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Torn between political interests and upholding legal responsibilities? A critical examination of African states’ frustrations with the International Criminal Court

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.

 

Bibliography

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Al Jazeera. 2016. Gambia withdraws from International Criminal Court. [Online]. [Accessed 20th May 2017]. Available from: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.

Arbour, L. 2014.The Relationship Between the ICC and the UN Security Council. Global Governance: A Review of Multilateralism and International Organizations. 20(2), pp.195-201.

Bekou, O. and Shah, S. 2006. Realising the Potential of the International Criminal Court: The African Experience. Human Rights Law Review, 6(3), pp.499-544.

Buchanan, R. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/.

Dugard, J. 2013. “Palestine and the International Criminal Court: Institutional Failure or Bias?” Journal of International Criminal Justice. 11(3), pp. 563-570.

Feldman, N. 2016. International Criminal Court is too focused on Africa. [Online]. [Accessed 20th May 2017]. Available from: https://www.bloomberg.com/view/articles/2016-10-25/international-criminal-court-is-too-focused-on-africa.  

Heyder, C. 2006. The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status. Berkeley Journal of International Law, 24 (2), pp. 650-671.

Human Security Centre. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/.

International Criminal Court. 2011. Rome Statute of the International Criminal Court. [Online]. The Hague: International Criminal Court. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.

International Criminal Court. 2016. Report on Preliminary Examination Activities 2016. [Online]. The Hague: International Criminal Court. [Accessed 14th May 2017].  Available from: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf.

Mbaku, J. 2014. International Justice: The International Criminal Court and Africa. [Online]. [No Place]: The Brookings Institute. [Accessed 16th May 2016]. Available from: https://www.brookings.edu/wp-content/uploads/2016/07/03-foresight-international-criminal-court-africa-mbaku-1.pdf.

Mills, K. 2012. “Bashir is Dividing Us”: Africa and the International Criminal Court. Human Rights Quarterly, 34(2), pp.404-447.

Murithi, T. 2012. Africa’s Relations with the ICC: A Need for Reorientation? In: Luckscheiter, J and Mass-Albert, K. eds. A Fractious Relationship: Africa and the International Criminal Court. [Online]. [No place]: Heinrich Böll Foundation Southern Africa 2012. , pp. 4-9. [Accessed 16th May 2016].  Available from: https://www.boell.de/sites/default/files/2012-08-Perspectives_Africa_1_12.pdf.

Mutton, J. 2015. Africa and the ICC: Countering half-truths. [Online]. [Accessed 30th March 2018]. Available from: https://www.dailymaverick.co.za/opinionista/2015-07-13-africa-and-the-icc-countering-half-truths/#.Wr3_4ExuK8B

Oette, L. 2010. Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond. Journal of International Criminal Justice, 8(2), pp.345-364.

Saltzman, Z. 2013. Much Ado About Nothing: Non-Member State Status, Palestine and the International Criminal Court. Journal of International and Comparative Law, 3(2), pp.163-209.

Schabas, W. 2011. An Introduction to the International Criminal Court. 4th. Cambridge: Cambridge University Press.

United Nations Security Council. 2005. Resolution 1593 (2005): Adopted by the Security Council at its 5158th meeting, on 31 March 2005. [Online]. S/RES/1593. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf.

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Van der Vyver. 2015. The Al Bashir debacle. African Human Rights Law Journal, 15(2), pp.559-579.

Van der Wilt, H. 2011. Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States. Journal of International Criminal Justice, 9(5), pp.1043-1066.

Wegner, P. 2015. The International Criminal Court in Ongoing Instrastate Conflicts: Navigating the Peace Justice Divide.[No place] : Cambridge University Press.

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African states’ frustrations with the ICC: justifiable or misdirected and overstated?

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).

 

Conclusion

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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Sexual Violence and the Law of Armed Conflict

By Maria Chiara Parisi

Chiara is a third year student at U.C. Berkeley, School of Law. After graduating in the spring, she hopes to work in public interest or public service law. 

 

“Rape in war is as old as war itself”(Baker, 2016). For centuries, rape and other forms of sexual violence have run rampant during times of armed conflict (see Askin, 1999; Chinkin, 1994; Mitchell, 2005). The consequences of these acts are immense, with effects that last beyond the pain, humiliation, and fear felt at the time of the attack. Sexual violence spreads incurable diseases such as HIV and the trauma severely impacts the mental health of the victims for years following the attack. Loss of virginity and infertility caused by mutilation make victims unmarriageable in certain communities. Unwanted children are often left behind, serving as a constant reminder of the brutal destruction that disrupted the mother’s life. Mass rape has even been used as a form of ethnic cleansing, with the objective of changing the ethnic makeup of a population by killing all of the males in a community and forcing women to bear children of “the enemy”. Further, once the attacks end, the needs of survivors post-conflict, including medical care, psychological support, and economic assistance, are seldom met (UN, 2014).

Although there are no precise statistics on wartime sexual violence due to inaccurate reporting and the unwillingness of victims to come forward, there is no doubt that sexual violence rates during times of war are shockingly high (Gottschall, 2004, p.130). Just in the 20th century, countries with reports of mass rapes include Belgium, Russia, Japan, Italy, Korea, China, the Philippines, Germany, Afghanistan, Algeria, Argentina, Bangladesh, Brazil, Burma, Bosnia, Cambodia, Congo, Croatia, Cyprus, East Timor, El Salvador, Guatemala, Haiti, India, Indonesia, Kuwait, Kosovo, Liberia, Mozambique, Nicaragua, Peru, Pakistan, Rwanda, Serbia, Sierra Leone, Somalia, Turkey, Uganda, Vietnam, Zaire, and Zimbabwe (Gottschall, 2004, p.130). Continue reading

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