Invited Experts on Africa Question

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

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

The Inevitable Practice of the Office of the Prosecutor

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

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

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

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

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

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

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

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

Summary

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

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

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

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

Response to Question: “Is the ICC Targeting Africa Inappropriately?”

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

Summary

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

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

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

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

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

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

Has the International Criminal Court Inappropriately Targeted Africa?

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

Summary

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

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

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

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

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

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

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

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

Summary

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

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

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

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

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