The International Criminal Court’s Africa problem

All cases launched so far by the ICC involve Africans, throwing into question the court’s “international” nature.

Lubanga DRC IRC
Critics have said the ICC focuses on crimes in Africa, ignoring atrocities in the other parts of the world [AFP]

African political leaders widely believe that the the International Criminal Court is unfairly targeting Africans.

At the recent African Union summit held on May 26-27, the AU’s Assembly adopted a decision requesting the International Criminal Court refer back to Kenya its cases against Kenyan President Uhuru Kenyata and Vice President William Ruto.

This is the latest in a series of decisions since 2008 in which the African Union expressed its displeasure with the ICC. The Assembly insisted upon “the need for international justice to be conducted in a transparent and fair manner, in order to avoid any perception of double standard, in conformity with the principles of international law”.

During the press conference at the conclusion of the AU summit, the chairperson of the Assembly – Ethiopia’s Prime Minister Hailemariam Desalegn – said: “African leaders came to a consensus that the ICC process conducted in Africa has a flaw. The intention was to avoid any kind of impunity but now the process has degenerated to some kind of race-hunting rather than the fight against impunity.” While there is no doubt that these are strong views, in substance they are restatements of previously expressed views. For instance, in 2009, Benin’s President Boni Yayi said that “[w]e have the feeling that this court (ICC) is chasing Africa”.

As expected, the response from the media, ICC supporters, and the ICC itself was critical of the AU’s position. In a statement issued on May 29, the ICC’s president pointed out that “[d]ecisions are taken independently on the basis of the law and the available evidence and are not based on regional or ethnic considerations”.

In a news article published on its website, Amnesty International characterised the AU’s decision as a manifestation of a recent trend in which the “AU has become a forum for some African leaders to attack the ICC and to seek to protect those charged by the Court”. One of South Africa’s most powerful online magazines, Daily Maverick, put it even more strongly, lamenting that “African leaders aren’t interested in justice. They’re interested in immunity… in voting to protect Uhuru Kenyatta and William Ruto against the ICC, Africa’s presidents and heads of state are just protecting themselves”.

Are these concerns about the ICC valid? How should these claims or concerns be understood?

“A Western court to try African crimes’

All cases so far launched by the ICC have been against Africans. This “Africanisation” of the ICC is one of, if not the major, source of the ICC’s troubles in the continent.

The ICC’s current list of cases puts into question the international character of the ICC, giving credence to descriptions of the court as being the “International Criminal Court for Africa”. Echoing this sentiment, Professor Mahmood Mamdani of Columbia University wrote that “[i]ts name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity”.

The court’s focus on Africa… perpetuates the old and tired Conradian caricature of Africa as the embodiment of the Hobbesian state of nature.

The court’s focus on Africa also unwittingly perpetuates the old and tired Conradian caricature of Africa as the embodiment of the Hobbesian state of nature: brutal, barbaric, chaotic, monstrous, and the theatre of ICC crimes.

The ICC does not by design take a decision to target Africa. However, as the Nation‘s Karen Rothmeyr put it: “The ICC’s choices of whom to go after stem… from the assumption that underlies much of the West’s interaction with the continent: these people need our superior wisdom and ‘help’.”

Certainly, serious violations have occurred in the situations in which the ICC is involved. What makes the ICC’s focus on Africa particularly troubling, though, is that it remains blind to similar situations in other parts of the world. Accordingly, the question is, as Professor William Schabas wrote: “Why prosecute post-election violence in Kenya or recruitment of child soldiers in the Democratic Republic of the Congo, but not murder and torture of prisoners in Iraq or illegal settlements in the West Bank?”

The position of the AU Assembly against the court in part manifests a rejection of this apparently skewed application of the ICC process.

This seemingly selective application of ICC processes also relates to concerns that ICC is being turned into a political tool. Understandably, the ICC emphasises that it is free from any political influences, and the ICC’s president reiterated that “[t]he ICC operates strictly within the mandate and legal framework created by the Rome Statute, the founding treaty of the Court, and cannot take political factors into account”.

While legally speaking this position is largely true, the nature and structure of international politics is such that the application of international justice processes more often than not reflects the distribution of power within the international community. The ICC is not immune to this, and the way in which the ICC launched its case in Libya is a testimony. The speed with which and the way the ICC prosecutor launched this case also betrays the ICC’s acquiescence to its instrumentalisation by UN Security Council politics. 

Another major concern is that the ICC’s focus on prosecution limits discussion within the domestic sphere and crowds out alternative ways of dealing with political violence, while giving leverage to international actors. This is what informed the position the AU adopted in relation to the ICC cases in Darfur.

ICC focus on Africa is mostly invited

Although the claim that the ICC targets Africa and serves the political interests of global powers is not baseless, the ICC’s focus on Africa is also in large measure a result of requests by African states. In a press statement responding to the AU’s recent decision, the ICC’s president noted that many of the court’s cases are self-referred. Out of the 18 cases that the ICC is currently handlling, 12 were initiated upon the request of countries concerned, while six were launched based on the referral of the UN Security Council.

Seen through the victims’ eyes, there is a legitimate concern that the AU’s position does not reflect their interests.

Some of the referrals, such as those in Uganda and Kenya, were inspired by domestic political calculations rather than the interest to serve justice. Indeed, in charging some people and not others in these cases, the ICC was in some ways playing local politics.

Yet for victims of alleged crimes, the ICC represents the only mechanism for fighting impunity by political leaders, who cannot otherwise be held accountable. There is, in the words of Mamdani, a popular outrage “throughout Africa, against the impunity with which a growing number of regimes have been resorting to slaughter to brutalise their populations into silence”. Seen through the victims’ eyes, the AU’s position does not acknowledge this outrage and the need to fight impunity. The AU has thus been appropriately criticised for failing to show any sensitivity to the concerns of victims, as it does to those being pursued by the ICC.

The ICC has been in force for almost 11 years now, and by far the major challenge facing the court is how to deal with Africa. The recent decision of the AU Assembly embodies this challenge. Though partly self-serving, there are also legitimate concerns underpinning the AU’s criticism of the ICC.

The ICC’s success depends on whether, and to what extent, it shows flexibility in addressing the perception that it holds a double standard, and avoiding its instrumentalisation by global power politics. In this regard, the announcement by the judges of the ICC on June 3 that the court may hold parts of the trial of William Ruto in Kenya or Tanzania is a very interesting development.

Solomon Ayele Dersso, a legal academic and analyst of African affairs who regularly writes on African Union issues, is a senior researcher at the Institute for Security Studies, Addis Ababa office.

Follow him on Twitter: @SolomonADersso

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy nor the positions of the institutions with which the author is associated.