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 all African nations would be extremely, perhaps fatally, damaging to the court. It is an unavoidable fact that up to this point all of the ICC’s prosecutions have been against African nationals.4 While preliminary investigations are proceeding in other regions,5 it is unlikely that any will progress beyond this phase. While these claims may have merit, it is also possible that other political factors are impacting the proposed withdrawal. For the ICC to respond to these pressures, they must first be identified.

Threat of ICC Prosecutions

A primary reason could be the threat of a possible ICC investigation of state leaders currently in power. For obvious reasons, it is in a leader’s best interest to remove their state from the jurisdiction of the ICC when they have engaged in conduct that could put them at risk of an ICC prosecution. For example, Uganda’s recent actions in the Democratic Republic of the Congo would explain President Yoweri Museveni’s relatively rapid change of position from supporting the Court to his criticism of it and apparent support for an African withdrawal.6 If true, this will remain a difficult issue for the court to grapple with.

Additionally, the threat of prosecution by the ICC extends beyond States Parties to the Rome Statute. As the case of President of Sudan Omar al-Bashir demonstrates, African nations not a party to the treaty can still be the subject of an ICC investigation on the motion of the United Nations Security Council. Thus, weaker non-member states with poor human rights records, such as Zimbabwe or Rwanda, would benefit from discrediting by making the threat of a future prosecution against their nationals less likely.

Domestic Sovereignty Concerns

Domestic populist politics and concerns over domestic sovereignty could also be fueling states’ threats to withdraw from the ICC. The African Union was founded in part in order to “defend the sovereignty territorial integrity, and independence of its member states.”7 As a post-colonial continent, populist politics and the rhetoric of anti-imperialism have remained powerful in African politics8 and have empowered leaders such as such as Zimbabwe’s Robert Mugabe. The proposed withdrawals could thus be the result of democratic processes or public demand, and a general desire to remove any threats to the sovereignty of African nations. This appears to be in part what is motivating Ethiopia to support Kenya’s withdrawals, as it has accused the court of “race hunting.”9

Political Pressure From Other Nations

It could also be conjectured that the threat of withdrawals are the result of international relations within Africa and status with the African Union. A weaker state, for example, could be indicating acquiescence to a withdrawal from the ICC at the behest of a more powerful neighbor to in order to gain political capital to be expended on a more important political goal, such as monetary aid or military support. It is also possible that this pressure is from a great power state outside of Africa, which is opposed to the jurisdiction of the ICC and thus has an interest in undermining its authority through the removal of member states. Such states could include Russia or China, powerful states with poor human rights records that have expressed hostility to the Court.

Conclusion

No doubt many other factors could be at play in this complex issue of international politics. Having identified some of these, the next question is what the ICC can do to counteract some of these forces and retain its legitimacy. Perhaps the bigger question is whether the Court can address these problems at all. As these issues are all political, they presumably would require a political solution. However, it can be said that much of the Court’s credibility comes from the fact that it has been effective in maintaining an image of independence from politics and political concerns. Balancing these competing concerns could be critical to the continued ability of the ICC to conduct effective prosecutions.