By Zeinab Drabu
Zeinab Drabu is a recent graduate from the University of Leeds, where she achieved a First Class Honours in her BA degree in German and International Relations. Her academic and research interests include international politics, international law and international ethics.
The International Criminal Court is currently facing its most serious reputational crisis concerning its role and impact in relation to international criminal justice within the international arena. Nowhere is this crisis more profound than amongst African States that are both party to the International Criminal Court as well as the Constitutive Act of the African Union. Criticisms articulated by African states, including the labelling of the International Criminal Court as an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Al Jazeera, 2016) by the Gambian Information Minister Sheriff Bojang, are above all symbolic of the mounting frustrations that African states exhibit towards the Court. This essay will assess whether and to what extent such frustrations are justified in terms of their credibility and legitimacy. For this, the analysis will seek to determine whether these frustrations have been elicited due to the Court’s inability to fulfil its aims and objectives as outlined in the Rome Statute. Firstly, frustrations surrounding the Court’s alleged bias in terms of its selection of predominantly African cases will be reviewed. This essay will then critique frustrations regarding the International Criminal Court’s relationship to the United Nations Security Council, particularly through an examination of the case of the indictment of Sudanese President Omar Al-Bashir. As the ‘Court operates at a crossroads between law and politics’ as noted by scholars such as Arbour (2014, p.201), this essay will contend that existing frustrations articulated by African states towards the International Criminal Court are on the whole juridically unjustified, as they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. Furthermore, this essay will demonstrate that existing frustrations are principally politically motivated, with the purpose of delegitimising the Court to serve the political interests and objectives of African states inherent in the Court’s handled cases.
Is the International Criminal Court exclusively targeting Africa?
In view of the submission of withdrawal notices from the International Criminal Court by the African states of Burundi, Gambia and South Africa in October 2016, despite eventual revocations in the cases of the latter two, scholars such as Werle and Vormbaum (2014, p.181) contend that the ‘Afro-centric focus of the International Criminal Court has created a distorted perception within the African continent about the intentions underlying the establishment of the Court’. The Court was initially founded to prosecute the most serious crimes facing the international community, including ‘the crime of genocide, war crimes and crimes against humanity’ (ICC, 2011, p.3), following the entry into force of the Rome Statute on the 1st July 2002. Objectively it is evident that all cases pursued to date have been directed towards African nationals. Specifically, submissions have included ‘those by individual governments in the cases of Uganda, the Democratic Republic of the Congo [DRC] and the Central African Republic [CAR], self-initiated interventions by the ICC chief prosecutor, Louis Moreno Ocampo in Kenya and Côte d’Ivoire and two UN Security Council referrals in Sudan and Libya’ (Murithi, 2012, p.4). Taking such observations into account, frustrations concerning the Court’s disproportionate focus on Africa are empirically justifiable. However, the first three situations outlined were self-referrals and therefore investigated at the request of the respective states themselves. In addition, crimes committed in all cases fell under the jurisdiction of the International Criminal Court.
Currently there are 124 State Parties to the Rome Statute of the International Criminal Court, of which 34 are African. Hence, quantitatively, Africa constitutes the most heavily represented region in the International Criminal Court, which not only recognises its permanency and legitimacy, but also accepts and emulates its jurisdiction. In addition, the International Criminal Court benefits extensively from the expertise of African professionals, with numerous Africans occupying high-level positions in all its organs. This includes Ms. Fatou Bensouda of the Gambia, who was instated as the Chief Prosecutor of the Court in 2012. In light of these structural and demographic contributions, African recognition of the legitimacy and authority of the International Criminal Court as an institution is significant.
The contributions of African states during the establishment of the International Criminal Court are also imperative to consider when assessing the extent to which their frustrations with the Court’s allegedly selective approach are justified. Indeed, whilst numerous African states were present for the drafting of the Rome Statute, the founding treaty of the International Criminal Court at the Rome Conference in July 1998, the clear majority voted in favour of adopting the Rome Statute and establishing the International Criminal Court. Such extensive support suggests that the objectives and purpose of the Court at the time of its establishment aligned with the interests of the majority of African states. In addition, on the 2nd February 1999, Senegal ratified the Rome Statute of the International Criminal Court, becoming the first State Party to ratify the Statute (United Nations, 2014), encapsulating and reaffirming African support for the Court. Furthermore, it is important to note that current efforts by the International Criminal Court to expand its international outreach are actively being pursued in terms of its prosecution of mass atrocity crimes. As well as the recent initiation of a proprio motu investigation into crimes against humanity and war crimes committed in Georgia in 2008, a Report on Preliminary Examination Activities (2016, p.6) issued by the Chief Prosecutor outlines ‘preliminary examinations currently underway in a number of states across different continents including Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Ukraine’.
Nevertheless, dismissals to date by the International Criminal Court of cases outside Africa have triggered frustrations from African states that the ‘International Criminal Court is practicing a form of “selective justice” which purposely avoids the prosecution of diplomatically, economically, financially and politically strong countries’ (Mbaku, 2014, p.10). A key example highlighted by Dugard (2013, p.563) which illustrates this is the Prosecutor’s failure to investigate alleged war crimes committed by Israel and Hamas during Operation Cast Lead in 2008. Whilst Dugard (2013, pp.567-569) emphasises the Prosecutor’s weakness in confronting Israel and its allies such as the United States as a key causal factor in the case’s dismissal, what is most interesting to note is the Prosecutor’s decision to investigate crimes committed in Mali instead, where the evidence is less clear. Whilst this example bolsters the credibility of frustrations regarding the International Criminal Court’s active preference in prosecuting African cases, scholars such as Saltzman (2013, p.164) counter this contention. Saltzman contends that at the time of the offensive, although the Palestinian National Authority had recognised the International Criminal Court’s jurisdiction, it was not a party to the Rome Statute and therefore not under the Court’s jurisdiction. Thus, although the structural limitations of the Rome Statute can be universally applied to different cases in assessing whether African state frustrations are justified, this example highlights the necessity to equally explore case-specific political dynamics in conjunction with the subject matter of the case. It further illustrates an instance where structural limitations of the International Criminal Court have delegitimised rhetoric regarding the selective targeting of African states by the International Criminal Court.
The Paradox of state co-operation: an analysis of the case of Omar Al-Bashir
On the 4th March 2009, the International Criminal Court issued a warrant of arrest for President Omar Al-Bashir of Sudan on charges including genocide, crimes against humanity, and war crimes. As these are all crimes that fall within the jurisdiction of the Court in accordance with the Rome Statute, the case possesses legitimate prerequisites for investigation. As well as being the first case in which a sitting head of State has been issued with an arrest warrant, scholars such as Mills (2012, p.407) acknowledge that it is also the first in which a ‘case before the ICC has forced states to confront their multiple interests and responsibilities in light of global power dynamics’. This is due to the fact that African states are required to overcome the conflict between their legal obligations under the Rome Statute and their political commitments as member states of the African Union in determining their involvement and approach respective to the case of the indictment of Al-Bashir.
Frustrations concerning the alleged ‘political abuse of universal jurisdiction against African officials by Western states’ (Van der Wilt, 2011, p.1044) appear to oppose the African Union’s policy asserting that ‘heads of state enjoy diplomatic immunity’ when confronted with arrest warrants (Akande and Shah, 2010, p.815). The case of the South African government’s failure to arrest Al-Bashir during his visit to an African Union summit in Johannesburg in 2015 highlights the discrepancies between Article 27 and Article 98 (1) of the Rome Statute in relation to diplomatic immunity. It further demonstrates South Africa’s voluntary violations of its legal responsibilities as outlined by the Rome Statute in favour of complying with the African Union’s policy of non-cooperation, which provides support for the contention that African State frustrations towards the International Criminal Court’s jurisdiction are not justified.
As illustrated by Article 27 of the Rome Statute, there is an ‘absolute prohibition on immunities for crimes falling within the jurisdiction of the ICC at the international level’ (Bekou and Shah, 2006, p.513). South Africa is also a State Party to the Rome Statute and therefore falls under the jurisdiction of the International Criminal Court. Hence some scholars argue that the removal of diplomatic immunity for perpetrators of mass atrocities is also mandatory at the national level. From this, it is evident that there is a comprehensive legal basis obligating the South African government to arrest Al-Bashir. Yet upon examination of Article 98 (1) of the Rome Statute, it can be argued that the removal of diplomatic immunity from a head of State such as Al-Bashir violates other key principles of international law, including territorial sovereignty and non-interference, producing a ‘scenario of forced regime change by one country on another’ in the words of South Africa’s Masutha (Feldman, 2016). Article 98 (1) states that
‘the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity’ (International Criminal Court, 2011, p.69).
That said, according to scholars such as Van der Vyver (2015, p.574), ‘the obligation of non-party states to execute the arrest warrant of President Al Bashir should rest with Security Council, acting under its Chapter VII powers, which has instructed all states and non-party-states included’. From this perspective, it can be contended that the ultimate authority and legitimacy of State Parties legal obligations take precedence, delegitimising African state frustrations’ regarding the diplomatic immunity of Heads of State such as Al-Bashir.
The obligations of non-state party co-operation within the Rome Statute further highlight weaknesses regarding African state frustrations concerning the jurisdiction of the International Criminal Court in its relationship with the United Nations Security Council. On one hand, contentions regarding the obligations of non-state parties, specifically in situations where they have been referred to by the United Nations Security Council to co-operate with the Court, have often been manipulated by African states, as in the case of Al-Bashir, to justify and legitimise such frustrations. Firstly, Bekou and Shah (2006, p.541) assert that as ‘Sudan is not a State Party to the Rome Statute, there is no obligation for the state to fulfil requests for cooperation from the Court’. However, due to the referral mechanism used in the case to the Prosecutor of the International Criminal Court through U.N. Security Council Resolution 1593 under Chapter VII of the U.N. Charter, scholars such as Schabas (2011, p.418) draw attention to Article 12 of the Rome Statute which ‘opens up the possibility for the Court to exercise jurisdiction if a matter is referred to it by the Security Council’. This obligates Sudan as a non-state party to cooperate with the Court by placing it under the same jurisdictional obligations as existing State Parties of the International Criminal Court. However, it can be contended that a closer examination of the duties entailed in the resolution reveal a degree of ambiguity. As stated in Paragraph 2 of the resolution, ‘Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ (United Nations Security Council, 2005). Additionally, the resolution ‘urges all States and concerned regional and other international organizations to cooperate fully’ (United Nations Security Council, 2005).
Taking this into account, it can be argued that the wording of the resolution merely encourages states to cooperate with the Court but does not necessarily compel them to do so. This exhibits weakness in the Court’s power of enforcement of state co-operation for the successful resolution of cases. However, when considering the votes in favour of the resolution by African states that were members of the Security Council at the time, it can be argued that the majority were supportive of the resolution. Both Benin and the United Republic of Tanzania voted in favour of the resolution, with Algeria abstaining. Although Algeria’s abstention stands contrary to African states’ support for the resolution, it appears principally politically driven, favouring alternative prosecution options to be determined by the African Union. In contrast, Benin refers to the ‘Ezulwini Consensus of 8 March 2005 in which the AU recognizes the right of the UNSC to protect a population when its government cannot or will not do so’ (Mutton, 2015) in its defence of the International Criminal Court’s decision following the U.N. Security Council resolution vote. Benin’s stance not only highlights the legal obligation of African states’ to act in accordance with the U.N. Security Council in this case but also affirms African states’ collective recognition of the International Criminal Court’s jurisdiction over Sudan.
At the time that the arrest warrant against Al-Bashir was issued in Sudan, African states requested for the arrest warrant against Al-Bashir to be deferred. According to scholars such as Oette (2010, p.348) this was due to concerns regarding the arrest warrant’s impact on the peace process being mediated by the African Union and on Sudan’s political stability in accordance with Article 16 of the Rome Statute. Yet the rejection of the deferral request by the United Nations Security Council triggered notable frustrations from African states, who turned to label the International Court as a ‘neo-colonial Court’ (Wegner, 2015, p.297) used as a tool to impose Western imperialism, as well as an institution that practices double standards regarding its relationship with the United Nations Security Council.
Although examples such as the adoption of Security Council Resolution 1422 following Article 16 of the Rome Statute to grant immunity for U.S. soldiers in Bosnia and Herzegovina (Heyder, 2006, p.657) legitimate such frustrations, when examining the conflict between the pursuit of retributive justice in the attainment of peace in the Court’s prosecution of Al-Bashir juxtaposed with the structural limitations of the Court, such frustrations are not entirely justified. As Bensouda has pointed out, the ‘ICC is a judicial institution and cannot take into consideration the interests of peace’ (Buchanan, 2015). Thus, the United Nations Security Council’s decision to avoid accommodating political considerations in its decision to reject the deferral request is arguably valid in order to avoid the politicisation of justice, thereby safeguarding the legitimacy of the Court. However, as the case remains deadlocked at the Pre-Trial stage, although African State frustrations’ in general may have been unjustified, their implications on State cooperation appear to have had a profound, delegitimising effect on achieving progress within the case.
To conclude, over the course of this essay, the justification of various African states’ frustrations regarding the functionality and objectives of the International Criminal Court, in addition to frustrations that have arisen as a result of the Court’s interaction with international political organisations including the United Nations Security Council and the African Union, have been analysed. Whilst the first section does, to an extent, concur with frustrations concerning the International Criminal Court’s exclusive selection of cases within Africa, it also highlights the progress of the Court, which has begun to expand preliminary examinations and investigations into other continents. The second section of the essay focuses on the case of Omar Al-Bashir. Despite State Parties’ entailed obligations within the Rome Statute, this section illustrates that frustrations regarding sovereign immunity and universal jurisdiction are prevalent. This is due to African states’ conflicted and often politicised interpretations of these concepts, despite on the whole being juridically unjustified, which has provided impetus to a lack of State Party cooperation.
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