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- miltonlaw: Africa and the Concept of Positive Complementarity The answer to the allegation that Africa is inappropriately targeted by international criminal court could as well lie in the sui generis concept of positive complementary. My doctoral thesis research title is: The international criminal court and positive complementarity: Institutional and legal framework. I. Introduction It is the... (more)
- almariam: Saving the ICC: A Proposal for a Witness Protection Program Justice delayed, again? In late January of this year, I wrote a commentary entitled, “Kenyatta at the ICC: Is Justice Deferred, Justice Denied?” In that commentary I openly expressed my angst over the endless delays, postponements and backpedalling talk about “false evidence” and “lying witnesses” surrounding the Uhuru Kenyatta trial at The Hague. I felt there was perhaps... (more)
- almariam: Kenyatta at the ICC: Is Justice Deferred, Justice Denied? I am getting a little jittery over the repeated delays, postponements and all the backpedalling talk about “false evidence” and “lying witnesses” in the Uhuru Muigai Kenyatta International Criminal court trial. I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook? There has been feverish... (more)
- Marius_: How can we choose to hide behind claims of moral inappropriateness when - in fact - these crimes are indeed taking place on sacred African soil!? Yes! It is imperative that the ICC should, despite the influence of the 'Powers-that-be', focus on initiating proceedings on crimes within its jurisdiction taking place outside the African continent, so as to meet the dictates of fairness. But that is not to say that the ongoing cases in Africa are without their individual basis. The victims of those... (more)
- ecalmeyer: Mass African Withdrawal from the ICC: Far from Reality Introduction One hundred and twenty two countries are States Parties to the Rome Statute of the International Criminal Court (“ICC”).1 Thirty-four are in Africa, making African states the largest continental bloc of ICC signatory countries.2 Many African nations believe that the International Criminal... (more)
- John Litwin: The International Criminal Court and African Politics Introduction Given the recent vote by the Kenyan parliament to withdraw from the Rome Statute,1 it is necessary to examine the non-meritorious, political reasons that may be motivating the proposed African boycott of the International Criminal Court (ICC).2 Comprising over a quarter of all member-states,3 a withdrawal from the ICC by... (more)
- Jenevieve Discar: Potential ICC Responses to Kenya’s Proposed Withdrawal Introduction Kenya’s recent, precedent-setting vote to withdraw from the ICC highlights the critical nature of this debate; regardless of whether the ICC is actually unfairly biased towards Africa or not, the perceived bias is greatly affecting its reputation and its ability to operate effectively. Kenya’s withdrawal should... (more)
- emilygiven: Complementarity: Too Stringent a Test? While critics claim that the ICC’s focus on crimes committed in Africa is inappropriate, its defenders cite the Prosecutor’s preliminary examinations of non-African crimes as evidence to the contrary. Because the Office of the Prosecutor is evaluating situations outside Africa with an even hand, defenders argue, the Court exhibits no bias against Africa. Several preliminary examinations of non-African... (more)
- karen.kwok: Syria: a Case Study of the ICC’s Limited Jurisdiction Since its inception in 2002, all situations under investigation or prosecution have been in Africa. Critics have claimed that the ICC’s focus on Africa has been inappropriate. In particular, the ICC has been accused of having an African-bias in situation selection. However, such critiques regarding ICC’s unfair targeting of Africa... (more)
- kennygbite: The question “Is the International Criminal Court targeting Africa inappropriately?” is influenced obviously by the fact that all the cases so far being handled by the ICC fall within Africa as if crimes within the jurisdiction of the Court are not taking place in other continents. However, assuming Africans so far indicted by the Court actually committed these crimes, should the question still arise simply because their counterparts in other continents are not being investigated nor prosecuted... (more)
Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”
A European ICC? The ICC and Modern European Paternalism in Africa
The International Criminal Court (ICC) portrays itself as an apolitical institution that will take action irrespective of their targets’ nationality or political position. However, some people, particularly African leaders and post-colonial scholars, look at the Court’s caseload and wonder why, if that is the case, its only prosecutions have been of African nationals. African leaders and Afrophiles portray the ICC as another way in which the West is establishing a neocolonial relationship in which Western countries, particularly those in Europe, through the use of conditional support and military humanitarian intervention, maintain authority over their former colonies. They perceive the ICC, while not as European per se, as an institution modeled on European principles and administered by a global elite inculcated in Western values and trained in the Western mode.
Obviously European countries and the European Union (EU) as a whole do not perceive themselves as imperial powers. Europe is the originator and a strong proponent of universal human rights, and has fostered many institutions for their strict enforcement on the continent and worldwide. If these rights are indeed universal, it makes no sense to restrict their application to Europe. Rather, they should be applicable to all individuals, regardless of nationality, and perpetrators of the worst crimes should be held responsible regardless of where those crimes took place. In this view, the International Criminal Court is a natural extension of other international human rights projects, and is no more biased against Africa than it is Western or European.
In this comment, I argue that the ICC is a part of a European-imposed and implemented international human rights project which has a particular focus on Europe’s African colonies. The perception of the ICC as a European institution biased against Africa is predicated upon (1) the ICC’s embededness in the international human rights system, which is perceived by some to be a Western imposition, (2) European verbal and fiscal support for the Court, (3) Europe’s heightened, paternalistic sense of responsibility towards Africa, particularly in the areas of economics and human rights violations, which has been fostered by its identity as a former colonizer and its mistakes in the region after decolonization, and (4) Europe’s perception and presentation of itself as a normative model for the international community, in whose recreation it can instruct others, which implies a sense of European superiority and conjures the specter of Europe attempting to remake Africa in its own image.
In part II.A, I discuss how the International Criminal Court’s placement in the international justice system, its Westernized staff, and its reliance on European support and funding has led to the perception that the Court is Europe’s alter ego. In part II, I show how the history of the international human rights trials as an imposition on defeated states by European powers has created a system which, while now almost universally accepted, is still European in nature. In part III, I detail how the Court can be interpreted as a complement to other forms of European interventionism in the region. In part IV, I examine how Europe, through the European Union (EU), conceives of and presents itself as a normative model for other countries to emulate and a force for promoting its values throughout the world, and link it to ICC to that ideological framework. In part V, I make some concluding remarks.
II. The “Africa Bias” of a Western Court
A. The ICC as a European Institution
Some African leaders and scholars specializing in African studies have accused the ICC of unfairly targeting African countries in its investigations, indictments, and prosecutions. Thus far, the ICC has only launched full investigations in the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya; the Republic of Côte d’Ivoire and Mali. Some of these critiques have been directed specifically at former Prosecutor Luis Moreno-Ocampo. For instance, in 2011, Jean Ping, then-chairman of the African Union (AU), accused Ocampo of “rendering justice with double standards” against Africa and led a vote calling AU members to ignore an arrest warrant for Col. Muammar el-Quaddafi.1
However, many some critics explicitly attribute the alleged Africa bias to Western neocolonial ambitions in Europe’s former colonies. In 2008, Paul Kagame, President of Rwanda, said that “with [the] ICC all the injustices of the past including colonialism, imperialism, keep coming back in different forms.”2 Mahmood Mamdami, chaired Professor of Government at Columbia University, claims that “the ICC heralds a regime of legal and political dependence” for African countries.3 Zaya Yeebo, a writer and commentator on Pan-African affairs, has called the Court “a pathetic continuation of an imperial tradition” that is “working to a script written in Washington, Paris and London.”4
While these critics are quick to accuse the U.S. of promoting the ICC’s neocolonialism,5 the U.S., unlike most members of the European Union including Great Britain, France, Germany, the Netherlands, and Belgium, is not a party to the ICC and has a limited impact on the Court’s indictment and prosecutorial decisions. That fact, combined with EU’s promotion of the ICC and the Court’s reliance on Europe for its guiding principles and its funding gives the Court a decidedly European appearance. Europe’s extensive involvement with the Court both engenders fears that the ICC, if not a wholly European institution, is a Westernized instrument for Western goals.
1. Western Europe and the Origins of the International Human Rights System
International human rights law originated from a European intellectual and political tradition of protecting fundamental individual rights. Critics of the international justice system view these norms as imports into other areas of the world, and view trials conducted under the auspices of human rights law as culturally imperialistic, if not as a front with which major Western powers can pursue victor’s justice. Most people who accuse the Court of an Africa bias do not hold these views. However, these perspectives, well publicized and the subject of continued scholarly debate, are the context in the debate over whether the ICC is neocolonialist is grounded, and inform the perspectives of critics who take issue with the Court’s operating decisions rather than its existence.
The modern conception of human rights is predicated on the recognition of the individual as the locus of individual rights and freedoms.6 In doing so, it draws on the tradition of the European Enlightenment, which argued that “rational, secular, democratic, and universal” values could be achieved using the means of “law, liberty, and progress,”7 drawn directly from seventeenth and eighteenth century French, English, and American politics.8 Some scholars and extremist politicians argue that those principles, as embedded in documents such as the Universal Declaration of Human Rights, are foreign to the clan and tribal traditions of Africa and Asia, which place greater value on communal rights, and have been imposed on states along with capitalistic economics which they would not have adopted voluntarily.9 African states were not party to its drafting, and had no say at the system’s outset as to whether the values it embodied were truly universal.
While mainstream scholars argue that the differences between the values of Western and non-Western cultures are overstated,10 and most African countries have since adopted the principles of human rights into their own law,11 it is still the case that international human rights law is a European import into Africa, which is enough for many to question the aims of the institutions that enforce it. In some cases, this plays out in front of criminal tribunals. Local critics of the International Criminal Tribunal for Rwanda, for instance, believe the tribunal overemphasizes the rights of the accused and metes out inadequate punishment, as the tribunal, unlike the Rwandan justice system, does not provide for capital punishment.12 This sentiment is reinforced by what some see as the selective manner in which international human rights violations have hitherto been tried.
Questions of the legitimacy of forcibly imposed human rights trials emerged in 1945 at Nuremberg, the first international arena in which individuals were held criminally liable for human rights violations. The International Military Tribunal, in its Judgment, claimed that the crimes listed in the Tribunal’s Charter originated in international treaties, one of which, the Kellogg-Briand Pact, Germany had in fact ratified, and others which, while nonbinding, had precedential value as indicators of “customs and practices of states which gradually obtained universal recognition” and “general principles of justice applied by jurists and practiced by military courts.”13 However, critics of the Trials, both contemporaneous and current, accuse the Allied Powers of imposing new laws after the fact on the defeated parties for political reasons rather than in pursuit of justice.14 The same has been said of the International Criminal Tribunal for the Former Yugoslavia, which Robert M. Hayden argues directed its prosecutions according to American whims on the basis of the accused’s national characteristics,15 and the Special Tribunal for Lebanon, which is seen by critics as anti-Syrian, like most of Europe and the U.S.16 Critics fear that the ICC will similarly direct its prosecutions in line with Western interests, helping to cement its image as a Western, and in particular a European, court.
2. The Westernization of the Court Staff
A large proportion of the ICC’s staff is European, and even those who are not are members of a global elite who have been educated in a Western fashion. Of the 24 judges currently on the ICC, ten are European, as is the Court’s second Vice-President and one of the two heads of the OTP’s subdivisons.17 Of the 5 African judges on the court, three have advanced degrees from European institutions.18 And all of the judges are highly educated with considerable overseas experience. For instance, Judge Joyce Aluoch of Ghana holds a Masters Degree in International Affairs from Tufts University in the U.S., was chair of the African Union Committee of Experts on the Rights of the Child, and was vice-chair and member of the UN Committee on the Right and Welfare of the Child; and Judge Fatuoma Dembele Diarra of Mali was an ad litem judge at the International Criminal Tribunal for the former Yugoslavia .19 Thus, even those judges who are not European or European-educated are still inculcated in Western educational traditions and legal systems that are perceived as Western, further embedding themselves into a historically Western legal system.
3. European Promotion and Funding
Europe was and continues to be one of the ICC’s biggest proponents and funders, enhancing the image that the Court is under Europe’s sway. The EU was in large part the Court’s sponsor after the U.S. failed to ratify the Rome Statute and then withdrew its signature in 2003.20 As of 2008, the European Commission had spent more than €17 million (nearly $23 million) on the ratification campaign, €2.6 on its internship and visiting professional programs.21 The EU’s Special Representatives in troubled countries promote collaboration with the ICC in the African Union and in the African Great Lakes region, and provides technical assistance to states interested in signing, ratifying, and implementing the Rome Statute.22
Additionally, EU member states’ contributions were 75.6% of total assessed contributions to the Court, dropping to 57.4% when Japan acceded to the Court.23 This total does not include individual states’ contributions. As of 2010, six of the top ten contributors to the ICC were European states.24
While the ICC is not European per se, the Court’s legal pedigree and Westernized staff, as well as Europe’s support for the court via both the European Union and individual states, support a perception that European interests and the Court are intertwined. Europe’s extensive involvement with the Court helps to engender the perception that the Court’s focus on Africa is a result of bias. More bluntly, it raises fears that the ICC is an extension of Europe’s colonial and neo-colonial involvement on the continent.
III. The Specter of Colonial Europe
Some Africans are inclined to be suspicious of European involvement in the political affairs of the region, which, given the history of the two continents’ relations, is not unreasonable. However, precisely because of that history, Europe is committed to assisting Africa using all available means, whether military, technological, economic, or social. While the recipients of this aid are (usually) grateful for its availability, the sentiment with which it has been dispensed, combined with the conditional nature of much of the aid and the continued presence of European soldiers on the continent, indicates a paternalistic attitude towards Africa and a sense that the continent still requires guidance from the people who were responsible for its destruction.
A. The Rhetoric of Responsibility
Even after the end of colonization and the rejection of the idea of the “White Man’s Burden,” European attitudes have not shed all their paternalism. In the 1960s and 1970s, Europeans speaking through the European Economic Community (EEC) Commission and the Council of Europe spoke freely of the need for Europeans to guide African development to ensure its success.
In 1963, Hendrich Hendus, the EEC Commission’s Director General for Overseas Development, stated in an address to ambassadors of the Republic of the Congo that Europeans had “a responsibility, a duty to allocate part of [Europe’s] prosperity” to “the development of backwards countries.”25 Perhaps more disturbingly, he criticized African countries from abandoning the governance models with which their colonizers had provided them, and stated that the only possible cure was reshaping Africa’s political structures in Europe’s image. He spoke disapprovingly of the abandonment of colonially drawn borders, which he claimed created “federations that in many cases constituted effective economic and even political units.”26 As a solution, he prescribed the African equivalent of the EEC, and warned that only such a structure would make possible Euro-African “co-operation between partners on the same footing, if not between equals.”27 The implication that Africa could not survive without Europeanization, with which the EEC would willingly assist them, is astounding, not least because Congo had only become independent three years prior. It demonstrates a lack of confidence that Africans could function in the absence of European assistance, an implication that, unsurprisingly, was not appreciated by African leaders at the time.28
The Council of Europe issued a report echoing these themes in 1987. In the draft notes for the report, the Political Affairs Committee of the Council’s Parliament Responsibility declared that “the western world in general and Europe in particular [had] a duty to take action” in response to the contemporaneous African economic crisis. While the above language suggests that Europe was in Africa’s debt as a result of its colonial history, and the notes went on to warn against perpetuating Africans’ dependence on Europe as if they were “modern welfare recipients,”29 the committee still expressed a lack of trust for Africans to manage their own affairs. Most strikingly, on the same page that the committee advocated “a final break with colonialism and ethnocentrism,” it expressed a European responsibility “help [Africans] to reinterpret their cultural past and highlight the aspects which reflect past and future demands”—in other words, to steer Africa’s cultural development so that it was compatible with the Council’s conception of Africa’s needs.
As recently as 1995, respected scholars were still arguing that Africa was incapable of managing its own policy.30 More recently, cognizant of their ugly history in Africa, European countries have made every effort to portray their current relationships with African nations as partnerships in which both sides benefit equally. In 2007, the EU launched a strategic partnership with the AU that, according to the EU’s official press release, aims “[t]o move away from a traditional relationship [between Europe and Africa] and forge a real partnership characterised by equality and the pursuit of common objectives.”31 It relies on the concept of “interdependence between Europe and Africa,” characterizes the partnership as based on a “consensus on values, common interests and common strategic investment,” and emphasizes that its aid is “guided by the principle of African ownership.”32 However, stressing the current aim of equality only serves to emphasize the extent to which Europe has influenced African affairs, and throws the extent to which Africa still relies on Europe for assistance into sharp relief.
B. Economic Dependency and Conditional Aid
African economies rely heavily on large quantities of European monetary aid for the development of their economies. Because of this reliance, European countries can set the terms under which their African counterparts receive such aid, and generally make that aid conditional upon changes in political and economic policy. The result is continuing influence over the governments of African countries, allegedly for the countries’ own good, which to some is reminiscent of the old colonial relationships.
European countries provide more aid to Africa than they do to any other region. From 2000 to 2001, fourteen European countries allocated over 25% of their Overseas Development Aid (ODA) to Sub-Saharan African countries, and seven allocated over 50%; those numbers were sixteen and eight, respectively, from 2005 to 2006, and sixteen and ten from 2010 to 2001.33 At least four of the top ten aid recipients from the United Kingdom, France, Belgium, and the Netherlands, the states that formerly held African colonies, were African; the were mostly former colonies of the donors,34 suggesting a particular sense of obligation to assist those countries.
These large inflows are a substantial chunk of their recipients’ economies. In 1990, ODA comprised over 10% of the gross domestic product of 30 sub-Saharan countries, which had been the case in most of those countries for at least ten years; 21 countries were still receiving aid at that level in 1998.35 When countries have received high levels of aid over the course of decades, it becomes difficult for them to break their aid dependence, as it creates an institutional structure that resolves around the receipt of ODA.36 The result, according to donors, has been the stymieing of growth in the private sector and a resulting underdevelopment of most African economies.37
Because these countries receive so much of their revenue from abroad, their donors can, and often have set conditions that must be met for the aid to be dispersed. These often take the form of the introduction or bolstering of democratic structures, increased protection of human rights, and new transparency and accountability mechanisms in government.38 However, they may also include requirements to increase economic liberalization by reducing trade barriers such as tariffs and privatizing state-owned industries. In the mid-1980s, the World Bank and other financial institutions funneling financial aid began to make the adoption of market-based policies a prerequisite for getting loans and aid.39 Given the length and extent of the crisis, African leaders could not refuse the aid.40
Critics take issue with the plans’ negative impact on local industry, vulnerable members of society (especially women and children), and their neglect of the social element of development.41 The World Bank could not prevent an economic crisis in Mexico while the country was following their plan’s requirements;42 just as Argentina suffered a financial crisis while following the guidance of the International Monetary Fund.43 These factors have soured some on the alleged benefits of following Western-mandated plans, which are characterized as “neoliberal” and too inflexible to be applied to donees.44 And even those who do not take issue with the substantive prescriptions may still resent the apparent control this gives organizations such as the World Bank over their economies, if not the mere fact that the global North’s institutions are setting policy prescriptions for the rest of the world.45
Critics tend to impute the actions of the institutions such as the World Bank to the U.S. and countries in Western Europe, which are among the most powerful of their members. But bilateral donors also impose their own conditions on ODA. Bilateral donors, in contrast to intergovernmental organizations such as the World Bank, have an even greater preference for conditional, earmarked aid, which in 2010 comprised 75% of all ODA, more than three times higher than such aid from intergovernmental organizations.46 Thus, conditional aid is also directly attributable to European countries, and the criticisms of conditional aid levied at the intergovernmental institutions can be laid directly at Europe’s door.
Europe’s continuing economic involvement in Africa, which at times borders on the maintenance of a dependency relationship, suggests that Europe is not only feels a particular responsibility for solving African problems, but also is impinging on African states in doing so. Human rights interventions in Africa provoke similar concerns.
C. Human Rights Interventions
European countries frequently engage in military operations in Africa, frequently in order to contain human rights violations. Within the last twenty years, European states, in particular France and the UK, have contributed to military interventions in Rwanda, East Timor, Sierra Leone, Côte d’Ivoire, Libya, and Mali. The situations in Rwanda, East Timor, Sierra Leone resulted in the creation of ad hoc tribunals; those in Libya and Mali gave rise to ICC indictments. While these interventions arguably were not initiated for purely humanitarian reasons,47 human rights violations were a factor in the decision to intervene in all these situations. However, questions remain about the efficacy of such missions and the extent to which they are actually intended to assist the people in the countries where they take place. These criticisms portray the interventions as misguided and exploitative, and make some skeptical of the benevolent portrayal of the European defense of human rights.
Scholarly critics such as Richard Betts and Rachel Utley challenge whether military intervention actually mitigates human rights litigation. Betts discusses how NATO was reluctant to act against the Bosnian Serbs in the mid-1990s due to a desire to be “evenhanded” and not actively promote the cause of the Muslims and Croats.48 Similarly, he criticizes the failure of the U.S. (or France) to support any particular side when intervening in Somalia, resulting in the persistence of local anarchy, and the reluctance to intervene in Rwanda until far too late.49 Utley, in contrast, criticizes the misdirected nature of some “humanitarian” interventions, which in fact protect human rights violators from harm. She takes issue with the limited nature of the French intervention in Rwanda, in which it had supported “a corrupt, undemocratic government, had sent troops to defend it from rebellion, and had established safe havens for Hutus—including perpetrators of genocide—to protect ‘friends’ of France from public scrutiny and accountability.”50 By casting the efficacy of human rights interventions into doubt, these scholars undermine their legitimacy. By portraying Europe’s desire to assist and improve the rest of the world, Africa included, as unsuccessful in practice, they implicate European countries as paternalistic actors who cannot back their desire to aid with actual help.
Failed human rights interventions raise resentment that European countries, despite claiming to know what is in the best interest of countries suffering human rights violations, either fail to carry out their humanitarian goals while instating a military presence in African states, or actually exacerbate the harm.
Another criticism leveled at humanitarian intervention is that they are not, in fact, aimed at assisting the countries in which they take place. Utley argues that the reason why France’s intervention in Rwanda was ineffective is that France was more interested in propping up its allies rather than containing human rights violations.51 The arguments made by former American President George W. Bush and former British Prime Minister Tony Blair that the 2003 war in Iraq was a humanitarian intervention are subject to intense criticism in the literature, and is frequently coupled with the allegation that the “responsibility to protect” “is the latest guise for Western imperialism.”52 The fear that humanitarian interventions are motivated by Western interests rather than concern for human rights violations fosters fears that human rights projects like the ICC are neocolonial tools. Any indication that a human rights institution is focusing specifically on Africa—especially when all the targets are former colonies—seems to confirm those fears.
Continued military and economic intervention in Africa, especially when motivated by humanitarian concerns, indicates a lack of trust in Africa’s ability to manage its own problems. This is made more distasteful by the fact that even when economic and humanitarian situations have spiraled past the point at which poor countries with governments that cannot or are unwilling to manage the crisis at hand, the U.S. and European powers are unable to manage them either. The imposition of external justice systems, imposed from the outside, in which European countries invariably play a major part, becomes suspicious when examined in that context. The fact that, Europe, via the EU, has paired such interventions with a portrayal of itself as normatively superior only exacerbates the issue.
IV. The Paternalism of Normative Europe
The European Union and its precursors constitute a major international achievement; they have helped to preserve peace in Europe for the last seventy years and maintain the relative strength of the European economy, and have allowed European states to coordinate their policies. However, proponents of the EU have taken its success as evidence that the European model is normatively superior to other modes of international cooperation that must be promoted in and extended to other parts of the world, but especially Africa. In this context, the ICC seems a perfect extension of an EU project to Europeanize Africa.
Top officials are understandably proud of how, in the words of the Nobel Committee, it has “for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.”53 Because of the EU’s remarkable successes, officials present the union as a model that other states should follow. When accepting the Nobel Peace Prize on the European Union’s behalf in 2012, President José Manuel Barroso described the EU as “a new legal order… despite its imperfections, the European Union can be, and indeed is, a powerful inspiration for many around the world.54 He also expressed the EU’s commitment to “fight for lasting peace, freedom and justice in Europe and in the world” and his desire “that, with all women and men of good will, the European Union will help the world come together.”55
While these sentiments are admirable, the presentation of the EU as the gold standard for achieving international peace simultaneously conveys the notion of European superiority and a moral failing on the part of the rest of the world. Likewise, its asserted responsibility to help others to recreate the EU’s successes implies a perceived need to instruct less competent states in how to manage their affairs.
Multiple scholars have observed that the EU’s portrayal of itself as a normative model results in an unintentional cultural imperialism. Lisbeth Aggestam, for instance points out that “[t]he problem with this ambition to shape the world in Europe’s image is that it is based on an assumption that European values and ways of doing things are intrinsically superior… the problem with this view is that it communicates a message of Europe as morally superior and an image of others as ruled by the ‘law of the jungle’.”56 Europe’s well-meaning attempts to extend its own successes to the rest of the world inevitably cast the rest of the world as failing in the areas in which the EU claims to have succeeded. The fact that the EU specifically points to the preservation of human rights as one of its greatest successes helps to tie the EU’s wholehearted support of the ICC to the institution’s greater normative project.
Some scholars have also warned that Europe’s characterization of itself as an “ethical intervener” is particularly disparaging towards Africa. Olivia Rutazibwa alleges that the theoretical framework under which Europe undertakes human rights interventions results in the creation of a false contrast of “the benevolent EU versus malevolent, corrupt African leaders.”57 More pointedly, she criticizes the creation of a “dichotomy where the EU holds all the knowledge and the Africans are first and foremost in need of intensive training or technical support,” which she also describes as “a parent/child relation in which it is almost normal that punishment is applied in the educational effort, from the EU towards Africa, for the latter’s own good.”
It is debatable whether Europe’s humanitarian interventions are entirely paternalistic. The argument is harder to sustain in the context of the ICC: of the eight full-scale investigations which the Court has initiated, four were self-referrals, in which the countries exercised their agency in inviting the ICC to take action. However, Europe’s support for the ICC dovetails neatly with the EU’s apparent sense of superiority and its self-appointed mission to help Africans achieve peace and human rights, not to mention its other formers of interventionism. In this context, the ICC becomes another arm in what Europeans admit is a quest to shape the rest of the world in Europe’s image.
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).
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. ↩
Kezio-Musoke David, Kagame Tells Why He is Against ICC Charging Bashir, Daily Nation, Aug. 11, 2008, available online. ↩
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. ↩
Is Africa on Trial?, BBC News, Mar. 27, 2012, available online. ↩
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). ↩
Hersh Lauterpacht, International Law and Human Rights, 17 (1950). ↩
J. A. Lindgren Alves, The Declaration of Human Rights in Postmodernity, 22 Hum. Rts. Q. 478, 488 (2000). ↩
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). ↩
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). ↩
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). ↩
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). ↩
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). ↩
Judgement: The Law of the Charter, The Avalon Project, available online (last visited Mar. 3, 2013). ↩
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. ↩
Robert M. Hayden, Biased “Justice:” Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia, 47 Clev. St. L. Rev. 549, 551 (1999). ↩
Antonios Tzanakopoulos, Special Tribunal for Lebanon: The First Orders by the Pre-Trial Judge, 13 ASIL Insights 11 (2009), available online. ↩
Structure of the Court, ICC, available online, (last visited Mar. 2, 2013). ↩
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. ↩
Structure of the Court, supra note 17, at 17. ↩
Sibylle Scheipers & Dianiela Sicurelli, Normative Power Europe: A Credible Utopia?, 45 JCMS 435, 439-441 (2007). ↩
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. ↩
The European Union and the International Court, The European Council, 12, 14, (May 2010), available online. ↩
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. ↩
Id. at 6. ↩
Id. at 9. ↩
See Dickson Eyoh & Richard Sandbrook, Pragmatic Neo-liberalism and Just Development in Africa, (University of Toronto, CIS Working Paper 2001), available online. ↩
Council of Europe, Parliamentary Assembly, Political Affairs Committee, Report on Political Co-operation Between Europe and Africa: Draft Recommendation, 8, 1987. ↩
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). ↩
Council of the European Union, The Africa-EU Strategic Partnership: A Joint Africa-EU Strategy, 4, Dec. 9, 2007, available online. ↩
Id. at 2, 6. ↩
Statistics on Resource Flows to Developing Countries, OECD, Table 27, available online (last visited Mar. 4, 2013). ↩
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. ↩
Id. at 259. ↩
See Christopher S. Adam & Stephen A. O’Connell, Aid, Taxation and Development in Sub-Saharan Africa, 11 Econ. & Pol. 225 (1999), available online. ↩
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”). ↩
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. ↩
Owusu, supra note 39, at 1659. ↩
Id. at 1666. ↩
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. ↩
See, e.g., Alex de Waal, Democratizing the Aid Encounter in Africa, 73 Int’l Aff. 623 (1997). ↩
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. ↩
Abebe Adugna & J. Fitz Ford, Intergovernmental Fiscal Systems and Development Aid Comparisons and Lessons of Experience (CFP Working Paper No. 6, 2010), available online. ↩
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). ↩
Richard Betts, The Delusion of Impartial Humanitarian Intervention, 73 Foreign Aff. 10, 24-25 (1994), available online, archived http://www.webcitation.org/6FGzIcPX8. ↩
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. ↩
Rachel Utley, ‘Not to Do Less but to Do Better…’: French Military Policy in Africa, 78 Int’l Aff. 129, 132 (2002), available online. ↩
Robert W. Murray, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, 2 GR2P 329, 351 (2010). ↩
Press Release, The Norweigian Nobel Committee, The Nobel Peace Prize for 2012, available online (last visited Mar. 5, 2013). ↩
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. ↩
Lisbeth Aggestam, Introduction: Ethical Power Europe?, 84 Int’l Aff. 1, 7 (2008). ↩
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). ↩