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Africa in focus

Can the International Criminal Court Play Fair in Africa?

Mwangi S. Kimenyi

Currently, there is a great deal of criticism directed at the International Criminal Court (ICC) by Africans. The criticisms have intensified following the indictment of Kenya’s president and his deputy by the court.   Increasingly, more and more African nations are expressing their dissatisfaction with the operations of the court and specifically—right or wrong—the way it has been handling the Kenyan cases.

The other criticism directed at the ICC by Africans is that the court has tended to focus almost exclusively on Africans and—more specifically—black Africans.  Worse atrocities in other countries have not featured prominently in the court’s agenda.   African critics of the ICC cite many examples that suggest that there are biases in the selection of countries and cases followed up by the court.  

Supporters of ICC, on the other hand, argue that it is in Africa that crimes against humanity have been most prevalent and where systems of justice are weak.  It is therefore not the ICC’s intention to focus on Africa. This claim, however, is easily disputed by examples of many countries where atrocities have been committed and in some cases still continue. Africans cite the examples of Burma, Venezuela, Colombia, Iraq, Syria, Afghanistan and even Egypt where crimes against humanity have not been a focus of ICC.

Last week, the African Union demanded that the cases against Kenya’s leadership be deferred and threatened to withdraw its membership should this request not be honored by the U.N. Security Council.   The AU also advised President Uhuru Kenyatta not to honor the summons to appear before the ICC.

Whether the request by the AU is honored by the Security Council or not, the ICC has been seriously weakened as a neutral arbitrator of international justice. To many Africans, the ICC is now seen as nothing more than a tool to extend colonial domination—often referring to the court as more of an International Colonial Court. 

These sentiments by the African Union notwithstanding, the role of international justice is critical for the protection of human rights.  However, the ICC process must be seen to fair and not selective or arbitrary. Most important, there must be reforms that totally insulate the court from any possibility of political manipulation.  

Is the ICC Subject to Political Manipulation?

Although criticisms of the ICC by Africans seem to dominate the news, reservations about the appropriateness—and especially the neutrality of the ICC—have been of concern since the court’s inception. 

A common criticism of the ICC by Africans is that the court is subject to political manipulation. This fear of political manipulation appears to be a concern to many other countries, including the United States. Chairing a subcommittee hearing on the ICC in 1998, former Senator Rod Grams observed, “Now, while I am relieved that the administration voted against the treaty of Rome, I am convinced that it is not in itself sufficient to safeguard our nation’s interests. The United States must aggressively oppose this court each step of the way because the treaty establishing an International Criminal Court is not just bad, but I believe it is also dangerous.

Contributing to the same hearing in 1998, Senator Dianne Feinstein noted, “I share the concerns which ultimately led United States to determine that it could not support the draft statute that emerged from Rome. None of us would like to see a court that frivolously prosecutes Americans or which acts with politics, not justice, as its motivating force.”  This observation clearly points to the fact that the court can be subject to political manipulation.   Senator Gram specifically observed that the ICC process would not provide an “effective screen against politically motivated prosecution from being brought forward.”

U.S. criticism of the court has also focused on the fairness and even the quality of Judges.   Apparently, the demand by the United States that judges have both criminal trial and international law experience as a minimum requirement was rejected by the delegates deliberating on the Rome Statute as too high a bar to meet and, therefore, the U.S. does not consider the court appropriately staffed with qualified judges.  

Reading through various documents on ICC, especially the 1998 Senate subcommittee hearing, one gets the impression of clear disdain by U.S. policymakers of the possibility that Americans would subjected to judges from countries possibly biased against American citizens and possibly not fully qualified.  There is also concern about the wide-ranging powers endowed on the prosecutor who is “not accountable to any government or institution.”

Another good example of a country that is concerned about the politicization of ICC is Israel.  After initially agreeing to be a party to ICC for a short time, Israel “unsigned” the Rome Statute because of concerns that “political pressure on the court would lead it to reinterpret international law or to “invent new crimes.”  Like the United States, Israel considers the “powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel.”  

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Similarly, China and India have categorically refused to cede to the Rome Statute and have expressed concern over various issues, including powers of the prosecutor and the court’s jurisdiction, among others. Both of these countries fear that the powers granted to the prosecutor are too broad and may lead to subjectivity and arbitrariness in the way that investigations and prosecutions are conducted.  

India has also expressed concern that the Rome Statute made the ICC subordinate to the U.N. Security Council and “thus, in effect to its permanent members and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings.” 

To a large extent, the sentiments expressed by Africans about the ICC are similar to those of these other countries.  It is unfair to characterize the demands by Africans as tantamount to condoning impunity while the same is not used to characterize the positions of these other countries.  It is important that the international community take the position of AU seriously, as it is reflective of real concerns shared by other nations.

Influence of Funding Countries

Another common concern relating to the court is that the few states that dominate the funding of the ICC may also seek to influence its activities. Recent data show that about 60 percent of ICC funding comes from the European Union.   Like other international organizations, it is claimed that there is a close relationship between funding and influence over the activities undertaken by the court.   For example, Ugandan Professor Mahamood Mamdani has observed that “ICC is dancing to the tune of Western States. Given Africa’s traumatic experience with the very same colonial powers that now, in effect, direct the ICC, it is an unfortunate case of déjà vu.” 

A related concern is that the West also holds influence in that most of the substantive appointments—the key positions that are responsible for investigations and the preparation of cases—are overwhelmingly staffed by members of the European Union.  For the ICC, there is a tight relationship between funding and staffing.  This close relationship has raised justified concerns that the court is a tool of the EU, which, unfortunately, reinforces the “new colonialism” sentiments.

It has also been suggested  that the African countries signed on to the Rome Statute without much thought to the implications of the Statute, primarily because there was great pressure from donor countries that used their financial support to twist the arms of these governments to cede to the statute.  Specifically, many critics hold that African countries were pressured to sign on the Treaty of Rome by the EU as a condition for being part of the EU-Africa trade pact—the Cotonou Agreement.  Therefore, these countries could not freely opt out of the Rome Statute as did China and India. 

Another other serious concern about the ICC is the role of some non-governmental organizations (NGOs).  NGOs can positively contribute to the execution of international justice.  However, the fact that some of those NGOs are aligned to political groups in various countries can and does easily contaminate the neutrality and credibility of the ICC process.  Such sentiments—correct or not—have contributed to the erosion of the credibility of the ICC.

The Future of the ICC

Notwithstanding the outcome of the Kenyan cases, the future of ICC does not look good.  This is not to say that there is no role for international justice.  Under the current institutional structure, the ICC is likely to continue losing support and its remaining fragments of credibility.  In the Kenyan cases, the ICC seems to have been drawn into domestic ethnic politics, which, again, greatly erodes the integrity of the so-called neutral player.

The scope of powers of the court and especially the office of the prosecutor is too broad and too open to the possibility political manipulation, and thus claims of unfair adjudication of justice may not be far-fetched. Unless serious reforms are undertaken to ensure the court can be trusted to execute justice fairly, the ICC will continue digging its own grave and, in the process, undermining international justice.   In essence, the ICC is its own worst enemy and, unless reformed, Africans will continue to see it as nothing more but an International Colonial Court. 

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