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. ↩

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). ↩

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. ↩

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:

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.