Does the ICC have an Africa problem?

All 28 people indicted by the International Criminal Court so far are from Africa.

Lubanga to be served
In the court's first conviction, the ICC recently found Thomas Lubanga guilty of war crimes [Al Jazeera]

Cambridge, MA – When the Lubanga verdict was handed down at the International Criminal Court, rather than a chorus of celebration, there was qualified applause from pundits and publicists. Almost all the opinion pieces that examined the potential impact of the Lubanga verdict highlighted the oft-cited fact that all of the 28 people that have so far been indicted by the court have been Africans.

Does the ICC have an Africa problem? If it does, it is perhaps not the problem that analysts seem to be focusing on. Although the numbers on the surface imply that the ICC is going after African warlords disproportionately, it is important to recall that the African continent has also subscribed to the Court’s Rome Statute “disproportionately”.

There are 120 countries currently party to the Rome Statute and 33 African states comprise nearly 30 per cent of the court’s membership, or over 60 per cent of the continent’s states. By the numbers alone, assuming that conflicts occur with similar frequency in each inhabited continent, a national of a member state found to be in violation of the provisions of the statute is statistically more likely to be from Africa than from any other continent.

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More importantly, consider the reasons for which warrants have been issued thus far. These are not newly emerging crises that have just been brought to the world’s attention. Rather, with the notable exception of Kenya, these are intractable crises that the international community has struggled to resolve in a just and timely manner.

ICC warrants in these cases can be conceptualised as the next phase of international engagement and perhaps, no more invasive than the Security Council continuing to renew peace-keeping missions in the Congo, or the World Bank attaching democracy-based conditions to financial assistance.

In the Kenyan case, it is arguable that the ICC is to some extent playing into local politics in its decisions to charge certain individuals and not others. But no one who has ever studied the law will argue that it is anything but political.

The question for both domestic and international law is whether process sanitises the political to the point where it is predictable or internally consistent. The aspiration is to build a transparent procedural base, which contemplates human dignity and equitable access and treatment before the system, and is therefore just, if not always fair.

For Kenya, that means a system through which those who have been implicated in the darkest events of the 2007/8 post-election violence are asked to account for their actions in a space that is necessarily divorced from the inevitable heat of the upcoming election.

An equitable court?

Which recalls another point and it is that no informed person believes that the majority of the 28 indicted individuals are not at least presumptively blameworthy. Joseph Kony in Uganda hardly deserves the kind of protection that some African leaders are hoping to provide by shielding Africans from prosecution at the ICC.

In fact, he is emblematic of what was hoped to be a dying breed – the unrepentant mercenary who periodically pillages remote villages in central Africa and recruits children to his ranks using the most brutal methods available. Judicial processes are affording the likes of Kony far more dignity and procedural protection than he has offered any of his victims or hostage-soldiers, which is reflective of the aforementioned aspiration to a just, if not absolutely fair, system.

All of which is not to deny that the ICC may have an Africa problem, but the problem is that its largest constituency seems to have little or no confidence in the ability of the court to deliver the kind of protections it was designed to deliver, in an equitable way. I would posit that the efficacy of a judicial system lies in the confidence that those potentially judged by it have in the system’s ability to mete out justice.

In the US, despite an extensive history of judicial decisions that have upheld racial or sexual inequalities (for example, the Dred Scott decision) or seemingly endorsed campaign financing corruption (Citizens United), people continue to believe that the judiciary works and continue to bring their disputes before the system for arbitration.

“The answer may lie in investing universal jurisdiction in various African supreme or high courts.”

The ICC may never have had the total confidence of its members, primarily because every nation-state at the Rome Conference had a wildly different image of whom the court would go after and for what.

This lack of confidence or concordance plays out in the way that Western nations balk at the prospect of holding US citizens accountable at the court while African nations cheer, or when the West overtly uses the ICC to advance its goals in Sudan through the Bashir indictment, which Africa vehemently rejects.

The ICC may therefore never be able to solve its Africa problem. It is nearly impossible to build consensus on the nature of the court’s jurisdiction so far, after leaders of various regional groups seem to have concretised their positions.

An alternative forum may be the best way out of this problem – but given the rate at which people continue to die in central Africa and Sudan, not to mention the delicate balances in Cote d’Ivoire and Kenya, there isn’t time to wait for the formation of an African Criminal Court.

The answer may lie in investing universal jurisdiction in various African supreme or high courts, simply by passing statutes that give these courts authority to try cases related to the most egregious violations of human rights on the continent.

Using the judiciaries of smaller states in Africa that have succeeded in earning the confidence of their people provides an alternative that takes alleged offenders out of the immediate context of the crimes but still respects the idea of “African solutions for African problems”. Mauritius, Namibia, Botswana, Ghana – these are all nations with the capacity (albeit with significant assistance) to set up special chambers akin to those in Cambodia to try such cases.

Would it be a diplomatic, logistical and pragmatic nightmare? Absolutely. But no more painful to witness than hearing people criticise a court that holds a man accountable for incorporating children into a brutal conflict – rather than celebrate that something is finally happening to help end one of Africa’s most brutal conflicts.

Nanjala Nyabola, a writer and political analyst, is currently a graduate student at Harvard Law School.