and a rebel group, the Forces Nouvelles de Côte D’Ivoire (FNCI).20 The war was set off by many different catalysts, but a major source of conflict stemmed from the elections of 2000: immediately before the elections, the government passed a law excluding non-natural-born Ivorians from running in the presidential race. This excluded Alassane Ouattara, a naturalized but foreign-born candidate from the northern part of the country. Gbagbo won. The actual conflict began in September 2002, and seriously destabilized the country for five years. The government, assisted by French-led UN forces, secured peace agreements with FNCI in 2007. The process of disarmament began in late 2007. The last peace agreement signed between Gbagbo and FNCI sought for elections to be held in June 2008. Elections were not held until 2010. Gbagbo was challenged by opposition candidate Ouattara, who won the election. Gbagbo is alleged to have organized systematic attacks against Ivorians, mainly Ouattara supporters. Gbagbo was indicted by the ICC on November 23, 2011 on four counts of crimes against humanity. His wife, Simone Gbagbo, was indicted on February 29, 2012 on four counts of crimes against humanity.

The accepting of jurisdiction by Côte D’Ivoire in 2003 points persuasively to the use of the ICC as a tool to marginalize political opponents. The declaration specifically singles out September 19, 2002, the day the civil war began, as the date from which international crimes should be monitored. Although the ICC began its investigation of the situation proprio motu after the declaration, no indictments came out of that situation. But the context in which the declaration was made is clear: the government was dealing with a rapidly escalating civil war and the imminent loss of the northern part of the country to the FNCI. Côte D’Ivoire had been one of the first states to sign the Rome Statute, but the period between signing the Statute and accepting the ICC’s jurisdiction had been a time of extraordinary domestic turbulence. Gbagbo won the 2000 election against the country’s prior military ruler, Robert Guéi, but it took protests to remove Guéi from power. Gbagbo succeeded, but the government had earned the ire of Ouattara supporters. During this time, Côte D’Ivoire did not act on its Rome Statute signature. It was three years into Gbagbo’s term, but only eight months into the civil war, for the government to see it as politically expedient to accede to the ICC’s jurisdiction.

The political opponents theory works for Côte D’Ivoire on two levels: first as a tool for the Gbagbo government against the Ouattara-aligned FNCI, and second as a tool for the Ouattara government against Gbagbo. Eight years after the government first accepted the ICC’s jurisdiction, the same Article 12(3) declaration was used to indict Laurent and Simone Gbagbo. The government led by Alassane Ouattara affirmed its 2003 acceptance of the ICC’s jurisdiction on December 14, 2010, ten days after Gbagbo had been removed from office. The government drew particular notice to crimes committed since March 2004.21 March 2004 marked the withdrawal of opposition groups from the “government of national reconciliation” and a heightening of hostilities. A UN report from May 2004 implicated government officials in the ensuing violence. By drawing attention to these particular dates, Ouattara’s government was focusing the ICC’s attention on the actions of Gbagbo, now a political opponent to Ouattara, the sitting leader. In 2010 and 2011, Ouattara issued letters in support of the investigation.22 The context in which Ouattara’s government declared its support for the ICC is clear—encouraging the prosecution of a political enemy.

On February 15, 2013, the government ratified the Rome Statute. According to press releases, “a number of legal and constitutional hurdles delayed the process” of ratification.23 Because the Statute was ratified after it had already entered into force, the scope of the ratification would normally be prospective24—but since Côte D’Ivoire had entered a 12(3) declaration already, the temporal jurisdiction of the ICC was extended back to 2002.

B. Uganda

The nature of Uganda’s domestic political situation at the time of ratification also suggests that the Ugandan government used Rome Statute ratification as a tool to marginalize the Lord’s Resistance Army, a group of domestic insurgents. Uganda ratified the Rome Statute on June 14, 2002, just one month before the Statute entered into force. One year later, Uganda referred the situation concerning the Lord’s Resistance Army (LRA), an insurgent group, on December 16, 2003.25 Uganda was the second country to refer a situation within its borders to the ICC, after the DRC.

The root causes of the conflict with the LRA are complex, and the violence stretches back to 1987. The conflict flared in March 2002 when the Ugandan military launched a large offensive against the LRA in South Sudan in order to eliminate what the Ugandan government saw as a massive military and political liability and embarrassment for the country. After the Spring 2002 offensive, termed “Operation Iron Fist”, the Ugandan government believed it had eliminated the LRA threat.26 It was during this interbellum that Uganda ratified the Rome Statute. LRA counteroffensives began shortly afterward, in August 2002, and continued for several years at high levels of intensity.

The referral instrument submitted to the Office of the Prosecutor focuses exclusively on alleged crimes committed by the LRA, which is to be expected given that the government is submitting the instrument.27 However, sitting Ugandan leaders had also been implicated in possible crimes during the LRA conflict, including the president of Uganda, Yoweri Museveni. Human rights groups had alleged that Museveni was complicit in large-scale human rights violations in northern Uganda and the DRC.28 Museveni had also previously been criticized for invading and occupying the DRC during the Second Congo War: the International Court of Justice had found that Uganda was responsible for human rights violations during the Second Congo War and had ordered Museveni’s government to pay reparations to victims.29 With this record in mind and considering the risks inherent for a sitting leader who ratifies the Rome Statute, it is possible that Museveni used the self-referral of the LRA situation as a way to shield himself and other leaders from ICC prosecution and marginalize the threat posed by the LRA. By acceding to the ICC, Museveni would have received another tool with which to approach the conflict—LRA leaders would be at risk of ICC prosecution in addition to military attacks. As for the timing of ratification, ratifying the Rome Statute after Operation Iron First would have been a natural course of action for a government that believed it had fatally struck the LRA for the last time. Uganda’s military objectives did not pan out, but Museveni’s apparent strategy seems to have worked. The self-referral yielded the ICC’s first indictments: Joseph Kony, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen, and Vincent Otti, all indicted on July 8, 2005. All of these men were or are leaders of the LRA. The ICC hasn’t issued any further indictments since then.

C. The Democratic Republic of the Congo

Seven Congolese nationals have been indicted by the ICC: Thomas Lubanga, Bosco Ntaganda, Germain Katanga, Mathieu Ngudjolo Chui, Callixte Mbarushimana, Sylvestre Mudacumura, and Jean-Pierre Bemba. Bemba was indicted for crimes committed in the Central African Republic, but prior to his arrest he was a prominent opposition politician in the DRC, so he is included in this analysis. Lubanga was convicted of three counts of war crimes, and Ngudjolo Chui was acquitted in 2012 after being charged with four counts of crimes against humanity and nine counts of war crimes. Three of these indictees, Ngudjolo Chui, Lubanga, and Katanga, were indicted for their involvement in the Ituri Conflict between 1999 and 2007.30 Three other indictees, Ntaganda, Mbarushimana, and Mudacumura, were indicted for their involvement in the continuing conflict in the Kivu region of eastern DRC. Bemba was indicted for crimes committed in the Central African Republic, but he was involved in associated conflicts in eastern Congo during the Second Congo War as the head of the insurgent group Mouvement pour la Liberation du Congo.

The DRC government led by Joseph Kabila ratified the Rome Statute on April 11, 2002, squarely in the middle of the Ituri Conflict and toward the end of the Second Congo War, which formally ended in July 2003. The DRC government was engaged with rebel groups on several fronts and was failing to keep control of its territory. That the government chose to divert its attention to ratifying the Rome Statute during this time likely demonstrates that the decision to ratify was linked to the ongoing conflicts. The government formally referred the situation to the Office of the Prosecutor on April 19, 2004, and the OTP initiated the investigation soon afterward.31 The timing of the ratification and referral fit neatly into the political opponents model: the DRC pursued ratification at a time when challenges from rebel groups were at their height, during one large war and one particularly heightened regional conflict. All seven of the Congolese nationals indicted by the court are political opponents of the government.

D. Kenya

Kenya’s situation does not fit neatly into the political opponents model. The Kenyan government ratified the Rome Statute much later than the other states: March 15, 2005, six years after it had signed the Statute. Records from National Assembly debates suggest that the delay was due to domestic legal and logistical hurdles, rather than any signs of noncommitment to the ICC.32 The situation in Kenya that the OTP pursued proprio motu revolved around the spate of post-election violence in 2007 and 2008, during which the government, led by Mwai Kibaki, dealt with a popular uprising after Kibaki was declared winner of the presidential election over opposition candidate Raila Odinga. The problem with applying the political opponents model is that there was no conflict in Kenya at the time of ratification, in 2005. Kenya’s government did not have a stellar human rights and freedom record, but it was ranked higher by democracy observers under Kibaki than under his predecessor, Daniel arap Moi. Unless Kibaki’s government contemplated in 2005 that there would be unrest at the time of the next elections in 2007, the government likely could not have ratified the Rome Statute with that consideration in mind. Further research is needed to more fully understand Kenya’s ratification.

IV. Conclusion

In approaching the question of whether the ICC has an unfair bias toward Africa, it is important to attempt to understand why the states whose nationals have been indicted decided to ratify the Rome Statute at all. Because the Rome Statute entails such a high sovereignty commitment and puts sitting leaders at risk of prosecution—especially in states with poor domestic accountability mechanisms—it is puzzling to attempt to understand why many states would ever ratify the Statute. However, when accepting the court’s jurisdiction is reframed as a means by which sitting leaders can marginalize political opponents and regain domestic stability, as was likely the case in Côte D’Ivoire, Uganda, and DRC, we can attempt to more clearly understand the decision to accede.

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

  1. 1.

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

  2. 2.

    See, e.g., Corrina Heyder, The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status, 24 Berkeley J. Int’l L. 650, 661 (2006), available online.

  3. 3.

    For a complete list of states’ ratification status, see Rome Statute of the International Criminal Court, United Nations Treaty Collection, available online (last visited March 7, 2013) [hereinafter Rome Statute Ratification Status List].

  4. 4.

    “Ratification” is used interchangeably with “accepting jurisdiction” and “accession” in this comment. Five states under ICC investigation had ratified the Rome Statute at the time that the investigations were initiated: CAR, DRC, Kenya, Mali, and Uganda. Côte D’Ivoire accepted the jurisdiction of the court without ratifying the Rome Statute in 2003. It ratified in February 2013 and the ratification will enter into force in May 2013. Sudan has signed the Rome Statute but has not ratified it, and Libya has neither signed nor ratified it. Both Sudan and Libya were brought under the court’s jurisdiction using an Article 13(b) UN Security Council referral.

  5. 5.

    Beth Simmons & Allison Danner, Credible Commitments and the International Criminal Court, 64 Int’l Org. 225 (2010). Working paper 2009available online. Page numbers refer to this version.

  6. 6.

    Id. at 13.

  7. 7.

    Wade M. Cole, Hard and Soft Commitments to Human Rights Treaties, 1966-2000, 24 Sociological Forum 563, 567-69 (2009).

  8. 8.

    Id.

  9. 9.

    Simmons & Danner, supra note 5 at 10, 15.

  10. 10.

    Id. at 23.

  11. 11.

    Barry M. Hashimoto, Why Do Leaders Accept the International Criminal Court’s Jurisdiction? Theory and Evidence, unpublished manuscript, at 9 (September 3, 2012), available online.

  12. 12.

    Id. at 3.

  13. 13.

    Michael Struett, The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency (2008).

  14. 14.

    Jay Goodliffe et al., Dependence Networks and the International Criminal Court, 56 Int’l Studies Q. 131 (2012), available online.

  15. 15.

    Robert A. Pape, Soft Balancing Against the United States, 30 Int’l Sec. 7 (2005), available online.

  16. 16.

    Rome Statute Ratification Status List, supra note 1.

  17. 17.

    This map is based off of the information provided by Rome Statute Ratification Status List, supra note 1. It is available online.

  18. 18.

    In this comment, “ratification” is sometimes used interchangeably with “accession” and “accepting jurisdiction”. There is an important distinction to be made between the terms, however. Côte D’Ivoire ratified the Rome Statute in February 2013, but the proprio motu investigation begun in 2011 was started via Côte D’Ivoire’s accepting the court’s jurisdiction in 2003 for crimes committed during the First Ivorian Civil War, which started in September 2002.

  19. 19.

    See Letter from Alassane Ouattara, President, Côte d’Ivoire, to Luis Moreno-Ocampo, Prosecutor, International Criminal Court (December 14, 2010), available online. This letter references the 2003 declaration.

  20. 20.

    See, e.g., Côte d’Ivoire: Chaotic conflict deepens as government troops fight to recover lost territory in Ivory Coast, allAfrica.com, available online (December 3, 2002).

  21. 21.

    Press Release, ICC, Côte d’Ivoire ratifies the Rome Statute, ICC-ASP-20130218-PR873, February 18, 2013, available online .

  22. 22.

    Id.

  23. 23.

    Id.

  24. 24.

    Rome Statute, Article 11(2).

  25. 25.

    Referral of the Situation Concerning the Lord’s Resistance Army, Submitted by the Republic of Uganda, December 16, 2003, available online, [hereinafter Lord’s Resistance Army].

  26. 26.

    Update on the Implementation of the Recommendations Made by The UN Secretary-General’s Representative on Internally Displaced Persons Following His Visit to Uganda, Refugee Law Project, at VIII, (2nd Ed., October 2006) available online.

  27. 27.

    Lord’s Resistance Army, supra note 25.

  28. 28.

    George Murumba, Indict Museveni for War Crimes—Says Lawyer, Uganda Correspondent, April 30, 2012, available online.

  29. 29.

    Press Release, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), I.C.J., No.2005/26, December 19, 2005, available online.

  30. 30.

    Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Mathieu Ngudjolo Chui, Warrant of Arrest, ICC-01/04-02/07 (July 6, 2007), available online; Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Thomas Lubanga Dyilo, Warrant of Arrest, ICC-01/04-01/06, February 10, 2006, available online; Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Germain Katanga, Warrant of Arrest, ICC-01/04-01/07, July 2, 2007, available online. See also Background Note LRA—Lubanga, ICC (last visited March 26, 2013) available online.

  31. 31.

    The Situation in the Democratic Republic of the Congo (DRC), Int’l Bar Assoc. Hum. Rts. Inst., (last visited March 26, 2013) available online.

  32. 32.

    Kenya National Assembly Official Record (Hansard) 3094 (November 14, 2001) available online.

Expanding Proprio Motu Investigative Authority: A Reform Proposal to Maintain the ICC’s Credibility as an Independent and Impartial Tool of Justice

Argument

The International Criminal Court has been unfairly labeled as an Africa-Biased institution due to 1) an unjust association with politically laden Security Council actions (and non-action); and 2) jurisdictional constraints on the ICC’s proprio motu authority which limit the ICC’s ability to independently investigate potential instances of genocide, crimes against humanity and war crimes. Both of these drivers of the Africa bias narrative can be mitigated by the expansion of the ICC’s proprio motu authority to allow for and encourage universal investigation coupled with public reporting and potential requests for referral to the UN Security Council.

Introduction

In the wake of violence stemming from anti-government demonstrations and ensuing civil war in Libya, on June 27, 2011, the International Criminal Court (ICC) issued warrants for the arrest of Libyan leader Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and then-intelligence chief Abdullah Al-Senussi for alleged crimes against humanity.1 The African Union leadership, in turn, called upon its membership not to cooperate in executing the arrest warrants, charging that the court’s focus on crimes committed in Africa was “discriminatory”.2 The ICC is no stranger to this line of criticism. The ICC indictment of President Omar al-Bashir in Sudan in 20073 was met with similar accusations of an African bias at the ICC, including personal attacks on the credibility of the Prosecutor.4 The ICC’s overwhelming focus on Africa over the past decade has even contributed to larger narratives criticizing the overall purpose and efficacy of the court since its inception in 2002,5 but is the ICC the proper scapegoat?

This comment will explore whether or not those questioning the credibility of the ICC, and the Office of the Prosecutor, are appropriately assessing the ICC on the basis of Security Council actions and in the context of Rome Statute limitations that have constrained the ability of the ICC to universally investigate and prosecute crimes over which it has subject-matter jurisdiction.

The first part of this comment will argue that the increasing perception of the ICC as an Africa-biased enforcer of the “Law of the Empire” is unfair, both as a result of the politicized nature of the Security Council’s inconsistent response to alleged violations of the most serious international crimes, as well as significant jurisdictional limitations placed on the Office of the Prosecutor’s (“the Prosecutor) proprio motu authority inhibiting the Prosecutor’s ability to respond to such instances in a uniform manner. The second part of this comment proposes expanding the Prosecutor’s Proprio Motu authority, through amendment to the Rome Statute, in order to allow for universal investigative authority coupled with the opportunity for public reporting and requests for referral to the UN Security Council. The third part of this comment will briefly address potential counterarguments to the proposed reform. Finally, this comment concludes that such an expansion of the Prosecutor’s proprio motu authority is essential to reestablish the ICC’s institutional reputation as an independent and impartial tool of justice.

I. Law of the Empire?

[T]he most serious crimes of concern to the international community as a whole must not go unpunished and [ ] their effective prosecution must be ensured…

Preamble, Rome Statute of the International Criminal Court (1998)

The adoption of the Rome Statute on July 17, 1998, appeared to promise a future free from impunity for perpetrators of those crimes considered most heinous by the international community including genocide, war crimes, and crimes against humanity.6 More than ten years after its entry into force on July 1, 2002, the ICC has laid down indictments for more than 30 individuals, all Africans, and all arising from eight situations on the African continent.7 ICC detractors will argue that the ICC’s track record to-date evidences a form of “Law of the Empire”—characterizing the ICC as an anti-African and pro-western tool for discriminatory, or victor’s, justice. In response, former Chief Prosecutor of the ICC, Luis Moreno-Ocampo has referred to such claims as “baseless” and no more than a diversionary tactic propagated by those facing ICC prosecution.8

Proponents of the Africa-bias narrative argue that the ICC acts at the behest of the UN Security Council, three out of the five members of which remain non-State Parties to the Rome Statute.9 There are even claims that the Rome Statute, most notably Article 13, by subjecting nationals of non-States Parties to the reach of the ICC through Security Council referral, is in violation of international treaty law.10 Allegations of hypocrisy are further fueled by Security Council’s repeated incorporation of provisions immunizing its nationals operating within situations referred for ICC action.11

Perceptions of an Africa bias at the ICC are further compounded, perhaps with good cause, by a perceived shrinking of the gap between the goals and mission of the ICC and the political interests of the Security Council. Recent uprisings in Libya and Syria have drawn inevitable comparisons and engendered criticisms with regard to the ICC’s disparate response. In the case of Libya, the Security Council unanimously referred the situation to the ICC on February 26, 2011.12 The ICC opened an investigation in less than a week and issued arrest warrants roughly four months after the initial referral.13 Conversely, despite mounting evidence of war crimes and other human rights abuses arising from the Syrian uprising dating back to Spring 2011,14 the ICC has yet to even open an investigation.15 This inconsistency, coupled with the lack of ICC action in response to allegations of war crimes against nationals of the P5 and other strategically and economically dominant nations, supports the presumption that the ICC is a court created only for “African countries, only for poor countries.”16

Even historical proponents of the court, such as Human Rights Watch, have expressed concerns that the Security Council’s “failure to refer situations in Sri Lanka, Gaza, and—most starkly—Syria” has created the perception of an inconsistent commitment to justice undermining the credibility of the ICC.17 But are the allegations of institutional bias at the ICC warranted, and if so, do they really call into question the credibility of the ICC in effecting impartial justice for those individuals facing prosecution?

A closer analysis of the authorities provided to the ICC under the Rome Statute reveals that the perception of an Africa bias at the ICC is largely a product of two factors beyond the ICC’s control: 1) necessarily politicized actions, or lack of action, by the UN Security Council; and 2) jurisdictional constraints on the ICC’s proprio motu authority which limit the ICC’s ability to independently investigate alleged crimes. Under the Rome State, there are three situations in which the ICC may exercise jurisdiction, including:

  1. Referral by a State Party to the Rome Statute (or ad hoc acceptance of jurisdiction by non-States Parties18);
  2. Unanimous Referral by the Security Council; and
  3. Prosecutor initiated proprio motu investigation (authorized by a Pre-Trial Chamber).19

Of the eight situations brought before the ICC to-date, four were referred by African States Parties to the Rome Statute (in order of occurrence—Democratic Republic of Congo, Uganda, Central African Republic, and Mali). The Security Council referred the situations on Darfur, Sudan and Libya. Because the ICC lacks control over the referrals described above (or the absence of referral in other cases) by States Parties or the Security Council, a rationale basis for determining institutional bias at the ICC might best be limited consideration of the ICC’s use of it’s proprio motu authority.

It is worth noting that both of the situations in which the ICC Prosecutor has initiated a investigation proprio motu are in Africa (Kenya and Ivory Coast). However, the Prosecutor’s discretion in utilizing the ICC’s independent proprio motu authority is governed by Article 13(c), Article 15, and Article 53(1),20 which limit the initiation of investigations proprio motu “on the basis of information on crimes within the jurisdiction of the Court”21 and which require the Prosecutor to consider whether there is a “reasonable basis to proceed” on legal grounds including jurisdiction.22 In effect, the ICC is unable to initiate an investigation proprio motu into alleged crimes that occur within the territory of a State that has not accepted the jurisdiction of the court (a non-State Party) with the exception of investigating persons accused of a crime in that territory who are a national of a State Party.

The impact of this treaty constraint should not be underestimated. African nations make up a significant bloc of States Parties to the Rome Statute, totaling 33 of 121.23 Further, many of the situations in which the ICC has not become involved, and which proponents of the Africa bias narrative cite as evidence of the ICC’s discriminatory selectivity, occurred or are occurring in nations that have yet to ratify the Rome Statute, or primarily implicate the conduct of nationals of non-States Parties. This includes situations such as those in the United States, Syria, Israel, Myanmar, Sri Lanka, Yemen, Pakistan, North Korea, and Iran. As a result, in these situations the ICC is dependent upon a Security Counsel referral.

The case of the ICC’s preliminary examination into the situation in Iraq is particularly demonstrative of these constraints. The ICC has opened preliminary examinations into ten situations beyond those involving a formal investigation outlined above, only two of which are in Africa. Preliminary examinations include those in Afghanistan, Honduras, Korea, Nigeria, Columbia, Georgia, Guinea, Iraq, Venezuela, and Palestine.24 The situations in Iraq, Venezuela, and Palestine have all been closed following a formal decision not to proceed to investigation.25 In the case of Iraq, the Office of the Prosecutor in its official response closing the case, reiterated that the ICC “[does] not have jurisdiction with respect to actions of non-State Party nationals on the territory of Iraq” and due to Iraq’s status as a non-State Party, “the available information did not appear to satisfy the requirements for territorial jurisdiction.”26 Although the ICC was able to consider the potential criminal responsibility of nationals of State Parties operating in Iraq, including their culpability as potential “accessories to crimes committed by nationals of non-state parties,” the preliminary examination thus excluded meaningful analysis and findings on the criminal responsibility of nationals of non-States Parties including the United States.27

In light of jurisdictional limitations placed on the ICC’s investigative authority, and its position as “an independent international organization…not part of the United Nations system,”28 the ICC’s impartiality should be assessed independently of the political processes and state interests which inform Security Council actions and which produced the treaty limitations acting as a constraint on the ability of the ICC to universally investigate and prosecute violations of crimes over which it has subject-matter jurisdiction. With that in mind, it is critical that the State Parties and ICC proponents (government and non-government) explore potential reforms that will provide the ICC reputational protection against claims of Africa bias.

II. A Reform Proposal: Expanding the ICC Prosecutor’s Proprio Motu Authority

Mrs. Fatou Bensouda, the new Chief Prosecutor at the ICC, has forcefully defended the ICC as an institution uncolored in its approach to justice, calling for consistency and reminding the international community that in order for the ICC “[t]o be effective, to be just and to have a lasting impact, justice has to be guided solely by the law and the evidence.”29

In order for the ICC to protect its reputation as an independent and impartial tool of justice, the ICC must be able to demonstrate it is willing to follow the evidence wherever it might lead, including beyond the African continent. In doing so, the ICC will be able to distance itself from criticisms of bias resulting from Security Council selectivity and Rome Statute limitations on the scope of potential proprio motu investigations. To achieve this goal, this comment proposes a reform of the ICC’s proprio motu investigative authority to allow for and encourage universal investigation coupled with public reporting and potential requests for referral to the UN Security Council.

Such an expansion of the ICC’s proprio motu authority is achievable through amendment to the Rome Statute, which may be proposed by any State Party for later consideration at a subsequent meeting of the Assembly of States Parties.30 Adoption of an amendment requires the support of two thirds of States Parties, and its entry into force is contingent upon the acceptance of seven eighths of States Parties.31

This amendment might come in the form of a textual addition to Article 53, as provided for in the sample language below:

If the Prosecutor finds a reasonable basis to initiate an investigation under subparagraphs (a)(b)(c) above, notwithstanding a lack of satisfaction of the preconditions to the exercise of jurisdiction identified in Article 13, he or she is encouraged to initiate an investigation. If, at the conclusion of the investigation the Prosecutor finds sufficient evidence to conclude there is a reasonable basis to believe individual(s) committed crimes within the ICC’s subject-matter jurisdiction warranting their arrest, the Prosecutor shall publically report and submit such findings to the Security Council, and where appropriate, request the Security Council refer the matter in order to allow for the exercise of jurisdiction as provided for under Article 13(b) and proceed with a request for warrant of arrest under Article 58.

Of course, the Prosecutor’s expanded authority would be subject to same pre-trial authorization as currently required for an investigation proprio motu.

The proposed reform would protect the institutional credibility of the ICC by allowing ICC to universally investigate and act upon evidence of crimes within its subject-matter jurisdiction. This will distance the ICC from limiting, and arguably bias, politics amongst the Security Council and larger UN membership. Further, the ICC’s deterrence effect on non-State Parties will be strengthened in response to the potential for ICC investigation even absent Security Council referral and corresponding public pressure for Security Council referrals in the event there is sufficient evidence to warrant arrest. Although limited in circumstance, non-State Party governments that would welcome an ICC investigation, but which are unable to ratify the Rome Statute or temporarily accept jurisdiction of the ICC under Article 12(3)32 due to domestic political constraints, would also have the opportunity to cooperate with the ICC while maintaining a more neutral public stance on the ICC’s investigation.

III. Addressing Counterarguments

One might fault the above reform aimed at countering the Africa bias perception for perhaps missing the forest for the trees. The Security Council will still retain effective veto power over ICC efforts to pursue a prosecution of nationals previously beyond the jurisdictional reach of the ICC, and thus, functionally, the geographic distribution of ICC indictments and prosecutions may not deviate from the status quo.

However, the proposed reform could broaden the practical scope of ICC activities for several reasons. First, the Security Council would face significant public pressure to refer cases in which the ICC, following the completion of its proprio motu investigation, publicly reports there is a reasonable basis to believe individual(s) committed crimes within the ICC’s subject matter jurisdiction warranting their arrest. A formal request for referral from the Office of the Prosecutor to the Security Council would likely heighten existing political pressure on the P5, such as in the case of Syria.33 Secondly, because such a request for referral equates to a threat of immediate indictment upon Security Council referral, this also creates a significant bargaining chip for diplomatic processes aimed at convincing leaders to terminate ongoing abuses and prevent increasing numbers of victims. Additionally, the primary purpose of this reform is to disaggregate the ICC from criticisms, amongst them allegations of Africa bias, more properly aimed at political decisions made by members of the international community, and the Security Council in particular. Even if the Security Council fails to act on ICC requests for referral, the ICC will nonetheless realize reputational benefits for having pursued a referral.

The ICC’s perceived bias has also been raised on the basis of ICC decisions not to pursue full investigations outside of Africa even in countries where the ICC does not face jurisdictional challenges.34 However, under the proposed reform, the scope of preliminary examination in a situation such as Iraq would necessarily expand to include the potential criminal responsibility of nationals of non-States Parties, potentially resulting in a different outcome. Further, in situations such as Syria, where statements by Human Rights officials at the United Nations support the inference that a full investigation would be warranted,35 the ICC would be hard pressed not to utilize their new authority to move beyond the preliminary examination phase, undertake a full investigation, and submit a potential request for referral to the Security Council.

Lastly, the ICC might face difficulties in pursuing an investigation in a nation that has not accepted the Court’s jurisdiction, as well as in its efforts to gather information without the intelligence support of the P5, which may seek to avoid the political pressure associated with such an investigation. Nevertheless, past and present investigations in Darfur, Sudan, Kenya, and Ivory Coast demonstrate the willingness of the Office of the Prosecutor to undertake formal investigations in response to sufficient evidence without undue regard for any significant logistical difficulties they might be present.

Conclusion

The perception of the ICC as biased in its response to violations of crimes within its subject-matter jurisdiction is largely a byproduct of politically influenced decision-making at the UN Security Council and jurisdictional constraints on the ICC’s proprio motu authority which limit the ICC’s ability to independently investigate alleged perpetrators of heinous crimes including genocide, war crimes, and crimes against humanity. If the ICC Prosecutor’s proprio motu powers were expanded allow for universal investigative authority coupled with the opportunity for public reporting and requests for referral to the UN Security Council, the ICC could shift criticisms of selectivity and discrimination in prosecuting violators of these crimes toward their proper targets—the Security Council, the UN membership, and other non-state actors influencing the political decision-making process within the international community. In so doing, the proposed reform would counter the narrative of Africa bias at the ICC and protect the credibility of the ICC as an independent and impartial tool of justice.

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

  1. 1.

    Situation in Libya, ICC, ICC-01/11 available online [hereinafter Libya Situation].

  2. 2.

    African Union Opposes Warrant for Qaddafi, N.Y. Times, July 2, 2011, available online.

  3. 3.

    Situation in Darfur, Sudan, ICC, ICC-02/05, available online.

  4. 4.

    Richard Lough, African Union Accuses ICC Prosecutor of Bias, Reuters (Jan. 30, 2011), available online.

  5. 5.

    See Raj Kannapan, The International Criminal Court: Jesters and Justice, Wash. Times, Feb. 12, 2013, available online.

  6. 6.

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

  7. 7.

    See Situations and Cases, ICC, available online.

  8. 8.

    Luis Moreno-Ocampo Responds to Questions From Workshop Participants, in The Reckoning: Understanding the International Criminal Court available online (alleging the debate surrounding Africa bias at the ICC was “started and promoted by President Bashir”).

  9. 9.

    The State Parties to the Rome Statute, ICC, available online.

  10. 10.

    Tendai Moyo, Africa: ICC’s Bias, Flaws Long Overdue, AllAfrica.com, Nov. 3, 2011, available online (arguing that this extension of ICC jurisdiction to non-signatories is in contravention of the Vienna Convention on the Law of Treaties, under which “no country can be bound by the provisions of a treaty it has not signed”).

  11. 11.

    See, e.g., Security Council Referral on the Situation in Libya, S/RES/1970, at § 6 (2011), available online.

  12. 12.

    See Libya Situation, supra note 1.

  13. 13.

    Id.

  14. 14.

    Nick Cumming-Bruce, UN Rights Officials Urge Syria War Crimes Charges, N.Y. Times, Feb. 18, 2013, available online.

  15. 15.

    Stephanie Nebahay, Time to Refer Syrian War Crimes to ICC, Reuters, February 18, 2013, available online.

  16. 16.

    Rwanda’s Kagame says ICC Targeting Poor, African Countries, AFP, July 31, 2008, available online (Quoting Paul Kagame, President of Rwanda); see also, Moyo, supra note 10 (“Normally, we would have expected the ICC to spontaneously activate its legal system to immediately deal with [Americans complicit in abuses at Abu Ghraib in Iraq and Guantanamo Bay in Cuba] most of whom never faced any prosecution at home. However, nothing was done as the court remained completely disinterested and manifestly emasculated.”).

  17. 17.

    UN Security Council: Address Inconsistency in ICC Referrals, HRW (October 16, 2012), available online.

  18. 18.

    Rome Statute, supra note 6, at Article 12(3).

  19. 19.

    Rome Statute, supra note 6, at Article 13.

  20. 20.

    Rome Statute, supra note 6.

  21. 21.

    Rome Statute, supra note 6, at Article 15.

  22. 22.

    Rome Statute, supra note 6, at Article 53(1).

  23. 23.

    The States Parties to the Rome Statute, ICC, available online.

  24. 24.

    Communications, Referrals and Preliminary Examinations, ICC, available online [hereinafter Preliminary Examinations].

  25. 25.

    Id.

  26. 26.

    ICC, OTP Response to Communications Received Concerning Iraq, 3 (and corresponding footnotes), (Feb. 9, 2006), available online .

  27. 27.

    Id.

  28. 28.

    About the Court, ICC, available online.

  29. 29.

    David Smith, New Chief Prosecutor Defends International Criminal Court, The Guardian, May 23, 2012, available online.

  30. 30.

    Rome Statute, supra note 6, at Article 121(1).

  31. 31.

    Rome Statute, supra note 6, at Article 121(3)-(4). It is worth noting that Article 121(6) provides for States Parties to withdraw from the Statute no later than one year following the entry into force of an amendment. However, given that the proposed reform would extend the ICC’s proprio motu investigative authority to nationals of non-states parties not under national or territorial jurisdiction of the court it appears self-interest would preclude States Parties from opposing universal investigative authority of potential criminal violations.

  32. 32.

    Rome Statute, supra note 6.

  33. 33.

    See, e.g., Nebahay, supra note 15.

  34. 34.

    Of the eight preliminary examination cases initiated by the ICC outside of Africa, none have resulted in a full investigation to-date and three have been closed. See Preliminary Examinations, supra note 24.

  35. 35.

    See Cumming-Bruce, supra note 14.

The ICC Should Initiate a Formal Investigation into the Situation in Colombia

I. Introduction.

The International Criminal Court (“ICC”) should initiate a formal investigation into the situation of Colombia, a country in which a civil war has been ongoing for decades through the present day and thousands of war crimes and crimes against humanity have been committed. The ICC’s Office of the Prosecutor (“OTP”) is charged with ensuring accountability for the persons in the world most responsible for the most serious crimes of international concern under the Rome Statute. The OTP has been monitoring the situation in Colombia since 2004, yet is still in the preliminary investigation phase. The facts and circumstances of the Colombian situation are ripe for a formal investigation. The Colombian situation meets the requirements of article 53 of the Rome Statute in order to initiate a formal investigation.

In a very recent Interim Report issued by the OTP, the OTP determined there is a reasonable basis to conclude that war crimes and crimes against humanity within the jurisdiction of the ICC have been committed in Colombia by both State and non-State actors. Regarding the complementarity test, specifically whether there are ongoing domestic criminal proceedings for perpetrators of these crimes, the OTP found that those most responsible in the State security forces for mass extrajudicial killings of civilians have enjoyed impunity, and that nearly all perpetrators of crimes of rape and other forms of sexual violence and forced displacement have gone unpunished. However, the OTP found that for other crimes such as forcible transfer of population; imprisonment or other severe deprivation of physical liberty; torture and other cruel treatment; murder; attacking civilians; outrages upon personal dignity; taking of hostages; and conscripting, enlisting, and using children to participate actively in hostilities, the highest members of paramilitary and guerilla groups have faced prosecution. The OTP ultimately concluded not to open a formal investigation at this time and to continue monitoring the situation in Colombia.

The OTP’s analysis of the situation in Colombia, however, is faulty, and the OTP should initiate a formal investigation into the situation of Colombia. Firstly, the fact that the highest level perpetrators, at least those members of the State security forces, have gone unpunished for mass extrajudicial killings, rape and other forms of sexual violence, and forced displacement, alone is sufficient under the Rome Statute to initiate an investigation. Second, the OTP engages in far too little qualitative analysis of the genuineness of domestic proceedings, namely those against paramilitary and guerilla members, and of the unwillingness of the Colombian authorities to conduct genuine investigations and prosecutions for war crimes and crimes against humanity. Certain aspects of the domestic judicial system suggest that the Colombian authorities are shielding perpetrators from criminal responsibility, there are unjustified delays of domestic proceedings, and judicial processes lack independence and impartiality. The deficiencies and limitations of the Colombian judicial system, particularly during ongoing armed conflict, provides sufficient basis for the OTP to initiate a formal investigation into the situation in Colombia.

In this, it is encouraged that the OTP initiate an investigation into the situation of Colombia, and, at the very least, engage in a more thorough and qualitative analysis of the ongoing judicial proceedings in Colombia. Initiating an investigation into Colombia would also expand the OTP’s and the Court’s work into a new continent, diminishing the opportunity for criticism of the ICC as being an “African Court.” Not only would an investigation into Colombia be proper under the rules and procedures of the Rome Statute and in accord with the mandate of the Rome Statute, investigating a non-African state would also enhance the reputation of the ICC. Engaging in a more qualitative analysis of the judicial system in Colombia as part of the complementarity inquiry may also assist in more effectively determining other situations ripe for investigation in the future. If other preliminary investigations are so quantitatively focused as in the situation of Colombia, it is likely that the OTP will decline to investigate in other situations around the world that should be before the ICC. Engaging in a more qualitative engagement with the complementarity principle will assist the OTP in fulfilling the mandate of the Rome Statute to end impunity for the most serious crimes of concern to the international community.

Section II includes a factual background of the conflict in Colombia and an explanation of the jurisdiction of the ICC over crimes committed in Colombia. Section III includes a discussion of the legal standard required to initiate an investigation into a new situation under article 53 of the Rome Statute, including whether there is a reasonable basis that crimes have been committed and an inquiry into complementarity under article 17 of the Rome Statute. In section IV the complementarity test under article 17 of the Rome Statute is applied to the situation of Colombia and qualitatively analyze why there is sufficient justification to initiate an investigation into the situation of Colombia. Section V will include concluding remarks.

II. Background of the Situation in Colombia.

A. Factual Background of Civil War and International Crimes in Colombia.

The civil war in Colombia has been ongoing since the 1940s between the armed forces and paramilitary and guerilla groups.1 Uprisings began by peasant paramilitary and guerilla groups largely in response to poverty, especially in rural areas, and to protest government violence. Uprisings began in the 1940s and 50s and involved mass killings of civilians early on. In response, General Gustavo Rojas Pinilla launched a major military offensive during the mid-1950s.2 The government offensive against the peasant uprising became known as the War of Villarica.3 The largest guerilla faction, the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), gained more power and influence when “failed Colombian political initiatives in the 1970s led to a near doubling of the poverty level in urban areas.”4 FARC and Ejército de Liberación Nacional (“ELN”) also tried to gain political, economic, and social control over land and resource-rich areas.5 FARC and ELN were involved in narcotics production and trafficking, especially of cocaine, and gaining control of certain land regions was of strategic importance to cocaine production and trafficking.6 As a result, peasants fled the cities to the FARC-controlled rural areas to find work in growing coca.7 “This mass migration led to a large increase in FARC revenues, due to ‘war taxes’ that FARC levied on civilians living within regions under their control. Initially, the drug lords and FARC worked together; the drug lords produced and trafficked the cocaine, developed from the vast coca fields farmed by peasants, and FARC provided protection within the region for the illegal operation.”8

As the drug lords of the FARC became wealthier, they invested their money in property alongside wealthy landowners.9 This led to violence and conflict between the FARC and landowners.10 Many landowners were kidnapped and murdered, in response to which an alliance of members of the Colombian military, the police, businessmen, and ranchers formed in the 1980s, known as Muerte a Secuestradores (“MAS”).11 The MAS later became known as the Autodefensas Unidas de Colombia (“AUC”), including 15,000 members and supporters.12 The AUC also maintained itself through wealth obtained from cultivating and trafficking cocaine, like the FARC and ELN.13

This conflict led to human rights violations on a massive scale.14 One of the most known about patterns of crimes in Colombia is known as the falsos positivos (“false positives”) committed by the Colombian armed forces. False positives are killings of civilians “staged by the security forces to look like lawful killings in combat of guerillas or criminals.”15 It is estimated that the National Security Forces committed 3,345 extrajudicial executions between 1996 and 2008.16 The vast majority of these cases occurred between 2004 and 2008, but continued at least through the present day.17 As of 2010, the Human Rights Unit of the Attorney General of Colombia recognized 1,622 such cases as having been committed by state security forces.18 “Of these cases 1,509 had been committed between 2002 and 2010 (96.1 percent of the cases). These cases, which represent 2,679 victims, do not include those being processed in the sectional or local offices of the public prosecutors offices, much less those being prosecuted under the military criminal justice jurisdiction.”19

While the false positives were notoriously committed by the State security forces, there were mass killings, assassinations, torture, and kidnappings committed by all warring factions and groups, including against civilians.20 The Colombian Government has reported 3,166 civilian deaths between 2003 and 2010.21 Non-governmental sources, however, report much higher numbers—6,040 civilian deaths—between 2003 and 2009.22 According to the Ministry of National Defense between from 2002 and 2008, 12,713 people belonging to the guerrillas, and 2,602 members of paramilitary groups fell in combat. The Ministry also reported 49,523 captured, of whom 32,335 belonged to the guerrillas and 13,456 to paramilitaries.”23 The government reported that in 2002 alone there were 1,708 victims of abductions, though by 2009 this number decreased to about 160.24 As of March 2011, there had been 490 confessions of torture as part of proceedings under the Justice and Peace Law.25

There has also been extremely widespread sexual violence of various forms including rape, domestic labor, forced prostitution, forced pregnancy, forced abortions, forced domestic labor, sexual harassment, and other forms of sexual violence. According to the First Survey on the Prevalence of Sexual Violence against Women in the Context of the Colombian Armed Conflict 2001-2009, at least 33,960 women in Colombia were victims of some form of sexual violence committed by armed groups; at least 12,809 were victims of rape committed by members of armed groups; at least 1,575 women have been forced into prostitution by armed groups; at least 9,388 women were victims of domestic labor; at least 4,415 women were victims of forced pregnancy committed by paramilitary groups; at least 1,810 women were victims of forced abortions by paramilitary groups; at least 8,166 women were victims of sexual harassment by paramilitary groups. Between 2001 and 2009, 700 cases of rape and other forms of sexual violence against women had been reported to the Justice and Peace Unit.26

The guerilla and paramilitary groups have also been known to use child soldiers as informants, messengers, foot soldiers, and executioners.27 Of all the children allegedly used as child soldiers, FARC allegedly accounts for 80 percent of the use of children, and the AUC accounts for the remaining 20 percent.28

There have particularly been mass killings of trade unionists and human rights defenders. Notably, Colombia has the highest rate of murders of trade unionists every year. Thirty-two human rights defenders were reported to have been victims of murder or enforced disappearances in 2010, and 55 in 2011.29 Twenty-nine trade unionists were reported murdered in 2011.30 In 2012, at least 40 human rights defenders and 20 trade unionists were killed.31 In addition, human rights defenders and trade unionists “face violations to their right of personal integrity, threats, defamation, and judicial harassment.”32 Two hundred and thirty-nine total individual attacks on defenders were recorded in 2011, of which 59 percent were threats.33

There has also been mass displacement of over 2.5 million people throughout the civil war.34 Colombia has the second highest number of displaced persons of any country in the world.35 The United Nations High Commissioner for Refugees (“UNHCR”) reported that between 2005 and 2010, 52,521 persons belonging to indigenous communities were displaced.36

The various alleged crimes have targeted human rights defenders, public officials, trade unionists, teachers, public officials, journalists, community leaders, and members of indigenous and Afro-Colombian communities.37 These violations have not significantly decreased over time. In fact, in 2011, the International Committee of the Red Cross concluded that the number of international human rights violations committed in Colombia has increased.38 Luis Moreno-Ocampo, in his position as Prosecutor of the ICC, found that Colombia was one of the three countries where the most serious international crimes had been committed.39

B. The International Criminal Court: Jurisdiction over the Situation in Colombia and the Interim Report on Colombia.

The ICC has jurisdiction over crimes against humanity (and genocide) in Colombia since November 1, 2002, when Colombia ratified the Rome Statute.40 However, Colombia had ratified the Rome Statute with a reservation providing that the ICC would not have jurisdiction over war crimes for seven years following Colombia’s ratification of the Rome Statute. Hence, the ICC has jurisdiction over war crimes in Colombia since October 31, 2009, when the reservation expired.41

The OTP published an interim report on its preliminary investigation into the situation in Colombia in November 2012. The report concluded that the preliminary examination of the situation would continue and the OTP would continue to monitor the situation on the ground.42

III. The Legal Standard for Initiating an Investigation in the International Criminal Court.

Article 53(1) of the Rome Statute establishes the standard for initiating an investigation into a new situation in the ICC. The Prosecutor must consider three factors in evaluating whether or not to initiate an investigation: (a) whether there is a reasonable basis to believe that a crime within the jurisdiction of the ICC has been or is being committed; (b) whether the case would be admissible under article 17 of the Rome Statute; and (c) taking into account the gravity of the crime and the interests of the victims, whether there are substantial reasons to believe that an investigation would not serve the interests of justice.43 Article 17 clarifies the second prong of the article 53(1) inquiry and includes essentially a two part test: (1) the complementarity test in article 17(1)(a)-(c) and (2) the gravity of the crime in article 17(1)(d).44 The following section A will focus briefly on the reasonable basis standard. Section B will focus heavily on the complementarity aspect of article 17, since that is the primary issue for the OTP at this stage of the preliminary investigation. The OTP has not engaged in an analysis of the gravity of the crimes committed and consequently that will not be addressed in this paper at length.

A. Reasonable Basis.

The first part of the article 53 inquiry regarding whether the OTP could initiate an investigation into a new situation is whether there is a reasonable basis to believe that a crime within the jurisdiction of the ICC has been or is being committed. The Trial Chamber of the ICC articulated reasonable basis as meaning “a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed.’”45 In its Interim Report on Colombia, the OTP finds that there is a “reasonable basis” to conclude that war crimes and crimes against humanity within the jurisdiction of the ICC were committed by state and non-state actors in Colombia.

The OTP concluded that from November 1, 2002 to the present date, there is a reasonable basis to believe that both State and non-State actors (namely the FARC, ELN, and other paramilitary groups) have committed crimes against humanity including: murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, and rape and other forms of sexual violence.46

The OTP also concluded that since November 1, 2009 the FARC and ELN have committed war crimes including murder; attacking civilians; torture and cruel treatment; outrages upon personal dignity; taking of hostages, rape and other forms of sexual violence; and conscripting, enlisting, and using children to participate actively in hostilities.47 The OTP also concluded that State actors have committed war crimes referred to as false positives, namely constituting crimes of murder and enforced disappearances, and that a State policy existed at least at the level of brigades within the armed forces.48 The OTP finds there is also a reasonable basis to believe that State actors committed other war crimes as well including murder, attacking civilians, torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.49

B. Admissibility.

The second stage of analysis under article 53 of the Rome Statute as to whether the OTP could initiate an investigation into a new situation is whether the situation of Colombia would be admissible under article 17 of the Rome Statute. Article 17 requires a two-part inquiry into the complementarity test and the gravity of crime(s) committed. Since the OTP has not evaluated the gravity of the crimes at this stage and has focused primarily on complementarity, this section will evaluate the meaning of complementarity at length and under what conditions a situation will be admissible to the ICC.

Article 17 states:

  1. 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
    1. (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
    2. (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
    3. (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
    4. (d) The case is not of sufficient gravity to justify further action by the Court.
  2. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
    1. (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
    2. (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
    3. (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
  3. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 17(1)(a)-(c) are the starting points for the inquiry. One of the Trial Chambers of the ICC interpreted this as positing two questions: “(1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned.”51 If both questions are answered in the negative, the case would be admissible to the ICC. That would be end of the inquiry regarding complementarity.

For cases to be admissible to the ICC on the basis of ongoing domestic investigations, there is also a “same person same conduct” requirement.52 In other words, the ongoing or previous investigations in the domestic justice system must cover the same person for the same crimes that would be punishable under the Rome Statute; the proceedings must cover those most responsible for the gravest war crimes, crimes against humanity, and/or genocide in that situation that would be the subject of an ICC case.53 The ICC has noted that this test “is more specific when it comes to an admissibility determination at the ‘case’ stage,” suggesting that at the stage of a preliminary examination the required adherence to this test is less stringent.54 The ICC elaborated that “[t]he Prosecutor’s selection of the incidents or groups of persons that are likely to shape his future case(s) is preliminary in nature and is not binding for future admissibility assessments. This means that the Prosecutor’s selection on the basis of these elements for the purposes of defining a potential “case” for this particular phase may change at a later stage, depending on the development of the investigation.”55 Hence, the Prosecutor does not need to identify specific individuals for a potential case or cases prior to opening a formal investigation into a particular situation.

If these two questions as articulated by the Court—as to whether there are ongoing investigations or whether there have been investigations in the past after which the State decided not to prosecute the individuals concerned—are answered in the affirmative, the situation may still be admissible. The Prosecutor and the Court must then evaluate the second half of the sub-paragraphs of article 17(1)(a) and (b).56 The Court must consider whether the domestic proceedings have been “genuinely” conducted or whether there is indication of an unwillingness and/or inability of the State to prosecute those responsible for crimes that would fall under the jurisdiction of the ICC.57 Article 17(2) and (3) provide further guidance on how to evaluate whether or not there is unwillingness or inability on the part of the State to conduct genuine prosecutions.

The relevant inquiry as to the admissibility of the situation in Colombia is whether Colombian authorities are “unwilling” to conduct genuine investigations and prosecutions. There are quite a large number of domestic proceedings ongoing in Colombia and there have been several convictions as well. Therefore, the Colombian situation would be inadmissible to the ICC unless “unless the State is unwilling or unable genuinely to carry out the investigation[s] or prosecution[s].” Furthermore, the more critical issues in Colombia will relate to whether there is unwillingness on the part of the State to genuinely conduct proceedings, as will be discussed further below, rather than on whether Colombian authorities are unable to conduct investigations and prosecutions. Since there are ongoing investigations, it is unlikely that Colombia is really unable to conduct genuine investigations and prosecutions at this time, though that is debatable. Given these considerations, the following analysis of complementarity will focus primarily on the “unwillingness” aspect of the complementarity test.

The guidance provided in the Rome Statute regarding the terms “genuinely,” “unwillingness,” and “inability,” are still rather insufficient and their interpretations are largely left to the discretion of the Court. The issue of genuineness is particularly vague. Much of the debate has focused on whether genuineness is or should be dependent on the State’s intent to conduct genuine prosecutions. However, it is sensible to argue and has been argued that the focus of the genuineness inquiry cannot be based solely on the intent of the State. The Court has rejected this interpretation, noting that it should not be the case that the Court should “be unable to exercise jurisdiction over a case as long as the State is theoretically willing and able to investigate and prosecute the case, even though that State has no intention of doing so.”58 This approach would also render cases inadmissible to the ICC where a State alleges it has genuine intent to prevent impunity, and yet impunity reigns and the Rome Statute’s goal of ending impunity for the most serious crimes is left unfulfilled.59

In addition, analyzing the subjective intent of the State alone to evaluate genuineness would be impractical. It makes more practical sense to analyze whether the way in which proceedings are conducted are “genuine,” and whether proceedings are conducted in a proper manner. “It is not the will that must be genuine, but the actual prosecutions.”60 Though it is not necessarily the Court’s role to evaluate broader human rights violations, international standards for the proper administration of justice are helpful guideposts. Whether proceedings are conducted in a “genuine” manner not “inconsistent with an intent to bring the person concerned to justice” are further guided by the three criteria identified in article 17(2)(a)-(c).61 Essentially the question is to ask whether the state is “walking the walk” and not just “talking the talk,” and whether the State’s judicial processes are consistent with its obligation under the Rome Statute to eliminate impunity for “the most serious crimes of concern to the international community” as required by the preamble of the Rome Statute.62

Several scholars, notably including a panel of experts convened by the OTP, have elaborated on more concrete factors under article 17(2) and (3) that may assist in the identification of (1) whether the State is attempting to shield persons from criminal responsibility for crimes within the jurisdiction of the Court; (2) whether there have been unjustified delays that are “inconsistent with an intent to bring the person concerned to justice;” and (3) whether proceedings lack independence and/or impartiality inconsistent with an intent to bring the person concerned to justice.

Shielding persons from criminal responsibility may be indicated by the presence of official documentation including legislation, orders, amnesty decrees, instructions, and correspondence.63 Sham proceedings in particular are red flags regarding attempts to shield persons from responsibility.64 Evidence of longstanding knowledge of crimes without action taken to discipline perpetrators of those crimes, or to prevent the continued commission of such crimes, may indicate attempts to shield perpetrators from responsibility.65 There may be evidence that investigations were only launched when the ICC took action or became involved.66 There may be a low number of investigations opened in proportion to the number of crimes that have been committed.67 The Prosecutor and the Court should also consider how high up the scale of authority investigations and prosecutions reached, as well as the adequacy of charges and modes of liability vis-à-vis the gravity and evidence of the crime(s) committed.68 Other key indicators of shielding persons from criminal responsibility may be the creation of special processes established specifically for the perpetrators, the appointment of special personnel such as judges, prosecutors, or jury members for trials, or strong deviations from normal criminal justice processes.69 Evidence of disproportionately lenient sentences, inefficient investigations, and prosecutions of ordinary rather than serious international crimes may also point to attempts to shield persons form responsibility.70 One scholar has also noted:

To establish a purpose of shielding it is not sufficient to find that a state only initiated proceedings in order to prevent the court from acting…If the state has the intent to establish the relevant facts, to evaluate these facts according to the pertinent laws and, in case of conviction, to impose an adequate sentence, this precludes an intent to shield a person, even if, at the same time, the state wishes to prevent the Court from stepping in.71

These are all factors that the Prosecutor and the Court could consider in determining whether the State is shielding persons from criminal responsibility, though this list is not exhaustive.

The issue of unjustified delays presents a more difficult issue in terms of defining the length of delay that would constitute an “unjustified delay.” Most scholars have resolved this in two ways. First, they would focus on the relative length of time of the proceedings at issue compared to the length of time of more typical and ordinary proceedings in the domestic justice system or in comparison to normal delays.72 In the alternative, some scholars have focused on whether there are reasonable justifications for any delays.73 These approaches get around the problem of having to determine a particular length of time that would constitute an unjustified delay. This would require a highly subjective inquiry by the Court and relevant parties to the case(s).

An inquiry into whether there is a lack of impartiality or independence seems to be slightly less subjective and can be more easily evaluated in the context of international standards of impartiality, independence, and international standards of due process. The Court could inquire into the degree of de jure and de facto independence and impartiality of the judiciary, prosecutors, investigating agencies, witnesses, and victims.74 There may be institutional shortcomings and a lack of procedural safeguards that inherently inhibit or do not provide for judicial independence and impartiality.75 Other considerations include the legal regime of access to evidence, the legal regime of extradition, linkages between perpetrators and judges, and corruption.76 Also relevant are the degrees of independence and fairness of procedures of appointment and dismissal of members of the judiciary, prosecutors, or investigating agencies, and whether there are awards or sanctions such as promotions or demotions in relation to such workers performing their duties.77 For instance, a case in which a prosecutor is fired for prosecuting a high-ranking official with crimes against humanity would indicate a lack of independence.78 Whether or not victims and witnesses face similar intimidation, threats, or retaliatory crimes are also a key factor pointing to a lack of independence or impartiality, as are any measures (or lack of measures) taken to protect such persons from intimidation, threats, or retaliatory crimes.79 Whether investigators, prosecutors, and witnesses have safe access to crime scenes are also relevant.80 The Court should also consider any patterns of political interference, particularly by the executive branch, in investigation and prosecution.81 Again, this is a non-exhaustive list of several concrete factors that may aid an analysis of whether the domestic proceedings lack independence or impartiality.

It is clear from these considerations that any inquiry into complementarity must take into account the realities on the ground in the situation country as well as the legal, governmental, and institutional framework that impacts the domestic judicial processes. This is necessarily a highly qualitative inquiry. Furthermore, “[t]he unwillingness test cannot be based on the outcome of proceedings…[T]he admissibility assessment should be based on procedural and institutional factors, not the substantive outcome.”82 The sheer number of investigations and prosecutions cannot demonstrate the “genuineness” of prosecutions. Even where there are a high number of investigations and prosecutions, there may still be serious defects in the “genuineness” of those cases as demonstrated above. As the OTP further considers whether to initiate an investigation into the situation of Colombia and other situations in the future, it must consider these qualitative factors.

IV. Complementarity as Applied to the Situation in Colombia.

The OTP should open a formal investigation into the situation in Colombia because domestic proceedings in Colombia demonstrate an unwillingness to conduct genuine criminal investigations or prosecutions against those most responsible for the most serious war crimes and crimes against humanity.83 As noted above, the key inquiry to determine the admissibility of the Colombian situation is whether or not the State is unwilling to conduct genuine investigations and prosecutions of those most responsible for the most serious crimes. The OTP noted in its interim report that it has focused on “whether proceedings have been prioritized against those who appear to bear the greatest responsibility for the most serious crimes within the jurisdiction of the Court and whether such proceedings are genuine.”84 However, in the interim report the OTP spent little to no time analyzing the genuineness of such proceedings and focused entirely on the number of proceedings currently ongoing or completed in Colombia. The OTP uncritically accepts that the proceedings are genuine, without engaging in any in-depth analysis of the current judicial system and legal framework in Colombia. This exclusively quantitative analysis is insufficient. The OTP should conduct a more qualitative inquiry into the willingness of the Colombian authorities to conduct genuine investigations and prosecutions and on this basis initiate an investigation into the situation of Colombia.

The OTP has not provided sufficient explanation as to why it is not opening an investigation at this stage. Regarding crimes committed by paramilitary and guerilla groups, the OTP alleges, “the national authorities have conducted relevant [and genuine] proceedings against those who appear to bear the greatest responsibility for the most serious crimes.”85 The OTP also commended Colombian authorities for investigating public officials, namely members of Congress, for criminal phenomena known as parapolitics. In other words, members of Congress have been prosecuted for “promoting illegal armed groups.”86 The OTP also found that many members of the military have been subject to disciplinary measures and/or criminal proceedings. However, the OTP acknowledges that high-ranking members of State forces have not been the subject of investigations for crimes, particularly the false positives, and that proceedings for crimes of rape and sexual violence as well as forced displacement are far and few between.87 These latter findings, that those most responsible for false positives among the state forces enjoy impunity and that nearly all crimes of sexual violence and forced displacement have gone unpunished, alone should warrant admissibility under article 17(1). For those crimes, an inquiry into the genuineness of proceedings is not even really necessary. Regardless, the OTP simply says it will continue monitoring the situation in Colombia in the preliminary examination phase rather than initiate a formal investigation. Regarding other ongoing proceedings, the OTP simply accepts these as genuine and alleges that other crimes, for instance murders and executions committed by paramilitary and guerilla groups, would be inadmissible on the basis that those most responsible have been subject to investigations and prosecutions to some degree.

The OTP fails to analyze the willingness (or lack thereof) of Colombian authorities to prevent impunity and provide accountability for these crimes. The OTP should have conducted more of a qualitative inquiry into the factors discussed in section III(B) of this paper: (1) whether the State is shielding persons from criminal responsibility, (2) whether there are unjustified delays, and (3) whether domestic proceedings lack independence and impartiality. The OTP relied merely on the quantitative nature of evidence, namely the number of ongoing or past proceedings, leaving out “qualitative aspects of a legal and judicial nature that are indispensable to adequately evaluate the results of the Colombian criminal justice system with regard to the prosecution of international crimes.”88

This section will include a more qualitative analysis of these issues to demonstrate that there is strong evidence to suggest that in fact each of these three factors are present and the Colombian authorities do exhibit unwillingness to conduct genuine investigations and proceedings. Section A will discuss the continuing level of impunity for those most responsible for the most serious crimes that would fall under the jurisdiction of the ICC and Colombia’s new Legal Framework for Peace Law as shielding those most responsible for crimes from investigation at the ICC. Section B will analyze the presence of unjustified delays in domestic proceedings, including the impact of extraditions. Section C will analyze the lack of independence and impartiality of domestic proceedings in Colombia, including the flawed reliance on military tribunals; the threats and intimidation targeted at judges, prosecutors, victims, witnesses, and human rights defenders; and de facto amnesty provided to paramilitary groups under the Justice and Peace Law. The OTP is encouraged to engage in a similar qualitative analysis and to reach the same conclusion that a formal investigation is warranted into the situation of Colombia.

A. There is Impunity for the Highest Level Perpetrators of Crimes in Colombia.

1. There is Nearly Complete Impunity for Crimes of Rape and Other Sexual Violence as well as Forced Displacement.

The OTP itself has noted widespread impunity for crimes of rape and sexual violence and forced displacement, which should be sufficient to initiate an investigation into the situation of Colombia. The OTP notes that a “a high level of impunity for the crime of forced displacement and procedural and institutional barriers continue[] to exist” and that the “State had failed to attend to the fundamental rights of the displaced population, including their right to justice.”89 Regarding cases of rape and sexual violence, by January 2012, only four of the 183 cases transmitted to the Attorney General had been brought to trial.90 If there are so few ongoing proceedings at all, it is clear that those most responsible for these crimes are going unpunished. The absence of any such proceedings meets the admissibility requirements under article 17(1) of the Rome Statute without a further necessary inquiry into the genuineness of proceedings. The OTP at least has sufficient justification to initiate an investigation for these crimes.

2. Senior Officials of the Government and State Security Forces Enjoy Impunity for Crimes, Especially False Positive Cases.

The OTP notes that senior military commanders of the State security forces have not been the subject of criminal investigations for the same crimes falling under the jurisdiction of the ICC and that investigations into false positive cases have not focused on those bearing the greatest responsibility.91 The OTP concluded that “while numerous members of the armed forces have been investigated and disciplinary measures, criminal convictions and prison sentences issued, the proceedings have not focused on the responsibility of those at senior levels for the occurrence of such crimes.”92 In several brigades, the OTP found no evidence that higher-ranking officers have been or are the subject of proceedings.93

The lack of accountability at higher levels of the State security forces in Colombia is well documented. Non-governmental organizations and United Nations agencies have maintained that the highest-level perpetrators still enjoy impunity.94 The Fédération Internationale des Droits de l’Homme (“FIDH”), for instance, maintains that only lower-level perpetrators, or in other words direct and material perpetrators of crimes are the subjects of criminal proceedings.95 Senior military commanders and intellectual military perpetrators have not answered for crimes committed, particularly for extrajudicial executions.96 Only one colonel has been the subject of any proceedings.97 In its 2011 Annual Report, the United Nations Office of the High Commissioner for Human Rights (“OHCHR”) noted that the highest ranking official to have been condemned and subject to criminal processes was a retired colonel who accepted responsibility in 57 extrajudicial executions committed between 2007 and 2008.98 No senior military or paramilitary commanders or higher-ranking officials seem to have been the subject of any criminal processes thus far, or at least no “genuine” criminal processes.

There can be no doubt that higher-ranking officials within the command structure of the military and the Colombian government at least knew about the mass atrocities, especially the false positives, being committed. There was a high degree of organization and coordination for committing extrajudicial executions known as “false positives” in various regions of the country by various brigades and clearly targeted and specific groups of victims.99 Patterns of executions exhibiting high levels of coordination could not have been carried out as isolated incidents by “bad apple” soldiers or even only brigades.100 Military officials at higher levels must have at least known about these abuses.

The mobility of commanders from one military unit to another, for one, likely reinforced the patterns across different brigades in terms of committing executions.101 Furthermore, the high number of casualties racked up by brigades “earned their commanders promotions rather than criminal investigations, thereby encouraging, expanding, perpetuating, and accentuating the impunity of the criminal activity of false positives.”102 The FIDH names Colonel Juan Carlos Barrerra Jurado as an example. He first served as a commander of the Fourth Brigade, which has been linked to a high number of false positive cases, and was then promoted to commander of the Fourteenth Brigade, also linked with a high number of false positive cases.103 The FIDH also identified Generals Mario Montoya and Oscar Gonzalez Peña as having been promoted in military ranks after being brigade and division commanders in Antioquia, the department where most of the extrajudicial executions reported between 2004 and 2008 took place.104 The OTP did not consider whether any proceedings are ongoing or have been instigated against Jurado, Montoya, and Peña. These are examples of high-ranking officers who were rewarded and praised despite having led brigades known to have committed a large number of false positives. Montoya was named Commander of the Armed Forces in 2006 and in 2009 was appointed as Colombia’s Ambassador to the Dominican Republic—even though he was linked to false positive cases.105 Commander Peña was praised as “the best commander in the country during his period as commander of the Fourth Brigade, because his unit was the one that reported the highest number of kills: 857” and was promoted in 2008 to replace Montoya as Commander of the Armed Forces.106

It cannot be argued that high level military commanders and other government officials had no knowledge of the false positives being committed. Human rights organizations and United Nations entities have condemned the military policies of offering incentives and the high pressure for results, or killings, on the basis that this perpetuates and incentivizes soldiers to commit false positives and other human rights abuses. Among these critics are the United Nations Special Rapporteur for Extrajudicial Executions, the United Nations Human Rights Committee, the OHCHR, and the FIDH.107 An increasing number of complaints against the security forces regarding extrajudicial executions were made to the Human Rights Unit of the Office of the Attorney General—73 in 2005, 122 in 2006, and 245 in 2007.108 Given the seriousness and widespread nature of the extrajudicial killings, it is implausible that senior military commanders had no knowledge thereof.109 The OTP even notes, “The information available indicates that high officials of the army were aware of false positive killings prior to 2002, but failed to take appropriate measures to address the allegations.”110 The OHCHR has also expressed suspicion that senior officials have some responsibility in the false positive cases.111

In response to several complaints of false positives, in 2007 the Ministry of Defense also ordered armed forces to avoid killing civilians (though this did not stop the commission of crimes).112 In the same year, the Ministry of Defense in 2007 even established a committee under Ministerial Directive 010 for a period of one year to monitor complaints of such illegal executions.113 The Chief of Joint Operations was tasked with “overseeing the implementation of this directive, receiving, consolidating, analyzing, and evaluating the information on operational results supplied by the Command Force and Joint Organizations.”114 Additionally, in 2008, the Minister of Defense created a commission to carry out an administrative investigation into allegations of false positives committed by the armed forces—though the commission had no authority to gather evidence, identify those responsible for alleged crimes, or pursue any criminal investigation.115 This commission found serious failures in military records pointing to misconduct and uncovered several false positive cases.116 In connection with those cases, 27 members of the military including three generals were discharged for their misconduct—but never faced any criminal investigations.117 Nevertheless, no steps were taken toward initiating criminal investigations against any military officers alleged to have committed extrajudicial killings.118 The OTP also acknowledges allegations that “the military would sometimes open preliminary investigations immediately after a death in combat was reported in order to prevent future criminal investigations, rather than to establish the truth on the circumstances of the death. The lack of accountability for violators as well as the absence of effective control by army commanders or clear rules preventing and punishing these crimes could have contributed to the persistence of such practices.”119 Based on this lack of accountability of those most responsible for these atrocities, the OTP should initiate an investigation into the situation in Colombia.

3. Even Where Domestic Criminal Proceedings have been Initiated and/or Completed against Higher Level Perpetrators, these Individuals have Not Faced Prosecutions for Crimes against Humanity.

Even where some are the subject of investigations or prosecutions, they have not been tried for crimes against humanity. Colombia has not incorporated the Rome Statute into its domestic legislation. Notably, the Attorney General has been investigating cases as isolated incidents rather than investigating patterns in order to establish the widespread and systematic nature of crimes against humanity.120 With this limited method, the chain of command cannot be established. The crime typically charged for false positive cases is homicide.121 At least once case did involve an analysis of related actions, a case in which a single brigade in the municipality of Soacha was involved in false positive cases.122 This method of investigation, however, has been rare. According to the FIDH, not a single case has been investigated regarding crimes against humanity as defined under the Rome Statute.123 A method of investigation focusing on the patterns of crimes committed is particularly important to understand command structures and how high within the ranks of the military or other paramilitary groups planning or at least knowledge of crimes permeated.124 Furthermore, many government officials including congressmen have primarily only been tried for political crimes of partaking in conspiracies, rather than being held accountable for the actual underlying crimes.125

4. Colombia’s “Legal Framework for Peace” Prioritizes the Prosecution of the Highest-Level Perpetrators of Crimes, Thereby Shielding Them from Prosecution at the International Criminal Court and Creating an Impunity Gap.

The Colombian government recently passed the “Legal Framework for Peace” which prioritizes the prosecution of the highest-level perpetrators, but may be an effort to shield those most responsible from prosecution at the ICC and may result in an impunity gap. This is not in line with the complementarity obligations on the State. The Legal Framework for Peace will provide for differential treatment for each of the different parties that have participated in the conflict.126 The Congress must prioritize certain cases and develop selection criteria to determine which cases to prioritize.127 As explained by the OTP, “[t]ransitional justice measures will be implemented by the National Congress through statutory laws. They will determine (a) who can benefit from the differentiated treatment; (b) which extrajudicial and judicial measures should be implemented to further proceedings; (c) the case selection criteria; (d) the conditions for the suspension of sentences; and (e) in which cases the application of extrajudicial sanctions, alternative sentences or special methods for the execution and serving of the sentence will apply.”128 Congress will have the power to forego criminal prosecutions or suspend the execution of criminal sentences in certain cases.129 Depending on what the selection criteria end up being, Congress ultimately has the discretion to forego prosecution or suspend sentences for international crimes including for those most responsible for the most serious crimes.130

The OTP itself noted some concern about this law, viewing “with concern any measures that appear designed to shield or hinder the establishment of criminal responsibility for crimes within the jurisdiction of the Court.”131 The OTP also emphasized the importance of knowing “as much as possible…about specific crimes committed by each person,” in order to better understand command structures and uncover evidence about the chain of command and how high criminal responsibility reaches in the ranks of armed groups.132 Aside from the strong potential for an impunity gap to be created by such a policy of prioritization, allowing de facto amnesty for some crimes, even those committed by low-level perpetrators, can have negative implications for cases against higher-level perpetrators. Information and evidence about higher-level perpetrators may in some instances only be gained from cases against lower level perpetrators. But the OTP did not go into an in-depth analysis of the law and still did not see this as a bar to admissibility. The OTP intends to continue to evaluate on a case-by-case basis whether reduced and suspended sentences under this framework could be said “to be consistent with an intent to bring the person concerned to justice.”133 This law has a high likelihood to lead to further impunity, including of those most responsible for the most serious crimes. As scholar Kai Ambos noted, the OTP is ignoring “the fact that any process of prioritization and selection necessarily and on purpose entails impunity.”134

B. There are Unjustified Delays in Domestic Proceedings, Particularly Due to Colombia’s Extradition of the Highest Paramilitary Leaders to the United States for Less Serious Crimes.

Another qualitative aspect of the complementarity inquiry the OTP overlooks is the existence of unjustified delays in domestic proceedings. One major obstacle to avoiding unjustified delays in proceedings against higher-level perpetrators is the issue of extradition. The OTP failed to consider the fact that the Colombian government extradited 23 of the most senior paramilitary members to the United States for charges relating to drug trafficking between 2008 and 2009.135 These individuals did have criminal proceedings against them ongoing in Colombia under the Justice and Peace Law prior to their extraditions. Any domestic proceedings against them will be delayed by decades (in light of long sentences they are expected to serve in the U.S.), if the domestic proceedings ever move forward at all. While the government contends this will not affect their domestic accountability, this will result in significant delays in Justice and Peace proceedings against these individuals, if these proceedings ever resume at all. As of May 2012, very few hearings had been organized in camera and only seven of those extradited continue to participate in domestic proceedings.136 There are no overlapping charges in the U.S. jurisdictions, meaning none of these persons are facing charges of war crimes or crimes against humanity in the U.S. Furthermore, these individuals face sentences over thirty years, as identified by the OTP itself. These individuals will not return to Colombia at least until their sentences have been served if they return at all. These circumstances make it unlikely that these individuals will ever face justice for their atrocities in Colombia. The willingness of Colombian authorities to extradite these individuals during their early stages of proceedings under the domestic Justice and Peace Law demonstrate a lack of willingness by the Colombian government to hold these persons accountable for war crimes and crimes against humanity, and even indicate an attempt to shield these persons from prosecution in the ICC. The ICC acknowledges these extraditions but does not sufficiently analyze their negative impact for domestic proceedings, and instead finds that due to their ongoing domestic proceedings, their cases would be inadmissible to the ICC. The OTP should have analyzed whether this constitutes a procedural obstacle to willingness of the Colombian authorities under the complementarity test.137 The Inter-American Commission of Human Rights has also “warned that ‘extradition impedes the investigation and adjudication’ of the crimes committed by these persons.”138

Aside from the extraditions, other ongoing proceedings are moving along very slowly. For instance, as of February 2012, the Human Rights Unit of the Office Attorney General of the Nation reported that 1,579 investigations had been opened since 2000 regarding false positive cases allegedly committed by members of the armed forces.139 1,405 (88.9 percent) were at the investigation stage, 45 had charges filed (2.8 percent), 30 were in the trial stage (1.9 percent), and only 16 cases had judgments rendered (1 percent).140 Most of the cases were at that time still in the preliminary stages of proceedings and had no perpetrators even named.141 The Constitutional Court also noted that out of every 200 cases, fewer than one reaches the stage of Accusation.”142 One report even noted that Colombia is ranked 178 out of 183 countries in terms of judicial efficiency, has the sixth slowest justice system in the world, and the third slowest in Latin America.143

There are several things that account for delays in criminal proceedings. Firstly, jurisdictional disputes between military and ordinary criminal courts contribute to delaying proceedings (some disputes lasting as long as a year), and the transfer of cases from one jurisdiction to another also takes a considerable amount of time.144 Second, as mentioned above, there is little investigation as to patterns of crimes or coordination between investigators and prosecutors of related crimes and hence no sharing of information between cases.145 This results in further delays where mass crimes are investigated as isolated incidents for each new case. Third, there have been frequent changes of prosecutors handling certain cases.146 While often the intended purpose of changing prosecutors has been to make proceedings more effective, this has actually resulted in further delays, as new prosecutors then need to get up to speed on the progress of a particular case or need to develop a new strategy. Fourthly, there have also been allegations that the Office of Military Defense (“DEMIL”), which frequently takes on the defense of military men in cases in which they are accused of violations of human rights and international humanitarian law, has worked to procedurally delay the progress of cases in courts.147 They use delay tactics such as “abusively requesting suspension and postponement of hearings, attorneys of defendants not showing up for hearings (causing the postponement of that court proceeding), or repeated and excessive change of defense counsel, including resigning in the middle of hearings, and improper and abusive lodging of appeals.”148 The OTP does not analyze any of these issues and the extent to which they contribute to unjustified delays in domestic investigations and prosecutions.

C. Domestic Judicial Processes in Colombia Lack Independence and Impartiality.

1. Most Military Suspects are Being or Will be Tried in Military Tribunals Which Do Not have Jurisdiction over Crimes Against Humanity and Will Contribute to Impunity.

The OTP further fails to consider issues that hinder the independence and impartiality of domestic judicial processes, including the broad exercise of jurisdiction of military tribunals. Military courts in Colombia have jurisdiction over war crimes, including enforced disappearance, torture, rape, and other crimes of sexual violence, committed by members of the armed forces.149 However these courts seriously compromise the independence and impartiality of any domestic proceedings for serious international crimes. In December 2012, Congress amended the Constitution to expand the jurisdiction of these military courts.150 This reform gives the military courts greater control over investigations, especially the initial stages of investigations involving members of the security forces and alleged human rights violations.151 This means that many more cases will fall under the jurisdiction of these courts and many cases may be transferred from ordinary courts to military courts.152

From the outset and the way that crimes, especially the false positive cases, are carried out determines that they will fall under military criminal jurisdiction. The way in which soldiers disguise the killings as combat killings, report these incidents as combat killings, destroy evidence such as victims’ identification, and “gather evidence” of the killings after the fact by taking pictures and compiling documentation and statements related to the killings all impair any independent and impartial judicial process.153 Since these cases are reported as combat killings by members of the armed forces, they fall under the jurisdiction of military courts. Even when family members of the victims file complaints in the ordinary court systems, these cases are transferred to the military courts.154 Though many of the crimes have been tried in ordinary criminal courts, as of July 2011, over 400 cases of extrajudicial executions were still before military criminal courts and not all of them have been properly referred to the ordinary jurisdictions.155 Assignees of February 2012, the “Human Rights Unit of the Office Attorney General of the nation reported that among the cases in which a conflict of jurisdiction had been raised, 53 cases had been settled in favor of military justice and 642 cases in favor of the ordinary courts.”156 Even where investigations are carried out by ordinary courts however, members of the military are the first ones to “gather evidence” of false positives (after having already distorted the crime scenes), prejudicing any potential for fair proceedings and proper gathering of evidence for ordinary criminal processes.

Human rights entities such as the Working Group on Extrajudicial Execution of Colombia-Europe-United States Coordination Observatory, the OHCHR, the Special Rapporteur on Extrajudicial Executions, both the Inter-American Court and Commission on Human Rights, and even the Colombian Constitutional Court itself have harshly criticized the Colombian military courts specifically for handling serious crimes especially killings and extrajudicial killings allegedly committed by military members, and rather encourage such crimes to be tried by ordinary courts and judicial mechanisms.157 The OHCHR noted with concern that this reform would “seriously undermine previous efforts taken by the Colombian Government to ensure that human rights violations…are duly investigated, and perpetrators held to account.”158 This would infringe upon “Colombia’s obligations under international humanitarian and human rights law” and would increase the risk for impunity.159

Military courts should have very limited jurisdiction of an exceptional nature and any human rights violations allegedly committed by security forces should be tried in ordinary courts.160 “[I]t is reasonable to believe that officials in the military justice system do not have the impartiality and independence…to investigate effectively and thoroughly human rights violations committed by the military.”161 Military courts in Colombia are not competent to try these serious crimes and lack the independence and impartiality required under international law. It is highly problematic that many of the crimes committed by security forces in Colombia being tried by ordinary courts have become the exception, rather than the rule. This demonstrates unwillingness on the part of the Colombian government to prosecute those responsible for these crimes and indicates an attempt to shield those responsible from criminal responsibility.

2. Threats and Intimidation against Human Rights Defenders, Judges, Prosecutors, Victims, and Witnesses Undermine the Independent and Impartial Administration of Justice.

The OTP further failed to consider another issue hindering the independence and impartiality of domestic proceedings: the commonplace threats, intimidation, and violence committed against human rights defenders, judges, prosecutors, victims, and witnesses. Members of the media and the government, including President of the Republic Juan Manuel Santos, have made declarations discrediting, stigmatizing, and delegitimizing the work of human rights defenders.162 This has exposed human rights defenders to “various attacks on their lives integrity, and freedom” and even criminal prosecutions.163 Judges, prosecutors, and even military criminal justice officials who forward cases to ordinary courts have faced persecution, harassment, threats, and intimidation.164 Most of these acts have been made publicly and openly including through public statements, publications, the press, and Internet media.165 The targets of these crimes have also experienced excessive surveillance by government intelligence agencies, mail interception, and fabricated legal cases brought against them.166 One judge, Gloria Constanza Gaona, who handled a case of murders of young boys and girls by military officers was even killed in March 2011, allegedly by members of the military.167 The Special Rapporteur on the Independence of Judges and Lawyers stressed that “a climate of fear and insecurity appears to reign over the judicial system because of attacks and threats against judges, prosecutors and lawyers that occur to them as a consequence of the cases they deal with or the functions that they discharge.”168

Witnesses can be bought and sold, further undermining the impartiality and independence of criminal proceedings.169 In addition to corruption, witnesses and victims also face threats and intimidation, particularly to prevent reporting crimes or moving forward with cases.170 Some are even killed. The Special Rapporteur on Extrajudicial Executions even noted that “witnesses fear not only the alleged perpetrators, but also—especially in the more rural and remote areas—government officials such as the local attorney general or prosecutor, whom witnesses suspect of cooperating with the alleged perpetrators or of succumbing to their influence.”171 One colonel who admitted responsibility for false positives also noted that he received threats to try to prevent him from testifying and confessing his crimes.172 The violence under which the Colombian judicial system operates clearly has negative implications for the independence and impartiality of domestic proceedings, and thereby hinders genuine investigations and prosecutions. However, the OTP again does not spend any time acknowledging or analyzing this problem.

D. Paramilitary Suspects Have Enjoyed De Facto Amnesty.

Members of paramilitaries who have committed crimes enjoy de facto amnesty in exchange for “demobilization,” which in many cases has not been genuine. They enjoy either no criminal prosecution or significantly reduced sentences.

The OTP has overlooked is de facto amnesty and immunity that exists for paramilitary groups. One of President Uribe’s proposals granted immunity from criminal prosecution for war crimes and crimes against humanity to paramilitary groups that would demobilize, turn in their weapons, and make symbolic acts of contrition such as turning in portions of their land and paying fines and/or reparations to victims of the conflict.173 Members of the AUC also had to acknowledge their crimes in an open court, in exchange for which they would receive suspended sentences or five years of probation.174 Paramilitary members could thereby escape serving prison sentences entirely.175 This has been strongly criticized by human rights groups and the United Nations.176 The OHCHR criticized President Uribe’s proposals as violating the Universal Declaration of Human Rights.177

Furthermore, the government organized a committee to verify compliance with this decree, regarding the laying down of arms and making symbolic acts of contrition, and to ensure that those persons not be subject to prosecutions of war crimes or crimes against humanity.178 However, at least one human rights group has criticized this committee lacking both the capacity and will to carry out such monitoring, thereby resulting in many people simply enjoying impunity and demobilizations not being fully genuine.179 Indeed, some persons who temporarily demobilized joined new paramilitary groups later on, and some demobilizations have been charged as being fake.

Of about 35,411 demobilized paramilitaries as of August 2011, 86 percent benefitted from this de facto amnesty regime. Only 4,539 of them have applied to the procedures under the Justice and Peace Law and only 2,739 have begun the first procedural stage.180 Ultimately, as of May 2012, sentence ruling had only been obtained under procedures of the Justice and Peace Law for ten persons.181

Furthermore, these attempts at demobilization did not lead to the cessation of atrocities attributable to paramilitaries.182 There have also been allegations of fake demobilizations or paramilitaries re-organizing as new paramilitary groups.183 Though the government tried to sacrifice justice in the name of peace, these policies have only facilitated impunity for continued crimes.

V. Conclusion.

Based on the above evidence, a strong argument can be made that the OTP should initiate a formal investigation into the situation of Colombia. The OTP itself has no doubt that war crimes and crimes against humanity under the jurisdiction of the ICC have been committed and continue to be committed in Colombia. The OTP also notes those most responsible for false positive cases in the State security forces have not been held to account, and that impunity for crimes of rape and other sexual violence and forced displacement is still too widespread. A qualitative analysis of the deficiencies of the Colombian judicial system indicates that the Colombian authorities are unwilling to genuinely investigate and prosecute the highest-level perpetrators of war crimes and crimes against humanity. Colombian authorities have attempted to shield those perpetrators from criminal responsibility, there are unjustified delays in domestic judicial processes, and the judicial system lacks independence and impartiality. Adopting a more qualitative approach to the complementarity test would allow the OTP to more effectively identify situations ripe for investigation in the future, particularly in non-African states, as well as bolster the reputation of the ICC, and eliminate some of the criticisms of the court including the charge of an Africa-bias. Based on these considerations, the OTP should engage in a more qualitative analysis of the situation in Colombia and initiate a formal investigation.

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

  1. 1.

    Timothy Posnanski, Colombia Weeps but Doesn’t Surrender: The Battle for Peace in Colombia’s Civil War and the Problematic Solutions of President Alvaro Uribe, 4 Wash. U. Global Stud. L. Rev. 719, 721 (2005).

  2. 2.

    Id. at 719 nn.1, 15 (citing Garry Leech, Fifty Years of Violence, Colom. J. (May 1999), available online (last visited Mar. 5, 2013); Juan Forero, 11 Killed in Bombing in Colombian City, N.Y. Times, Sept. 29, 2003, at A13).

  3. 3.

    Id. at 721 n.16 (citing Leech, supra note 2).

  4. 4.

    Id. at 722 n.18.

  5. 5.

    International Criminal Court Office of the Prosecutor, Situation in Colombia: Interim Report, at ¶ 41 (Nov. 2012), available online (last visited Mar. 6, 2013) [hereinafter Interim Report].

  6. 6.

    Id. at ¶ 41.

  7. 7.

    Posnanski, supra note 1, at 722 n.19.

  8. 8.

    Id. at 722 nn.20-1.

  9. 9.

    Id. at 722 n.22.

  10. 10.

    Id. at 722 n.23.

  11. 11.

    Id. at 722 nn.23-4 (citing Leech, supra note 2; Human Rights Watch, War Without Quarter: Colombia and International Humanitarian Law (1998), available online.

  12. 12.

    Id. at 722 n.25.

  13. 13.

    Id. at 726, n.47 (citing Bureau for International Narcotics and Law Enforcement Affairs, Department of State, Environmental Consequences of the Illicit Coca Trade (Bureau for International Narcotics and Law Enforcement Affairs 2003), available online (last visited Mar. 5, 2013).

  14. 14.

    See e.g., International Committee of the Red Cross, Country Report: Colombia, People on War Project (Greenberg Research, Inc. 1999), available online (last visited Mar. 6, 2013); U.S. Department of State, Country Reports on Human Rights Practices for 2011: Colombia (2012), available online (last visited Mar. 6, 2013).

  15. 15.

    Interim Report, supra note 5, at ¶ 113.

  16. 16.

    Fédération Internationale des Droits de l’Homme, Colombia: The European Parliament can Contribute to End the Commission of International Crimes and to Respect the Work of Human Rights Defenders and Trade Unionists 5, 17 (May 2012), available online (last visited Mar. 6, 2013) [hereinafter FIDH, European Parliament]; Fédération Internationale des Droits de l’Homme, Colombia: The War is Measured in Litres of Blood 8 (May 2012), available online (last visited Mar. 6, 2013) [hereinafter FIDH, Litres of Blood].

  17. 17.

    FIDH, European Parliament, supra note 16; FIDH, Litres of Blood, supra note 16, at 8 n.17 (citing United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, ¶ 26, U.N. Doc. A/HRC/16/22 (Feb. 3, 2011). In a report prepared by the data bank of the Centre for Research and Popular Education (CINEP), a vast majority of the extrajudicial executions reported since the beginning of the conflict occurred between 2002 and 2008. FIDH, Litres of Blood, supra note 16, at 17 n.55; Interim Report, supra note 5, at ¶¶ 93, 104; Human Rights Council, Written Statement Submitted by Amnesty International to 22nd Session of the Human Rights Council, U.N. Doc. A/HRC/22/NGO/174 (Feb. 27, 2013); U.S. Department of State, supra note 14.

  18. 18.

    FIDH, European Parliament, supra note 16, at 6, n.4.

  19. 19.

    FIDH, Litres of Blood, supra note 16, at 17-8 nn.56-7.

  20. 20.

    Posnanski, supra note 1, at 724.

  21. 21.

    Interim Report, supra note 5, at ¶ 45.

  22. 22.

    Id. at ¶ 45.

  23. 23.

    FIDH, Litres of Blood, supra note 16, at 18 nn.58-9.

  24. 24.

    Interim Report, supra note 5, at ¶ 47.

  25. 25.

    Id. at ¶ 48.

  26. 26.

    Id. at ¶ 26 n.108, ¶ 49 nn.42-3, ¶ 83 n.103, ¶ 91 nn.115-7 (citing Oxfam International, Campaign Rape and other Violence: Leave my Body Out of War, First Survey on the Prevalence of Sexual Violence against Women in the Context of the Colombian Armed Conflict 2001-2009, 13-4, 16-7, 19, 20, 24, 25 (Jan. 2011), available online (last visited Mar. 6, 2013)).

  27. 27.

    Posnanski, supra note 1, at 725 n.37 (citing Ruth Morris, Colombia Conflict Drawing in More Children; Human Rights Watch Reports that 11,000 Underage Combatants—as Young as 12—are Fighting for Rival Militias in the Civil War, L.A. Times, Sept. 19, 2003, at A3); U.S. Department of State, supra note 14, at 18-9.

  28. 28.

    Id. at 725 n.39.

  29. 29.

    FIDH, European Parliament, supra note 16, at 5, 7, 19-20, n.13; see also European Center for Constitutional and Human Rights, Violence Against Trade Unionists in Colombia: Why the International Criminal Court Must Investigate (2012), available online (last visited Mar. 6, 2013).

  30. 30.

    FIDH, European Parliament, supra note 16, at 7 n.14.

  31. 31.

    Amnesty International, Colombia: Impunity Perpetuates Ongoing Human Rights Violations—Submission to the United Nations Universal Periodic Review 6 (2013), available online (last visited Mar. 6, 2013) [hereinafter Amnesty, Submission to UN Universal Periodic Review].

  32. 32.

    FIDH, European Parliament, supra note 16, at 5, 19-20.

  33. 33.

    Id.

  34. 34.

    Posnanski, supra note 1, at 726, n.40.

  35. 35.

    FIDH, European Parliament, supra note 16, at 7 nn.16-7.

  36. 36.

    Interim Report, supra note 5, at ¶ 46.

  37. 37.

    Id. at ¶¶ 26, 39.

  38. 38.

    FIDH, European Parliament, supra note 16, at n.15.

  39. 39.

    Id. at 6 n.12.

  40. 40.

    Interim Report, supra note 5, at ¶ 3.

  41. 41.

    Id.

  42. 42.

    Id. at ¶ 1.

  43. 43.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at art. 53(1).

  44. 44.

    Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Case No. ICC-01/09, ¶ 188 (Int’l Crim. Ct. Mar. 31, 2010) [hereinafter ICC Kenya, Investigation Authorization].

  45. 45.

    Interim Report, supra note 5, at ¶ 23 n.4 (citing ICC Kenya, Investigation Authorization, supra note 44, at ¶ 35), available online (last visited Mar. 6, 2013)).

  46. 46.

    Interim Report, supra note 5, at ¶ 5, 51.

  47. 47.

    Id. at ¶ 6.

  48. 48.

    Id. at ¶ 9.

  49. 49.

    Id. at ¶ 10.

  50. 50.

    Rome Statute, supra note 43, at art. 17.

  51. 51.

    Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, Case No. ICC-01/04-01/07, ¶ 76, 78 (Int’l Crim. Ct. Sept. 25, 2009) [hereinafter ICC Kenya, Katanga Appeal, Admissibility].

  52. 52.

    FIDH, Litres of Blood, supra note 16, at 33 n.107 (citing Prosecutor v. Ruto and Sang, Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Case No. ICC-01/09-1/11, ¶ 1 (Int’l Crim. Ct. Aug. 30, 2011), available online (last visited Mar. 6, 2013)).

  53. 53.

    ICC Kenya, Investigation Authorization, supra note 44, at ¶ 188.

  54. 54.

    Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Case No. ICC-01/09-02/11, ¶ 50 (Int’l Crim. Ct. May 30, 2011).

  55. 55.

    ICC Kenya, Katanga Appeal, Admissibility, supra note 51, at ¶ 50.

  56. 56.

    Id. at ¶¶ 75, 78.

  57. 57.

    ICC Kenya, Katanga Appeal, Admissibility, supra note 51, at ¶ 78.

  58. 58.

    Id. at ¶ 79.

  59. 59.

    See e.g., M.J. Midtbø, The Principle of Complementarity: Admissibility to the International Criminal Court 9-11 (2006), available online (last visited Mar. 6, 2013).

  60. 60.

    Jennifer S. Easterday, Deciding the Fate of Complementarity: A Colombian Case Study 60 (2009), available online (last visited Mar. 6, 2013).

  61. 61.

    Rome Statute, supra note 43, at art.17(2)(c).

  62. 62.

    Id. at preamble.

  63. 63.

    ICC OTP, Informal Expert Paper: The Principle of Complementarity in Practice 28-31 (2003), available online (last visited Mar. 6, 2013) [hereinafter OTP Expert Paper on Complementarity].

  64. 64.

    Midtbø, supra note 59, at 15.

  65. 65.

    OTP Expert Paper on Complementarity, supra note 63; Caroline Fransson, The Principle of Complementarity in the Rome Statute 44 (2004), available online (last visited Mar. 6, 2013).

  66. 66.

    OTP Expert Paper on Complementarity, supra note 63.

  67. 67.

    Id.; Fransson, supra note 65.

  68. 68.

    OTP Expert Paper on Complementarity, supra note 63.

  69. 69.

    Id.; Kai Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court: Is there Sufficient Willingness and Ability on the Part of the Colombian Authorities or Should the Prosecutor Open an Investigation Now? 6 (2011), available online (last visited Mar. 6, 2013) [hereinafter Ambos, Colombian Peace Process]; Fransson, supra note 65, at 43.

  70. 70.

    Midtbø, supra note 59, at 15.

  71. 71.

    Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity, 7 Max Planck Y.B. U.N. L. 591, 610 (2003).

  72. 72.

    OTP Expert Paper on Complementarity, supra note 63; Fransson, supra note 65, at 43.

  73. 73.

    OTP Expert Paper on Complementarity, supra note 63.

  74. 74.

    Id.

  75. 75.

    Ambos, Colombian Peace Process, supra note 69.

  76. 76.

    OTP Expert Paper on Complementarity, supra note 63; Midtbø, supra note 59, at 17.

  77. 77.

    OTP Expert Paper on Complementarity, supra note 63.

  78. 78.

    Id.

  79. 79.

    OTP Expert Paper on Complementarity, supra note 63; Ambos, Colombian Peace Process, supra note 69.

  80. 80.

    OTP Expert Paper on Complementarity, supra note 63.

  81. 81.

    Id.; Ambos, Colombian Peace Process, supra note 69.

  82. 82.

    OTP Expert Paper on Complementarity, supra note 63, at ¶ 46.

  83. 83.

    See e.g., Easterday, supra note 60, at 84.

  84. 84.

    Interim Report, supra note 5, at ¶ 4.

  85. 85.

    Id. at ¶ 12-3, 160-96, Annex pp. 70-80.

  86. 86.

    Id. at ¶ 15, Annex pp. 80-7.

  87. 87.

    Id. at ¶ 16-8, 19, Annex pp. 88-93.

  88. 88.

    Kai Ambos, ICC OTP Report on the Situation in Colombia—A Critical Analysis, Blog of the European Journal of International Law (Feb. 1, 2013), available online (last visited Mar. 6, 2013).

  89. 89.

    Interim Report, supra note 5, at ¶ 211-2.

  90. 90.

    Id. at ¶ 216; see also Press Release, Amnesty International, Colombia: Conviction for Conflict-Related Rape and Murder a Rare Victory (Aug. 28, 2012), available online (last visited Mar. 6, 2013).

  91. 91.

    Interim Report, supra note 5, at ¶ 196.

  92. 92.

    Id.

  93. 93.

    Id. at ¶ 183-4, 187-90, 192, 194-5.

  94. 94.

    FIDH, Litres of Blood, supra note 16, at 36; FIDH, European Parliament, supra note 16; International Center for Transitional Justice, ICTJ Program Report: Colombia—Interview with Maria Camila Moreno (2012), available online (last visited Mar. 6, 2013).

  95. 95.

    FIDH, European Parliament, supra note 16; In the Shadow of the ICC: Colombia and International Criminal Justice 43 (2011), available online (last visited Mar. 6, 2013).

  96. 96.

    Id.

  97. 97.

    Interim Report, supra note 5, at ¶ 88.

  98. 98.

    FIDH, European Parliament, supra note 16, at 17 n.65 (citing United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, ¶ 33, U.N. Doc. A/HRC/19/21/Add.3 (Jan. 31, 2012)).

  99. 99.

    Id. at 25.

  100. 100.

    Id.

  101. 101.

    Id. at 25 n.84.

  102. 102.

    Id.

  103. 103.

    Id.

  104. 104.

    Id. at 31.

  105. 105.

    Id. at 36-7.

  106. 106.

    Id. at 36 n.117.

  107. 107.

    Id. at 29 nn.96-98; 30-31 n.101.

  108. 108.

    Id. at 31 n.100.

  109. 109.

    Id. at 30.

  110. 110.

    Interim Report, supra note 5, at ¶ 100.

  111. 111.

    Id. at 31 n.103.

  112. 112.

    Id. at 31.

  113. 113.

    Id. at 30.

  114. 114.

    Id. at 31.

  115. 115.

    Id. at 37.

  116. 116.

    Id. at 38.

  117. 117.

    Id.

  118. 118.

    Id. at 31.

  119. 119.

    Id.; see also Amnesty International, The Human Rights Situation in Colombia: Amnesty International’s Written Statement to the 22nd Session of the UN Human Rights Council, Doc. AMR 23/011/2013 (Feb. 25, 2013), available online (last visited Mar. 6, 2013) (the military justice system “has a record of closing such investigations [of extrajudicial killings by military forces] without holding those responsible properly to account”).

  120. 120.

    FIDH, Litres of Blood, supra note 16, at 34; International Center for Transitional Justice, supra note 94; In the Shadow of the ICC: Colombia and International Criminal Justice, supra note 95, at 43.

  121. 121.

    FIDH, Litres of Blood, supra note 16, at 35.

  122. 122.

    Id. at 34 n.111.

  123. 123.

    Id. at 34.

  124. 124.

    Id. at 35 n.112; International Center for Transitional Justice, supra note 94.

  125. 125.

    Interim Report, supra note 5.

  126. 126.

    FIDH, European Parliament, supra note 16, at 16.

  127. 127.

    Id.; Amnesty, Submission to UN Universal Periodic Review, supra note 31.

  128. 128.

    Interim Report, supra note 5, at ¶ 202.

  129. 129.

    FIDH, European Parliament, supra note 16, at 16; Amnesty, Submission to UN Universal Periodic Review, supra note 31.

  130. 130.

    FIDH, Litres of Blood, supra note 16, at 46; Human Rights Watch, Colombia: Amend ‘Legal Framework for Peace’ Bill (May 31, 2012), available online (last visited Mar. 6, 2013).

  131. 131.

    Interim Report, supra note 5, at ¶ 205.

  132. 132.

    Id. at ¶ 205.

  133. 133.

    Id. at ¶ 206.

  134. 134.

    Ambos, supra note 88.

  135. 135.

    FIDH, European Parliament, supra note 16, at 15.

  136. 136.

    Id.; Interim Report, supra note 5, at ¶ 170.

  137. 137.

    Ambos, supra note 88.

  138. 138.

    Id.

  139. 139.

    FIDH, Litres of Blood, supra note 16, at 33.

  140. 140.

    Id. at 33 n.106, 49.

  141. 141.

    Id. at 33.

  142. 142.

    Interim Report, supra note 5, at ¶ 213.

  143. 143.

    U.S. Office on Colombia, Impunity: Has Implementation of the Accusatory Legal System been an Effective Response to the Fight Against Impunity in Colombia? 4 (2012), available online (last visited Mar. 6, 2013).

  144. 144.

    FIDH, Litres of Blood, supra note 16, at 50 n.182.

  145. 145.

    Id. at 34.

  146. 146.

    Id. at 50 nn.183-4; Interim Report, supra note 5, at ¶ 172.

  147. 147.

    FIDH, Litres of Blood, supra note 16, at 50 n.186.

  148. 148.

    Id., at 51 nn.189-91.

  149. 149.

    Amnesty International, Colombia: Reform Will Boost Impunity for Military and Police Human Rights Abusers (Dec. 6, 2012), available online (last visited Mar. 6, 2013).

  150. 150.

    Amnesty, Submission to UN Universal Periodic Review, supra note 31, at 6; Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Follow-Up Country Recommendations: Colombia, ¶ 12 U.N. Doc. A/HRC/20/22Add.2 (May 15, 2012) [hereafter UN Special Rapporteur].

  151. 151.

    Amnesty, Submission to UN Universal Periodic Review, supra note 31, at 6; UN Special Rapporteur, supra note 150, at ¶ 25.

  152. 152.

    Amnesty, Submission to UN Universal Periodic Review, supra note 31, at 6; UN Special Rapporteur, supra note 151, at ¶ 25.

  153. 153.

    FIDH, Litres of Blood, supra note 16, at 39.

  154. 154.

    Id. at 40 n.128.

  155. 155.

    Id. at 42 n.142.

  156. 156.

    Id.

  157. 157.

    Id. at 39 n.127, 40 n.128-30, 41 n.133-4, 139; UN Special Rapporteur, supra note 151, at ¶ 12; U.N. High Commissioner for Human Rights, Annual Report of the U.N. High Commissioner for Human Rights, ¶ 79, U.N. Doc. A/HRC/22/17/Add.3 (Jan. 7, 2013); Press Release, Inter-American Commission on Human Rights, IACHR Expresses Concern over Constitutional Reform in Colombia (Jan. 4, 2013), available online (last visited Mar. 6, 2013).

  158. 158.

    U.N. High Commissioner for Human Rights, UN Human Rights Office Concerned Over Colombia’s Military Justice Reform Bid, U.N. News Centre (Nov. 27, 2012), available online (last visited Mar. 6, 2013).

  159. 159.

    Id.

  160. 160.

    FIDH, Litres of Blood, supra note 16, at 41 nn.135-7 (citing Observations and Recommendations of the Human Rights Committee to Colombia, ¶ 5-6, U.N. Doc. CCPR/C/79/Add.2 (Sept. 25, 1992); Observations and Recommendations of the Human Rights Committee to Peru, ¶ 8, U.N. Doc. CCPR/C/79/Add.8 (Sept. 25, 1992); Observations and Recommendations of the Human Rights Committee to Peru, ¶ 12, U.N. Doc. CCPR/C/79/Add.67 (July 25, 1996); Observations and Recommendations of the Human Rights Committee to Peru, ¶ 11, U.N. Doc. CCPR/CO/70/PER (Nov. 15, 2000); Observations and Recommendations of the Human Rights Committee to Venezuela, ¶ 7, 10, U.N. Doc. CCPR/C/79/Add.13 (Dec. 28, 1992); Civil Liberties Organization v. Nigeria, Comm. No. 151/96 (African Comm’n on Human and Peoples’ Rights 1999); Annette Pagnoulle (on behalf of Abdoulaye Mazou) vs. Cameroon, Comm. No. 39/90 (African Comm’n on Human and Peoples’ Rights 1997); Int’l Pen and Others v. Nigeria, Comm. Nos. 137/94, 139/94, and 161/97 (African Comm’n on Human and Peoples’ Rights 1998)); UN Special Rapporteur, supra note 31, at ¶ 24.

  161. 161.

    FIDH, Litres of Blood, supra note 16, at 40 n.131 (citing Case of Radilla Pacheco v. Mexico, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 209, ¶ 273 (Nov. 23, 2009); Rosendo Cantú et al. v. Mexico, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 216, ¶ 16 (Aug. 31, 2010)).

  162. 162.

    FIDH, European Parliament, supra note 16, at 21; Human Rights Council, Written Statement Submitted by Amnesty International to 19th Session of the Human Rights Council, U.N. Doc. A/HRC/19/NGO/26 (Feb. 16, 2012).

  163. 163.

    Id.

  164. 164.

    FIDH, Litres of Blood, supra note 16, at 45 nn.157-8, 47; UN Special Rapporteur, supra note 151, at ¶ 18, 20.

  165. 165.

    FIDH, Litres of Blood, supra note 16, at 47 n.162; see e.g., Fédération Internationale des Droits de l’Homme, Colombia: Illegal Activities Perpetrated by the DAS (May 2010); Human Rights Watch, World Report 2012—Colombia, available online (last visited Mar. 6, 2013); Human Rights Council, Written Statement Submitted by the Jubilee Campaign to 18th Session of the Human Rights Council, U.N. Doc. A/HRC/18/NGO/68 (Sept. 12, 2011); Human Rights Council, Written Statement Submitted by the International Fellowship of Reconciliation to 19th Session of the Human Rights Council, U.N. Doc. A/HRC/19/NGO/154 (Mar. 22, 2012); U.N. High Commissioner for Human Rights, Annual Report of the U.N. High Commissioner for Human Rights, ¶ 74, U.N. Doc. A/HRC/22/17/Add.3 (Jan. 7, 2013).

  166. 166.

    FIDH, Litres of Blood, supra note 16, at 47 n.162; see e.g., Fédération Internationale des Droits de l’Homme, Colombia: Illegal Activities Perpetrated by the DAS (May 2010); Human Rights Watch, World Report 2012—Colombia, available online (last visited Mar. 6, 2013); Human Rights Council, Written Statement Submitted by the Jubilee Campaign to 18th Session of the Human Rights Council, U.N. Doc. A/HRC/18/NGO/68 (Sept. 12, 2011); Human Rights Council, Written Statement Submitted by the International Fellowship of Reconciliation to 19th Session of the Human Rights Council, U.N. Doc. A/HRC/19/NGO/154 (Mar. 22, 2012); U.N. High Commissioner for Human Rights, Annual Rep. of the U.N. High Commissioner for Human Rights, ¶ 74, U.N. Doc. A/HRC/22/17/Add.3 (Jan. 7, 2013).

  167. 167.

    Id.

  168. 168.

    U.N. Office of the High Commissioner for Human Rights, Colombia: U.N. Expert on Independence of Judges and Lawyers Expresses Need for Judicial Strengthening (Dec. 17, 2009), available online (last visited Mar. 6, 2013).

  169. 169.

    FIDH, Litres of Blood, supra note 16, at 52 n.198.

  170. 170.

    Easterday, supra note 60, at 99.

  171. 171.

    FIDH, Litres of Blood, supra note 16, at 48 nn.171-2.

  172. 172.

    Id. at 49 n.175.

  173. 173.

    Posnanski, supra note 1, at 727, nn.52-4.

  174. 174.

    Id. at 728, nn.59-60.

  175. 175.

    Id.

  176. 176.

    Id. at 720 n.9, 730 n.75, 735 n.99-101, 740 n.130.

  177. 177.

    Id. at 735 n.100.

  178. 178.

    FIDH, European Parliament, supra note 16, at 14 nn.47-50.

  179. 179.

    Id.

  180. 180.

    Id. at 15 nn.53-4.

  181. 181.

    Id. at 15 n.54.

  182. 182.

    Id. at 14.

  183. 183.

    Id.

The office of the prosecutor failed to investigate the Kenyan case and instead depended heavily on biased and 'tribalized' civil (currently evil) society . These civil societies with political patronage wanted to eliminate some individuals from political scene. They took advantage of the ICC prosecutor office's (Ocampo) need for easy evidence to nail some Africans as examples. The former prosecutor is on record saying that he will make the Kenyan case an example to the world (an example of how to pervert justice by ICC).

To please the prosecutor they did several patronized polls with pollsters connected with politicians who wanted to eliminate their colleagues to show that Kenyans were supporting them. Yet in the real sense Kenyans wanted local mechanism devoid of manipulation to solve their problem. Impunity can not be tolerated but when an institution like ICC practice impunity through shoddy prosecution and judgment, it needs to be disbanded or its jurisdiction be looked into.ICC's role in Kenyan case is displaced.

First the Kenyan case was not referred to ICC by the state or by Kenyans but by Kofi Anan and Western government who wanted instant dispensation of justice their way. Africa dispensation of justice cannot be compared to that of the west. Rwandan case is a very good example. Kenyan election is another one.

Secondly Kenyan case is political with some politicians and their civil society side kicks driving the case. Has ICC done any audit of this case to evaluate any political patronage of the case? Has ICC questioned the motive of this case? Has ICC questioned the witnesses for alleged coaching by civil society?

There are many questions to be answered by ICC prosecutor about Kenyan case. But the conclusion of many Kenyans is that someone in the political & civil society arena is driving the case and that this case is for satisfaction of EGO rather than JUSTICE!

What prompted ICC judge to withdraw herself from Kenya's case is a pointer of how the prosecution office has been biased in investigating cases affecting Africans. The judge said the prosecutor did not investigate her case properly before even requesting for confirmation of charges. Question now is what did the pretrial chamber confirm. In Kenya many believe that pretrial chamber charges were compromised to confirm the cases. It is now turning to be true.

It is not inappropriate because if somebody has committed a crime, he/she ought to be prosecuted but the issue is that the ICC is only interested with African law offenders. Why Africa? Is it Africans who commit crimes only? Personally, I am losing faith with the Court and wish to request the judges and the OTP to explain to the world why they are overlooking other law offenders from other countries outside Africa. The way they especially handled the Kenyan cases investigations leaves much to be desired. We know that the PEV victims need justice but are we offering justice by prosecuting the offenders or people we think should carry the burden? Is the OTP especially convinced that Uhuru Kenyatta committed the crimes as alleged or is she just looking for ways to make her case sail through no matter what? I have followed this case closely and the issues raised by the defense have repeatedly been overlooked concerning the incredibility of evidence presented by the OTP. Are the judges offering justice to both the victims and the accused? It's my view that ICC should review the way it handles its cases and the way it prosecutes by being unbiased.

I would like to know why, after witnesses stepped down from the Kenyan cases citing coaching by the some Kenyan human right watchdogs, the ICC did not even follow up to investigate or question this allegations yet just yesterday the judges came out allowing the OTP to amend Kenyatta's charges citing that the prosecutor complained on the Kenyan government non-participation and alleged witness intimidation which we have not seen her provide any prove yet? Why favor one side of the case? Why listen to one side only? Is this fair?

I. Introduction

Although the ICC theoretically should not have focused its cases in Africa, which has targeted the ICC to understandable criticism of bias, this perception of bias is, in actuality, not justified and is an unfortunate by-product of the limitations the OTP faces in selecting and prosecuting cases. Focus in Africa has allowed the ICC to establish credibility, international support, and eventual success by targeting regions that would be least controversial and governments that are unstable and weaker. Due to the breadth of the Rome Statute and the jurisdictional constraints it imposes on the OTP, the Prosecutor is limited in its ability to focus on other regions. To provide comfort to the Prosecutor while still improving the ICC’s credibility, the Prosecutor must rightfully exercise careful judgment in selecting its cases. Human rights situations in Africa have plagued social media and international news sources. The few cases that the Prosecutor has voluntarily chosen to investigate and pursue in African countries have certainly been far from haphazard.

II. Critics

Critics argue that focusing cases in Africa is undemocratic, reflects a white colonial agenda imposed on Africa, and serves as a medium for the ICC to use Africa for experimentation for its ideas. Critics repeatedly post images displaying white ICC judges sitting tall above the African defendant in court. While these attacks on the ICC are effective in soliciting critiques of the ICC’s methodology in focusing its cases in Africa, these images also tend to be skewed. Currently, one third (six out of eighteen) of the ICC judges represent African nations, notably including a Kenyan judge. In evaluating the merits of these African bias attacks therefore, caution must be exercised.

III. Unwilling or Unable Standard

Strong reasons exist for the OTP having focused its cases in Africa. Under the Rome Treaty, the ICC is only able to hear cases before it if the local government is itself “unwilling or unable” to prosecute, investigate, and bring justice to the victims. This requirement justifiably leads the ICC to focus its cases in Africa due to the magnitude of the human rights violations that have been carried out in the regions in question. The “unwilling or unable” standard is a high threshold to meet and the ICC must defer to national courts. It is prohibited from opening its own investigation in regions that do not meet this standard. Among the countries in the world where human rights violations have occurred, it has been easier for the ICC to demonstrate that governments of the targeted African nations are “unwilling” or “unable,” particularly “unable” to achieve justice itself. For example, in the post-election violence surrounding the Kenyan situation, the cases were referred to the ICC only after Kenya failed to prosecute suspects locally. Although Kenya claimed to make attempts at reform and attempts at investigating the situation in the 2007 post-election abuses, its activities did not extend to the particular suspects who were indicted by the ICC. In the Democratic Republic of the Congo (DRC), the justice system is plagued with corruption and politics. The M23, the rebel group whose leader was the sought-after war criminal, Bosco Ntaganda, was so powerful at one time and was so heavily loaded with arms and terror, that locally prosecuting some of these individuals could have extremely damaging consequences to the well-being of the civilian population and would result in a chaotic mess. The DRC is perhaps the perfect example of inability of the government to prosecute suspects.

IV. Assumption of Risk

States Parties that are signatories of the Rome Treaty open themselves up to ICC investigation and attack by virtue of having signed the Treaty. In the case of Kenya, the nation had itself signed the Rome Treaty in August 1999. By making its mark in the sphere of protecting its citizens against human rights abuses, the nation and government opened itself up to investigation. It assumed the risk of its suspected citizens facing charges by the ICC. Any complaints made therefore by it and by critics against Africa focus therefore diminish in merit due to the risk the country has agreed to accept that its citizens could face charges if the government is not in an adequate position to bring the charges itself.

V. Probability of Conviction

A high rate of conviction gives the OTP credibility and thereby enhances the effectiveness and strength of the ICC as an institution. The ICC has the highest chance of success in Africa. First, the African regions tend to be closer in proximity to The Hague than other continents suffering human rights abuses. This is particularly helpful to the prosecution team in terms of saving on costs for transporting witnesses, transporting evidence, and transporting ICC staff and investigators. Witnesses may also be more willing to testify in court if travel distance and time commitments are lower. Furthermore, the number of victims affected by the crimes in Africa may be higher than in other regions (more widespread), making the job less burdensome for the OTP. Although technology in Africa is not as advanced as it may be in other regions, which makes accuracy and efficiency in evidence gathering in Africa more difficult for the OTP, the advantages brought by proximity increase the chances of the OTP sustaining convictions in African nations.

The African situations also come with serious and more visible human rights violations than in other regions. Crimes in globally problematic regions must rise to the level of war crimes, crimes against humanity, and genocide in order to come under the umbrella of ICC jurisdiction. This includes crimes such as mass rape, mass murder, and child soldier recruitment. The ICC’s Africa cases are legitimate and can all be more readily confirmed as righteous humanitarian crises. The effects of the M23’s presence in the DRC were quite visible. A ride around the city of Goma reveals the magnitude of necessary international aid in the city, present to provide relief to the suffering population. Convoys of Doctors without Borders, human aid organizations, the United Nations’