By Oliver Cotton
Oliver Cotton is a law conversion course student. He graduated with a BA degree in International Relations from the University of Leeds in 2017, with a particular interest in terrorism, R2P and humanitarian law.
Despite the significant role that African states have had in both the creation of the ICC and its ongoing support, African nations and as a collective, the African Union (AU) have become increasingly frustrated with the International Criminal Court (ICC). This essay, primarily focusing on the ICC’s Sudan investigation, posits that African states have two core complaints and that neither is justified. The first complaint is that the ICC undermines African peace and violates the immunity of heads of state, particularly those not party to the ICC’s founding treaty, the Rome Statute, through continuing to investigate African conflicts when the African Union requests deferral. For instance, several African states’ have argued that the ICC hampers peace processes by compromising leaders’ immunity through indictment. It will be asserted, however, that this frustration is unjustified in two ways. Firstly, the structural inequalities of the United Nations Security Council (UNSC) would be a more appropriate target for criticism, because African states were primarily concerned with deferral in the case of Darfur, which was a UNSC failing. Secondly, the AU’s request for deferrals of ICC investigations on the grounds of stability are unjustified because their premises are ill-defined and erroneous. The second core complaint from African states is that the Court unfairly targets and discriminates against Africans. However, despite the disproportionate number of investigations within Africa, the fact that many African states trust the ICC’s judgement brings this claim into question.
The AU’s frustration with the UNSC’s role and deferral process
A principal frustration that some African states and the AU have directed towards the ICC, is their vexation towards the Security Council’s and, concomitantly, the ICC’s dismissal of their demands for a deferral of African investigations for a year long period, in line with Article 16 of the Rome Statute (1998). The effect of which has been the perceived marginalisation and lack of authority that African states consider themselves to have over the justice proceedings of their own affairs and crimes, despite their influence in the formation of the Court (Mills, 2012). This frustration should be directed towards the role of the Security Council and the structural inequalities and power imbalances that it represents, underscored by all five of the permanent UNSC members emanating from outside of Africa. Beyond their misplaced frustration with the role of the ICC instead of that of the UNSC, this essay asserts that the necessity of deferrals, notably in Sudan, was not adequately established. At its 2009 Summit in Sirte, the AU expressed and posited two principal reasons for its non-cooperation stance towards the ICC in reaction to the Security Council’s decision not to defer the Sudan investigation that it referred to the Court in 2005 (Jalloh et al, 2011; Ssenyonjo, 2013). They are: the belief that incumbent heads of state not party to the Rome Statute are immune from the Court’s jurisdiction under Article 98(1) (Rome Statute, 1998); and the perspective that prosecutions during ongoing conflicts hinder the achievement of peace. In terms of the former, the AU argued that the ICC’s jurisdiction should not extend to states that have not ratified the Rome Statute, in line with the sovereign principle of non-intervention (Akande and Shah, 2011). This argument is premised on the logic that in international law, ‘generally only parties to a treaty are bound by its provision’ (Sirleaf, 2016, p.751). There is significant contestation regarding the complexity of whether senior members of governments should be immune from ICC prosecution if they have not consented to the Court’s jurisdiction. However, given that the Security Council referred the case to the ICC under Resolution 1593 (UNSC, 2005) and that Sudan is a member of the UN and thus subject to the UN Charter, it is posited that Sudan’s immunity has been waived in a similar way to those of state parties, pursuant to Article 27 (Rome Statute, 1998), thereby legitimising the indictment (Du Plessis, 2010; Ciampi, 2008).
It is also important to stress that African states are not just frustrated with the UNSC’s and the Court’s role in by-passing the lack of jurisdiction that the ICC has over non-state parties, but also the more general indictment of incumbent heads of state. African leaders, party to the Rome Statute, for instance Malawi’s president, Bingu wa Mutharika expressed that, ‘to subject a sovereign head of state to a warrant of arrest is undermining African solidarity’ (Mills, 2012, p.436). African states’ criticism of the indictment of incumbent leaders, whether party or not to the ICC, is premised on the crippling effects that arresting a head of state has upon the credibility of the states themselves. However, implicit in the opposition of African countries to the ending of the impunity that leaders enjoy is also the fear amongst heads of state who have committed mass atrocities that ‘their number might be next’ (Mills, 2012, p.430). This is exemplified by the AU’s formation of the Malabo regional court in 2014 and its incorporation of an immunities provision, which states that ‘no charges shall be commenced or continued before the Court against any serving African Union Head of State or Government’ (Amnesty International, 2016). This veiled effort to further embed the impunity of African leaders is unjustifiable and starkly inconsistent with the ICC’s principal aim to eradicate the immunity of all individuals under its jurisdiction, set out in the Rome Statute (Sirleaf, 2016).
The principal reasoning expounded by the AU for the deferral of African cases is that the arrest of officials or even leaders of African governments during conflict situations is detrimental to the brokering of peace, which African governments argue should be the primary concern of the international community. The AU expressed that its objection to the prosecution of Sudanese leader, Omar al-Bashir and other officials lay in the timing of Bashir’s indictment as opposed to the case itself. Indeed, in line with the AU’s opposition to external interference and desire for greater autonomy, the regional institution discussed whether, instead of the ICC, it could alternatively prosecute Bashir, implying that African states are willing to prosecute war criminals themselves (Mills, 2012). The organisation nonetheless called for the arrest of Bashir to be deferred in the interest of establishing peace in Sudan. It cited that the investigation could ‘seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur and the promotion of long-lasting peace and reconciliation’ (AU, 2008, p.2). Support for a deferral in order to benefit the Sudanese peace efforts extended beyond African states. Russia, for instance stressed its opposition to the ICC’s interference in Sudan, instead emphasising the importance of Sudan investigating its own crimes and the ICC acting as a court of last resort, in line with the principle of complementarity (UNSC, 2008).
The elevation of peace above judicial action in order to end immunity, and the perception of irreconcilability between them are popular views among academics. It is contended that the ICC’s involvement acts as an obstacle to establishing peace (Rothe and Collins, 2013; Kastner, 2007) on the basis that its indictments have incentivised violence in: Sudan, Colombia and Uganda (Sirleaf, 2016; Riveros, 2009; Belloni, 2006). For instance, in Uganda, the ICC’s indictment of Joseph Kony was conceptualised as leading to the cessation of the Juba peace negotiations (Rothe and Collins, 2013). Likewise, in Sudan, it is noted that the arrest warrant for Bashir plausibly reinforced the rebels’ cause, in turn, resulting in the Justice and Equality Movement eliminating the possibility of negotiations (Simons et al, 2008). Despite the relative credibility of this argument in theory, in practice, there was little tangible evidence to validate the necessity of a deferral (Oette, 2010). It is important to stress that the legitimacy of a deferral following a UNSC referral of a situation to the ICC is dependent upon a change in the circumstances of a case. That is, from one that has already been considered to warrant ‘effective prosecution by the ICC into one in which the Court’s exercise of jurisdiction threatens the peace and security of the world’ (Ciampi, 2008, p.891). The Sudan situation did not merit a deferral as the AU failed to highlight any tangible change in circumstances that could plausibly justify the postponement of the ICC’s investigation in Darfur. Equally, there was no clear evidence that the ICC’s involvement obstructed peace processes or that peace would be more likely to prosper in the case of a deferral, undermining the AU’s frustration. Indeed, the Darfur conflict has persisted since 2003, highlighting the opportunity that Sudan’s government has had to foster peace and to prevent the direct involvement of the ICC through the prosecution of its own offenders, under the principle of complementarity (Jalloh et al, 2011; Fritz, 2012). Yet, it has failed to do so, illustrated by the failure of the 2006 Darfur Peace Agreement (Oette, 2010) and the unstable, violent conditions prior to the ICC indictment, underscored by the eruption of conflict in Omdurman and Abyei in 2008 (HRW, 2008). The failure of Sudan’s domestic proceedings, or more fittingly, its lack of willingness to indict its own officials, justifies the need for the ICC’s external involvement (Jalloh et al, 2011).
The ICC’s credibility has been weakened by the lack of support from the Security Council and African states in arresting Bashir. Nonetheless, as has been argued, in the absence of a justifiable explanation for a deferral of the Sudan case, the ICC’s continued investigation was warranted and prevented the Court from setting a precedent of subordinating impunity in favour of political expediency (Oette, 2010). Furthermore, in contrast to the argument that peace should be prioritised above the prosecutorial duties of the ICC, this essay elucidates that alternatively, peace and justice are inseparable goals. As opposed to facilitating the establishment of peace, deferring cases against heads of state in the absence of exceptional circumstances would have the perverse effect of encouraging leaders to sustain conflict in order to delay their prosecution indefinitely (Oette, 2010).
The perception of the ICC as a Western tool of African oppression
African leaders and academics alike have cited the ICC as a tool of Western oppression that selectively and unfairly discriminates against African nations, particularly in the wake of Bashir’s 2008 indictment. Indeed, the African scholar Eberechi (2011) stressed that the ‘ICC is rapidly turning into a Western court to try African crimes against humanity’ (p.55). Rwandan president, Paul Kagame even stressed that the ICC’s unfair targeting of Africans has colonialist and racist overtones (Steinberg, 2016; Sudan Tribune, 2009). The extent of this frustration is encapsulated by the African Union passing a resolution in 2008 to appeal to the European community to halt the indictment of Africans (Mills, 2012). The pinnacle of this frustration and subsequent opposition to the ICC’s operational functioning by African states came with South Africa’s, the Gambia’s and Burundi’s announcement of their plans to withdraw from the Court (Keppler, 2017). Although the AU has consistently found issue with the Court’s work, its endorsement of the withdrawal of African states collectively from the ICC at the 2017 AU summit signaled the culmination of the continent’s frustrations with universal jurisdiction and the role of the ICC (Jalloh et al, 2011; Maasho, 2017). This has even prompted commentators to question whether such action signals the end of the ICC (Allen, 2016; Cronin-Furman and Schwartz, 2016). This is grounded in the logic that international institutions, such as the League of Nations have historically become redundant and perished once members have flouted their jurisdictions and withdrawn their membership (Murithi, 2012).
Both Gambia’s and South Africa’s decision to withdraw from the Court have since been revoked, however, it is clear that the frustration amongst African governments regarding its perceived biased targeting has damaged the ICC’s credibility. This is particularly apparent, given that African membership and support for both the ICC’s founding and ongoing execution have been integral to its relative success as an institution to date. Nevertheless, upon analysis, the perspective that such frustration could beckon the ICC’s demise is thoroughly futile and simplistic. It obscures the disparity and disagreement amongst African states regarding their support for the ICC. For instance, the majority of African states either opposed the decision by Gambia, South Africa and Burundi to declare their withdrawal from the ICC or reaffirmed their support for the Court (Momoh, 2017; AU Summit, 2017). Thus, the AU’s declaration of non-cooperation and withdrawal from the ICC did not represent the majority view.
The ICC’s selectivity and Western bias is supported by nine out of ten of the situations under investigation by the Court residing on the African continent (ICC, 2017a). Nonetheless, the African frustration regarding the perceived oppression of the ICC grossly misrepresents the reality. Although Western, powerful states are more capable of averting the Court’s jurisdiction and justice, the ICC is far from a Western institution, represented by the Gambian nationality of its incumbent prosecutor, Fatou Bensouda (Smith, 2012). Furthermore, it is clear that this perceived Western oppression of Africans masks the accountability, autonomy and transparency inherent in the ICC (Du Plessis, 2010). The frustration is additionally flawed, given that far from unfairly targeting the continent, African states have, in fact, requested the ICC’s investigation into their own affairs, confirming that the ICC purely acts in the interests of African victims. This is signified by self-referrals marking five out of the nine African situations under investigation (ICC, 2017a). The fact that the Security Council has only referred two out of these nine cases to the ICC brings into question Mamdani’s (2009) narrative of the ICC as a tool of the West. The imbalance in the Court’s prosecutions and investigations into African situations is predominantly explained by factors outside of its control and its limited jurisdiction, marked by neither America, China, nor Russia being party to the ICC Statute (ICC, 2017b). Notably, in the absence of a Security Council referral, the ICC can solely prosecute individuals from its state parties via self-referrals or the proprio motu capabilities of the ICC Prosecutor. The Court is thereby heavily dependent upon state support and power politics. Nonetheless, the frustration of African states is further undermined by the ICC’s evident willingness and intent to prosecute the most heinous war crimes wherever they occur when the Court has both the jurisdiction and the authority to do so (Jalloh, 2010). This is evidenced by five of the ten situations under preliminary investigation coming from outside of Africa, notably, Bensouda’s reopening of the case against British nationals in Iraq, previously closed by her predecessor, Ocampo in 2006 (ICC, 2017c). The higher prevalence of conflict and, concurrently, war crimes, coupled with Africa representing the region with the most signatory states to the Rome Statute, further justifies the disproportionate number of African cases investigated by the ICC (Jalloh et al, 2011; Brock-Utne, 2001).
In examining the justifiability of African states’ frustrations with the ICC, this essay has evaluated two overarching dissatisfactions which have impaired the relationship between the ICC and the African Union. It has concluded that neither frustration, nor the broader discontent that African governments have directed towards the ICC are justifiable. The AU’s frustration regarding the overlooking of its appeal for the deferral of African cases under ICC investigation should be re-directed towards the role of the Security Council and its embodiment of structural inequalities. African governments’ vexation towards the ICC for pursuing cases despite AU opposition is additionally unwarranted, premised on two shortcomings. They are: The African Union’s failure to expound the necessity of deferrals in the interest of peace; and some African states’ incompatible and flawed belief that incumbent heads of state should enjoy impunity, given that the ICC was definitively set up to end the immunity of all individuals under its jurisdiction and remit. African states’ criticism of the Court as a Western tool that is biased against and seeks to oppress Africans is an equally misplaced frustration. For, the ICC’s sizeable jurisdiction within Africa, coupled with the greater willingness of African states to self-refer cases justifies the disproportionate number of prosecutions and investigations on the continent. Nevertheless, going forward, it is important that the ICC builds upon and translates some of its five preliminary examinations from situations outside of Africa into fully fledged investigations. Pursuing cases beyond Africa more diligently and purposefully would advance the ICC’s inherent goals of ending the immunity of war criminals and protecting victims globally, whilst simultaneously acting to thwart African states’ increasing opposition towards the Court. In a similar vein, African governments can alleviate their frustrations by increasingly adhering to the ICC’s role as a court of last resort and its principle of complementarity by emboldening their domestic judicial systems and, concurrently, progressively prosecuting their own crimes.
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