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

I. Introduction

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

II. Critics

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

III. Unwilling or Unable Standard

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

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IV. Assumption of Risk

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

V. Probability of Conviction

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

The African situations also come with serious and more visible human rights violations than in other regions. Crimes in globally problematic regions must rise to the level of war crimes, crimes against humanity, and genocide in order to come under the umbrella of ICC jurisdiction. This includes crimes such as mass rape, mass murder, and child soldier recruitment. The ICC’s Africa cases are legitimate and can all be more readily confirmed as righteous humanitarian crises. The effects of the M23’s presence in the DRC were quite visible. A ride around the city of Goma reveals the magnitude of necessary international aid in the city, present to provide relief to the suffering population. Convoys of Doctors without Borders, human aid organizations, the United Nations’ MONUSCO troops, among others, are vastly and visibility present to protect and provide relief. The most recent siege of Goma by the M23 in November 2012 brought with it horrendous consequences—rape, murder, recruitment of soldiers even from the local government police force. Almost every civilian in Goma can recount the horrific nature of crimes that have been committed by the M23. The group has been notorious and well-known internationally for its military power and savage method of attack on civilian populations. The rebel commander, Bosco Ntaganda, who now sits before the ICC, is known as “The Terminator.” He has been widely known for his reputation of extreme brutality and has currently been charged by the OTP with rape, murder, sexual slavery, and using children as soldiers.

The situation brought forth by Joseph Kony, the former leader of the guerilla group, the Lord’s Resistance Army, is similarly extreme. Scholarly articles, one after the next, have focused on the atrocities of Kony, particularly in Uganda. The ICC has held an outstanding warrant for him since 2005 for murder, sexual enslavement, rape, pillaging, and forced enlistment of children. The mere fact that even laypersons are inspired and recognize the notoriousness of the Kony campaign, which launched through social media and quickly went viral attests to the international community’s widespread awareness of his notoriety in terms of the magnitude of the crimes he has committed.

Focusing cases in nations outside of Africa may be more questionable. It may be more difficult to establish the magnitude of the crimes because the crimes in other regions may be covered up or at least not carried out so openly as they are in Africa. Furthermore, crimes in some of the South American nations for example sometimes tend to be isolated and hidden. By virtue of the atrocities in Africa being so notorious and obvious in the international community, the OTP possesses a neutral justification in focusing a majority of its cases on Africa.

Furthermore, African states have been compliant with ICC requests and have cooperated. For instance, the Kenyan defendants voluntarily appeared before the ICC on their own. Although, some African suspects, including Omar al-Bashir of Sudan, remain at large and although the ICC has been unable to execute some arrest warrants, the Kenyans as well as Bosco Ntaganda surrendering voluntarily to the American Embassy in Rwanda illustrates at least some willingness by the African suspects to be prosecuted and again, demonstrates their assumption of risk. According to current ICC Prosecutor, Fatou Bensouda, African states, including non-States Parties, receive more than 50 percent of the OTP’s requests for cooperation. Over 70 percent are met with a positive response.

VI. Media and UN Support Affect ICC Credibility

International presence is African conflict regions is quite high. International governments have focused on how areas enriched with conflict minerals and afflicted with atrocities affect their own economies and have passed laws and sanctions to protect African populations against the abuses they face by virtue of power hungry war lords seeking financial gain from exploiting natural resources. These debates have plagued news reports and media sources, as well as academic journals. Due in part to these supply chain discussions which carry over and pour into other countries to affect Western economies, there is much media support and focus in African. Human rights non-governmental organizations such as Amnesty International and Human Rights Watch, among others, have organized their efforts in an orderly fashion to arrange research teams of their employees in conflict regions to monitor and report on human abuses after every known attack. Because the crimes in Africa are so notorious, media condemnation of defendant capture is low. The wide international presence, not only from a legal focus perspective, but also from medical efforts help to hold the region accountable for its activities and permit the international community to be fully aware of the atrocities. This media support as well as the existence of UN troops, notably in the DRC, supports the OTP’s investigations and focus in Africa. Because the atrocities are more readily verifiable through these news reports, the ICC’s credibility is enriched. In other words, the ICC’s focus in Africa has been far from arbitrary.

VII. Involuntary Nature of the ICC’s Africa Focus and Lack of ICC Jurisdiction

Most of the ICC’s focus on Africa has been involuntary, or rather, not proprio motu (initiated by the OTP at its own discretion). The Prosecutor can only use his or her prioprio motu powers to open investigation in a problematic region only if the nation is a States Party, that is, a signatory to the Rome Statute. The UN Security Council was responsible for referring the Libyan and Sudanese situations to the ICC. Both nations were non-states parties. Thus, the ICC did not have original jurisdiction over these regions. Three of the seven states prosecuted in Africa (Central African Republic, DRC, and Uganda) requested that the ICC do so because they were unable to request senior figures to be prosecuted in their country. These were self-referrals. Only Kenya and Ivory Coast have been voluntary (proprio motu) cases in Africa, but both requested the ICC’s assistance.

Many other nations where war crimes have occurred are not signatories of the Rome Treaty, omitting them from the reach of the ICC. Since the ICC does not have jurisdiction over some of these key nations and/or regions (for example, Palestine, Israel, Iraq, Syria, and North Korea), Africa again seems to be the next best region on which the OTP should focus its activities. To continue improving its credibility and international support, the ICC must continue attaining convictions and focusing on regions that do not have functioning national justice systems seems to be the right answer. Some of the historically problematic nations, including the United States, Russia, and China, all have veto power over the UN Security Council vote to refer a situation to the ICC, eliminating the possibility of investigation of non-signatory nations with which the United States, China, or Russia are allies. Thus, instead of remaining powerless with respect to Syria, for instance, the ICC must push forward and the OTP must continue its investigation on those nations that are with in its reach by mandate.

VIII. Conclusion

There have been complaints of African bias and dramatic images of African warlord Thomas Lubanga sitting before three white judges of the ICC. Although various historical factors provide a higher probability that a given judge will be white, still ICC judges have been selected with diverse backgrounds. Around thirty-three percent of the ICC judges represent African nations. Investigations in nations other than in Africa are presently underway, including preliminary investigations in five non-African nations: Afghanistan, Columbia, Georgia, Honduras, and Korea. So-called white judges at the ICC are not attempting to push forward a white colonialist agenda if their main purpose is to bring justice to the abundance of black victims and families who suffered at the hands of the defendants being prosecuted. It thus does not make sense to say that the ICC as an institution and its judges are advancing their own motives and agenda. If the nation’s own government and judiciary does not act as a deterring force to war criminals, then who will? Although there are challenges and flaws with the institution and the ICC is far from perfect, it is an attempt to provide deterrence to commanding criminals whose orders and leadership result in the perpetration of mass rape and mass murder. That is what the ICC stands for. If the ICC involves itself with a situation, it is because the nation’s government refuses to do so or was unable to do so. It is a court of last resort. Thus, despite critics’ attack on the ICC’s focus on Africa, it is at least worth a moment of reflection to question why it seems as though the ICC has prosecuted mostly cases in Africa. Upon closer examination, we can at least ascertain that in actuality, the ICC has not been nearly as “biased” as it seems at first glance.

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