WHY IS THE ICC TRYING ONLY AFRICANS?
Written By Antun Katalenić
The International Criminal Court was set up in 2002 in accordance with the Rome Statute from 4 years earlier. The official role of the court based in the Hague, Netherlands is to investigate and try individuals for acts of genocide, war crimes and crimes against humanity. However the jurisdiction of this court is not global. With the help of the aforementioned Rome Statute, 192 member states of the United Nations can be split into four categories; Those that signed and ratified the agreement, those that signed but failed to ratify it, those that didn’t sign it at all and those that signed it but later removed their signature. Especially interesting is the last category as it includes only Sudan, USA, Israel and Russia. But more may follow suit.
The recent announcement by Russia that it shall withdraw is signature is, in terms of law, pointless as it never actually ratified the agreement. Let’s rather focus on the 3 African countries – Burundi, the Gambia and Republic of South Africa – that formally announced their intent to the United Nations to leave the ICC. Similar decisions were already approved by the parliaments in Kenya in 2013 and Namibia a couple of years later but they never officially pulled the plug. The main issue that African member states have with the ICC is that it is an imperial tool of the West which exists to try exclusively African heads of state. The Gambian Information Minister, Sheriff Bojang went as far as calling it the ‘International Caucasian Court’ for persecuting and humiliating only people of colour. Let’s look at the stats.
The numbers don’t lie. ICC has 124 member states of which 34 are African. In the 14 years of its existence, the court indicted 39 individuals, all of them African. Myth confirmed. Or not. To understand the numbers, we first need to understand how the ICC actually works. Most of its funding unsurprisingly comes from EU members. Japan, Australia, Canada and New Zealand pay their share while the rest are lagging behind.
The fact remains that the ICC is a part of a network that ensures the status quo where global superpowers rule, condemning Africa to the periphery.
The ICC can open an investigation in three instances. Firstly: If a citizen of a member state is accused of a crime. Secondly: If a crime was committed on the territory of a member state. And lastly: If the ICC is called upon to investigate by the United Nations Security Council. The latter instance is particularly interesting seeing how three out of five permanent members – USA, Russia and China – aren’t even members of the court. This fact didn’t stop them in using their power to call upon the ICC to arrest the president of Sudan Omar al-Bashir and Libya’s ex-president Muammar Gaddafi as both their countries are not members of the ICC. No less important for understanding the ICC is realizing the fact that permanent members in the Security Council have the power of veto all ICC investigations, allowing them to shape law and order to their liking.
In this context, the answer to why the ICC is not trying EU prime ministers or US presidents becomes abundantly clear. This however still leaves the question of investigating non-African based crimes over the globe. The ICC’s chief prosecutor Fatou Bensouda, who is ironically a former aide to the outgoing Gambian president, has recently tried to improve the court’s image by opening up investigations on the alleged war crimes in Georgia, Ukraine, Afghanistan, Colombia, Iraq and Palestine. Only the end result of these investigations will increase the ICC’s legitimacy or further highlight its futility.
So, why have the African 34 decided to voluntarily sign and ratify the Rome Statute anyway? The reason can most likely be found in an agreement between 78 African, Caribbean and Pacific countries from 2000. The Cotonou agreement named after Benin’s largest city where it was signed, ensures development aid and help with integration into the global economy for developing countries, in return these countries agreed to take part in international criminal law. Unlike in Africa, most Asian countries are not parties to the Rome Statute.
ICC has 124 member states of which 34 are African. In the 14 years of its existence, the court indicted 39 individuals, all of them African.
Alright, so African countries are the victims of the West and its postcolonial interference in their internal affairs. Not exactly. Uganda, Democratic Republic of Congo, Central African Republic and Mali all called upon the ICC themselves to investigate crimes committed on their territories. Same goes for Kenya and Cote d’Ivoire. The only exceptions to this pattern are the aforementioned Libya and Sudan.
So where is actually the reason for the recent withdrawals or more accurately, announcements of withdrawals? Let’s take a look at Burundi and the Gambia first. These two are simply authoritarian dictatorships that wish to avoid the long arm of the law. The third presidential term won by Pierre Nkurunziza plunged Burundi into a spiral of post-election violence. Crimes are said to have been committed by state forces and those aligned to it, which got ICC’s attention. Meanwhile Nkurunziza’s colleague in the west of Africa is disputing the election results in order to prolong his 22-year rule that has been riddled with claims of mass violations of basic human rights.
The Gambian Information Minister, Sheriff Bojang went as far as calling it the ‘International Caucasian Court’ for persecuting and humiliating only people of colour.
However the Republic of South Africa is different. Just a decade ago it was one of ICC’s biggest supporters on the continent but that is no longer the case. ICC itself does not have the power to arrest the indicted and therefore has to rely on its member states to do it for them. Such was the case when Sudan’s leader al-Bashir was on a trip in South Africa yet the hosts refused to detain him. The ICC’s pressure on South Africa in turn produced a counter-effect, forming a ridge between the two.
Most arguments by the ICC opponents make sense. The fact remains that the ICC is a part of a network that ensures the status quo where global superpowers rule, condemning Africa to the periphery. The International Criminal Court still has a long way to go to reach its ideal but the fact remains it has successfully intervened where local courts failed to do so. The recent example of a successful verdict against the former Chadian dictator Hissène Habré by the Extraordinary African Chambers in Senegal set up by the African Union represents an alternative but these are still baby steps as such courts will forever be under the influence of interests by the stronger member states. Much like the ICC in fact.
A version of this article was first published on Radio Študent.