The International Criminal Court in Africa: A crisis of legitimacy?

Does the ICC really have a bias toward prosecuting crimes in Africa?
By: /
April 16, 2015
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Senior Lecturer in International Relations and Assistant Dean of Humanities, University of the Witwatersrand, Johannesburg

The ICC has an image problem in Africa. Perceptions that this important international institution discriminates and disproportionately focuses on Africa, African leaders, and African related human rights abuses exist and need to be addressed. Indeed, in the ICC’s brief existence, a majority of the cases it has heard have focused on African contexts.

But like any perception, the whole picture often gets neglected. It is indeed correct that the ICC has focused almost exclusively on African leaders in its attempt to prosecute human rights abuses. There are, however, cases of international crimes levied against non-Africans outside of the ICC, most notably the ad-hoc tribunals trying the former Yugoslavian leader Slobodan Milosevic, who died of a heart attack before he could be prosecuted, and former Bosnian Serb leader Radovan Karadzic, who is awaiting the verdict from his trial.

But it is incorrect to assert that the ICC has actively sought to pursue African leaders of its own accord. Of the nine “situations” which the court has addressed since its establishment under the Rome Statute in 2002 – five have been referred by African states themselves. The governments of the Central African Republic, Cote D’Ivoire, the Democratic Republic of Congo, Mali, and Uganda have all requested the ICC investigate and prosecute individuals for crimes against humanity. Another two, Sudan and Libya were referred to the ICC by the UN Security Council, and only one – Kenya – has the ICC self-initiated under its prosecution authority.

In such a context, it seems odd then that the ICC gets a bad wrap. Indeed, it seems hardly warranted that the African Union (AU) would take the extraordinary measure in 2013 of holding a Special Summit to debate its relationship with the ICC and undertake a (failed) attempt to get its members to boycott the institution as a whole, when for the most part, it was being used by African leaders themselves to find justice against those who perpetuated mass atrocities like genocide. It seems bizarre to think that present day African leaders would seek to undermine the very institution that held the despot, Charles Taylor, to account. But, yet again, perception doesn’t quite represent motivations here.

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There are a number of explanations that can help elucidate why perceptions of bias against the ICC have become so prominent. The first relates to the fact that the ICC has started to pursue investigations into cases that touch upon African leaders who are currently in office. Sudan’s Omar Al-Bashir and Kenya’s Uhuru Kenyatta are two examples where sitting Presidents have been charged for their supposed role in crimes against humanity. Other leaders like Cote D’Ivoire President Alassan Ouattara and Uganda’s President Yoweri Museveni, who both referred cases to the ICC against political opponents, have now soured to the ICC as investigations have begun to implicate political allies or limit their ability to advance peace negotiations. In the case of Ouattara, the ICC is investigating atrocities committed by individuals and groups that support him during the post election civil war in 2010. In Museveni’s case, the ICC arrest warrant for Lord’s Resistance Army leader Joseph Kony is slowing peace negotiations that will bring an end to decades-old civil war as Kony and his commanders remain hidden to avoid arrest. The recent of arrest of former LRA commander — and former child soldier — Dominic Ongwen and his ongoing trial at the ICC only underscore the tension that Uganda faces in trying to resolve this civil conflict whilst adhering to ICC arrest warrants.

What this implies is that for African leaders, the ICC was considered useful when it played a role in neutralizing political opponents, but once attention turned to themselves, their allies, or when the ICC has complicated the path to finding political resolutions, it becomes a menace. Now, concerns over sovereignty and respect of African democratic decisions dominate discussions about the ICC amongst these individuals rather than the ICC as a source for justice.

Another explanation for the African bias relates to understanding the membership of the ICC itself. Such states that would seemingly be a site for ICC intervention simply aren’t members: Israel, Iraq, North Korea, Sri Lanka, Syria, and Uzbekistan all refuse to recognize the jurisdiction of the court. This limits the ability of the court to pursue investigations and prosecutions from these states.

A final explanation that doesn’t help the ICC’s cause relates to the use of UN Security Council vetoes by global powers such as the U.S., China, and Russia (also not members of the ICC) to block the court investigating friends and allies. Just last year both Russian and China used their vetoes to block Syria’s referral to the ICC. Seemingly, African states don’t fall into a category of state worthy of defence against ICC powers by the P5. The sad effect of this is that it only reinforces perceptions of bias at the ICC towards Africa and permits efforts to promote justice and human rights to be undercut.

Such conditions are a sad reality for the ICC and for global governance more broadly as this only serves to undercut opportunities to reduce divides between states in the North and South. Further, this circumstance poses a challenge to the liberal ideal whereby an international mechanism exists with the aim of imparting a sense of justice premised on a set of international and common laws.

So it seems that charges of bias leveled against the ICC are a result of political expediency, institutional membership constraints, and geopolitics. A heavy mix with damaging consequences for its legitimacy, particularly in Africa.