This month marks the 20th anniversary of the International Criminal Court (ICC). The inauguration of the first permanent international criminal tribunal of its kind tasked with the solemn duty to prosecute, judge, and punish those responsible of perpetrating the most egregious atrocities was widely hailed as a landmark achievement that would help preserve the global public order.
During the signing ceremony of the Statute of the Court (the Rome Statute), the then-secretary-general of the United Nations, Kofi Annan, described the court as a “gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law”.
Cherif Bassiouni, the Egyptian American jurist widely regarded as a leading expert in modern international criminal law and the architect of the ICC, described the foundation of the tribunal as “the end of a historical process,” but also “the beginning of a new phase in the history of international criminal justice”.
The 20th anniversary of the court offers an important opportunity to take stock of the court’s journey so far, and to reflect on the challenges facing the institution, particularly its alleged Africa bias, calls for withdrawal and non-cooperation, and lack of support from the major players in the international order.
Writing for Al Jazeera Opinion on the 20th anniversary of the court, Liechtenstein’s Foreign Minister Aurelia Frick offered a passionate defence of the ICC, emphasising its positive legacy as a global watchdog against impunity and its innovative role in expanding the canon of international criminal law to bring about cultural shifts that would strengthen and sustain the rules-based international order.
Frick valorised the ICC as the “embodiment of the world in which [she] wants to live and serve” and called upon states to support and defend it.
While Frick is right to point out the legacy of the court and the need to defend it from “populists, nationalists and those who want to roll back the achievements of multilateralism”, she appears to dismiss its alleged Africa bias as insignificant and presents the ICC as the achievement of multilateralism.
In doing so, she repeats the rosy teleological narrative of the great uninterrupted and irreversible progress of a global system of justice told by the defenders of a “multilateral order” that is not multilateral at all.
The problem with this line of thought is not that it is necessarily wrong but that it obfuscates the complex colonial legacies of the international legal order, and its alienation and erasure of the Global South from the history and story of the global public order.
The ICC’s Africa bias
Of the 11 situations being investigated by the ICC, 10 involve African countries. Of those 10, five are self-referrals – the state refers itself to the ICC to investigate a situation within its territory because it is unable to prosecute perpetrators of crimes that fall within the jurisdiction of the ICC – genocide, war crimes, and crimes against humanity.
This curious and disproportionate focus of the court on Africa, particularly the cases against al-Bashir and Kenyatta, angered African leaders, leading to accusations of racist bias. In October 2013, the African Union called upon African states not to cooperate with the ICC, after the Security Council refused to defer the proceedings against the two leaders.
The former Ethiopian PM Hailemariam Desalegn accused the tribunal of being a racist institution “hunting” Africans while Burundi, who became the first country to withdraw from the court, criticised it for being “a political tool used by [foreign] powers to remove whoever they want from power on the African continent”.
The accusations of simple and overt racism are somewhat exaggerated. They are clearly part of a self-serving ploy by the continent’s abusive leaders who oversaw atrocities of unimaginable magnitude and are seeking a get-out-of-jail-free card.
As the African Union and several African leaders have shown, it is easier to dismiss the court’s fight against impunity as a neo-colonial attempt by the West to pursue Africans in the name of justice than to explain their own horrendous and intolerable human rights records. In fact, there is something rotten about the very people responsible for overseeing some of the most shocking atrocities against their own people invoking colonialism and racism to avoid responsibility and accountability.
However, the disproportionate number of investigations against Africans cannot simply be explained away by the sheer scale and magnitude of atrocities in Africa. The point is not that the court is racist, nor is it that it lacks objectivity in the sense that it is biased against Africa.
The point is that the ICC, just like the larger international legal order within which it operates, is Eurocentric and the world views, perspectives and stand points it reflects and embeds are uncompromisingly European. International institutions, and the norms, categories, priorities and theories dominant in international law come from a particular place and reflect the stand points of that place.
International law, the postcolonial theorist Antony Anghie argues, is part and parcel of the imperial knowledge system, encapsulating European imperial values, experiences and perspectives. As an integral part of this knowledge system, the ICC represents the European stand point because its theories, principles and norms were formed in the heartland of Europe, crafted in European intellectual and cultural milieus.
While there is no conclusive evidence to suggest that the ICC’s Africa focus is driven by racist bias, it is nevertheless critical to recognise that even seemingly innocent theories of accountability and justice bear the imprint of this imperial standpoint and are closely tied to the world views and interests of the place and culture from which they come.
ICC as a multilateral institution
The ICC, like all other “multilateral” international institutions, is not genuinely multilateral. International law and international organisations first emerged not as an intellectual project, but instead as a colonial knowledge project in the service of the empire.
Distinctively Euro-American ideals and narratives determine the perspectives and standpoints of international organisations, including the ICC. As Finnish international lawyer Martti Koskenniemi points out, “Europe is [the] geographical, political, and conceptual epicentre” of international legal thought and it “served as the origin, engine and telos” of international legal knowledge.
When the ICC and its defenders delineate its functions as “the fight against impunity”, “responsibility to protect”, and “advancing accountability and justice”, they deploy the analytic frameworks, normative languages, and vocabularies that are intrinsically European, whose experts and advisers hail from European and American universities, think-tanks and NGOs.
In so doing, the ICC sadly reinforces Western perspectives and standpoints as universal maxims valid for all people and all nations, and re-enacts racialised metaphors of savages, victims and saviours in the name of truth and justice.
These metaphors further reaffirm the sharp divisions between the West and non-West, whereby the atrocities perpetrated by savages against victims should be prosecuted, judged and punished by the civilised West according to Western standards.
This is best exemplified by two points: one, the fact that some of the most powerful states responsible for the establishment and maintenance of the global public order, namely the US, Russia, and China, are not parties to the ICC, creating a two-tiered standard of accountability for the powerful and the powerless; and two, the principle of complementarity, which provides that the ICC intervenes only when national jurisdictions are either unable or unwilling to prosecute.
As the US and German representatives to the Rome Conference bragged repeatedly, the judicial systems in the West will never be found to be unable or unwilling to prosecute whereas the ICC can make out such a case easily against non-Western states.
Beyond the immediate concerns of accountability and fighting impunity, painting a rosy picture of international institutions, including the ICC, carries the complex and horrific risk of reinforcing the unequal global knowledge order by establishing some standpoints and perspectives as inferior while valorising others as superior.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.