Mary Abigail Chapin
Dr. Meredieth DeBoom
The International Criminal Court (ICC) formally came into force on July 1, 2002, becoming the only treaty-based permanent court to prosecute perpetrators of the most severe crimes. The court was founded primarily to prosecute perpetrators of genocide, crimes against humanity (CAH), and war crimes (with the addition of crimes of aggression in the summer of 2018) no matter the public stature of the individual accused. This was a major step by the international community in the global fight against impunity. In no case was this more clearly shown than in the court’s issuing of arrest warrants for the then sitting president of Sudan, Omar Hassan Ahmad Al Bashir, in 2009. The decision was met with criticism from many fronts, notably the assembly of African states, the African Union (AU), and its member states. Other criticisms vary from not taking enough action to taking too much action in other situations. This project first examines the actions that the court has taken and the language of the treaty itself to determine if there is bias present in the workings of the court toward sub-Saharan Africa. Secondarily, I will examine potential reform efforts and discuss their possible success and make suggestions for further research.
In July of 2002, the inauguration of the International Criminal Court (ICC) redefined the landscape of international justice, by establishing a permanent institutional body that would have the authority and capacity to prosecute the world’s worst criminals. There had long been an appetite for the creation of an international criminal court, especially following the atrocities of World War II which included a gross degradation of human life and dignity (Austin and Thieme, 2016). These degradations were met with the establishment of an ad-hoc tribunal that became known as the Nuremberg Trials. However, it was the analysis of the International Community that further atrocities could be avoided if a court that had the authority to prosecute political and military leaders was established. Establishing a permanent body would go beyond the mission of the ad hoc tribunals, such as Nuremberg, and hopefully mark the beginning of a new era that would be defined by peace and accountability (Cavallaro and O'Connell, 2020). The impact that the creation of a court of this magnitude could have on developing countries could be monumental and provide the necessary pre-conditions of peace and accountability to strengthen democratic institutions. However, the lofty goals espoused by proponents of the ICC have been met in recent times with accusations of politicization, bias against African states, as well as threats of withdrawal from member states. These criticisms, if substantiated, could undermine the entire bedrock of the International Criminal Court and the pillars of justice and hope that it stands for. This paper will investigate further the waning support of African states towards the ICC as well as take an in-depth look at publications in Kenyan media outlets during the time in which the country was under investigation by the ICC to aid in determining the preferences of Kenyan citizens in their relationship with the ICC. This information could be of extreme benefit to the international community in working to reform the international criminal justice system to ensure equitable access and treatment of all citizens of the world.
International Human Rights Protection Before the International Criminal Court
Prior to 2002, the horrific abuses of power that led to the violation of human dignity and life were dealt with by establishing ad-hoc criminal tribunals. This concept was first established in the wake of World War II with the formation of the Nuremberg Trials. This tribunal was established by the allied victors, aiming to punish the individuals who were responsible for organizing and committing atrocities in Axis territories. Officially named the International Military Tribunal (IMT) and its counterpart the International Criminal Tribunal for the Far East (IMTFE) (established to prosecute war criminals in the Pacific Arena) were established in 1945 and 1946 respectively and had the authority and jurisdiction to prosecute “war criminals of the European Axis countries” and the “Far Eastern war criminals” (United Nations 1945). These trials witnessed, for the first time, an individual person being held responsible for the violation of human rights which can be seen by the inclusion in both charters a statement that the official position of the defendant would “not be considered as freeing them from responsibility or mitigating punishment” (United Nations 1945). Additionally, in these trials concepts that now seem common knowledge, such as the definition of a “war crime” were officially codified in international law. Despite the massive step forward that these tribunals represented for the protection of human rights, criticisms still arose.
The establishment of these tribunals set an important precedent in the prosecution of war criminals that would be invoked later following large-scale atrocities in Rwanda and the former Yugoslavia. In 1993, the UN established the International Criminal Tribunal for the former Yugoslavia with the mandate of addressing the war crimes that took place in the Balkans in the early 1990s. Later, the UN established the International Criminal Tribunal for Rwanda (ICTR) in 1995 following the genocide in mid-1994. Both of these tribunals show the desire of the international community to combat impunity by holding individuals accountable for their heinous crimes, however, they fall short of being able to deter future acts of violence due to their inability to prosecute crimes that occur outside of their relatively small geographic and temporal jurisdiction. Without establishing a permanent solution, powerful people would continue to commit heinous crimes with impunity.
The international community, recognizing that a permanent body was necessary, began working to create what would become the International Criminal Court. In 1947, following the conclusion of the Nuremberg Trials, the United Nations General Assembly (UNGA) adopted resolution 177 (II) which directed the International Law Commission to draft a “Code of Offenses Against the Peace and Security of Mankind” (Cassese 1946). The drafting of the Code of Offenses continued over the following decades with the final draft not being presented to the UNGA until 1994 (Ssekandi and Tesfay 2017, 78). Once receiving the draft, the UNGA established the Preparatory Committee which met several times to revise and finalize the draft (Clarke 2014, 56). The final draft was then presented in Rome at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court where the Rome Treaty was signed and the International Criminal Court became a reality in July of 1998 and would go into effect on July 1, 2002, after being ratified by at least 60 UN member states (United Nations 2002).
Limits of the International Criminal Court
The ICC is by no means an all-powerful institution. Checks on the court’s authority exist within the structure and procedures of the court itself. For example, the court only has jurisdiction over instances of crimes that were perpetrated after July 1, 2002. Another example is that the court only has jurisdiction over the crimes that are defined within its statute which are: Genocide, War Crimes, Crimes Against Humanity, and Crimes of Aggression. Early drafts of the Code of Offenses included additional crimes including colonial domination and apartheid, however, during the revision process these crimes and others were omitted in order to increase the likely hood that the Statute would receive universal acceptance. Additionally, it was decided that in order to make the court more effective in the future, the Code should include only crimes that so egregiously victimized humankind and were not too controversial or widespread (Clarke 2016, 329). However, while limiting the scope of the court may have been beneficial for the purposes of gaining initial support, this limiting factor of the court has severely diminished the effectiveness that the court can have and thereby contributed to undermining the legitimacy of the institution.
Additional criticisms of the Court range from the structure of the Court and the impact that it has on the Court’s ability to carry out justice to allegations of abuse of power and politicization. First and foremost, the Court lacks a crucial mechanism of enforcement. The lack of an enforcement agency working in tandem with the Court means that the Court must rely on the cooperation of member states to carry out vital functions such as serving warrants. Another criticism of the court centers around its relationship with the United Nations Security Council (UNSC) and the authority that the UNSC has in deciding which cases the court investigates. The Rome Statute gives the UNSC the authority to trigger an ICC investigation in any state, even one not a party to the Rome Treaty, such as is the case in Darfur which will be further discussed later, and in doing so critics have claimed that the UNSC abused their authority.
The dominant claim among critics remains that there is a perceived bias against the African continent. This can be seen simply by looking at the number of situations that have fallen under ICC investigation. Of the 14 total investigations that have been opened by the ICC, 10 were in African states. Even the African Union (AU), whose predecessor, the Organization of African States (OAS), was initially one of the Court’s strongest and loudest advocates, has voiced serious concerns regarding this bias in the Court and has gone as far to urge AU member states to stop cooperating with the Court. Many states who are both members of the AU and party to the ICC have abided by the AU and slowed or stopped cooperation with the Court. As mentioned earlier, the Court is reliant on the cooperation of its member states and losing that of a large block of its members has severely diminished the Court’s ability to function especially on the African continent.
Accusations of Bias and Controversial Foundations
While proponents of the critique of bias cite the fact that over half of investigations opened by the ICC have been into African states, however indications that the ICC is a westward leaning institution can be seen even down to the foundations of the Court itself.
Before the creation of the International Criminal Court in 2002, there were years of discussions and negotiations around how the court would appear and operate. In 1991, in its forty-third session, the International Law Commission drafted a Code of Offenses for the future court. The commission soured information from both public and private sources, employing government and Intergovernmental reports, in addition to the advice of NGOs and human rights groups, to determine the crimes that should be under the jurisdiction of any international criminal court. They determined that the following crimes should be punishable under an international criminal court: Threat of aggression or intervention; Colonial domination, other forms of alien domination; Genocide; Apartheid; Systemic or mass violation of human rights; Exceptionally serious war crimes; Recruitment, use, financing, and training of mercenaries; International terrorism; Illicit traffic in narcotic drugs; Willful and severe damage to the environment. However, some of these crimes were dropped in later drafts because of “the strong opposition, criticism, or reservations of certain governments” (Ssekandi and Tesfay 2017, 78). The list was withered down leaving only four crimes in the final draft code of offenses: genocide, crimes against humanity, war crimes, and the crime of aggression.
There have been several justifications for the inclusion of certain crimes and the omission of others. Some argued that for the court to gain the support of all states, it should avoid crimes that were too “controversial or widespread” (Clarke 2016, 328). Others took a more practical approach in their justification, arguing that the goal of instituting an international court system would be to be able to prosecute individual actors for crimes so heinous that they “victimized humankind as a whole” (Clarke 2016, 328). Opponents of the omission of crimes argued that violations such as colonialism, international terrorism, mercenaryism, and apartheid presented a serious threat to the peace and security of all humankind and thus should have been included in the Code of Offenses of the ICC.
The issue of colonialism had other reasons to be omitted. Specifically, colonialism was noted to be a crime known only to history, and therefore, it would be unnecessary for a modern court system to have the crime of colonialism in its Code (Ssekandi and Tesfay 2017, 78). However, according to experts such as a former UN Assistant Secretary-General, considering colonialism to be a crime of the past would be counterproductive to the goal of the court. Colonialism provides the necessary context to be able to understand the world (specifically the developing world/global south) and confront very real and present dangers.
Despite these concerns, the Organization of African Unity (predecessor of the African Union), was one of the Court's most avid supporters. It was African support that allowed for the Rome Treaty to enter effect in July of 2002 after being ratified by the obligatory 60 states, 14 of those states were African. During its 31st session, The African Commission on Human and Peoples’ Rights in May of 2002 called on all states party to the OAU to ratify the Rome Treaty. This support however did not last long.
Controversy arose in March of 2005 when the ICC opened an investigation into Sudan. The situation in Sudan was controversial for several reasons. First, because it was the first time that the UNSC used its power to refer a situation, in a state that was not a party to the Rome Statute, to the ICC after finding that “the situation in Sudan [continued] to constitute a threat to international peace and security” with UNSC resolution 1593. Second, this situation was controversial because it was the first time that a sitting president was wanted by the ICC. Additionally, it was the first time that genocide had been charged by the ICC. In July of 2008 tensions escalated when the Office of the Prosecutor requested that the Pre-Trial Chamber of the ICC issued a warrant of arrest for Al Bashir (Mills 2012, 420). Later that same month, the Peace and Security Council (PSC) of the African Union called on the UNSC to act “in accordance with the provisions of Article 16 of the Rome Statute of the ICC to defer the process initiated by the ICC” (Peace and Security Council of the African Union 2008). The PSC took this step because it was the belief of the council that the execution of these warrants would “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 in Sudan as a whole”. Despite numerous pleas from the PSC that the process is delayed, in March of 2009, the warrants were officially issued (International Criminal Court, n.d.). These warrants were issued for war crimes and crimes against humanity and then later in July of the following year, the ICC issued an additional warrant for the crime of genocide following the discovery of “reasonable grounds to believe [Al Bashir] responsible for three counts of genocide” (International Criminal Court, n.d.).
However, even though the ICC had issued the arrest warrants, they were reliant on the domestic law enforcement capabilities and cooperation of member states to execute the warrant. As previously stated, the ICC itself does not have an enforcement mechanism built into itself. That is to say that there is no police or other law enforcement agency to go out and arrest perpetrators once their warrants have been issued. It was this lack of an enforcement mechanism that allowed Al Bashir to evade arrest for over a decade. It was this reliance on the cooperation of member states that would eventually put too much strain on the relationship between the ICC and African member states, that would culminate in the threats of mass withdrawal from the Rome Treaty.
Backlash and Threats of Withdrawal
Due to the non-cooperation of some African states, such as Kenya, at the behest of the African Union, Al-Bashir was able to evade arrest and would go on to be elected President of Sudan in 2010 and 2015. After multiple pleas by the AU to the USNC to delay the proceedings of the Al-Bashir trial went unanswered, the AU issued additional statements urging their member states to not cooperate with the ICC. In 2012, almost three years after the issuance of the Al Bashir warrants, the AU issued a statement urging that “AU member States shall not cooperate” with the ICC (African Union 2009). Following this urging, several African states, who are party to the ICC, declined to arrest Al-Bashir when he traveled into their territory. Most notably in 2015, South Africa declined to arrest Al-Bashir when he was in the country attending an African Union Summit, citing evidence that “the Court’s founding treaty, the Rome Statute, does not oblige authorities to arrest heads of state of countries that are not members of the court” (Corder 2017).
Multiple sub-Saharan African states notified the ICC that they would be withdrawing from the Rome Treaty in 2016. The controversy surrounding the Darfur investigation fueled thinking that the ICC was not in practice the idealized sanctuary of international justice that it claimed to be and in practice was proving to be just another tool of Western neo-Colonialism that was biased against African states. Bolstering this position, was the finding of an investigation by the Economic, Social, and Cultural Council of the AU (ECOSOCC) (Santiago 2016). In this report, ECOSOCC favored African withdrawal from the Court, citing evidence of bias on the basis of funding sources. The ICC is funded predominantly through the contributions of member states which are determined in the same way that UN contributions are (Felter and Hussain 2022). This translates to larger economies contributing more and as such may be seen in a more favorable light by the court. The other statistic that factored into the recommendation by ECOSOCC was the overrepresentation of African nations on the list of states which have been under investigation by the ICC.
To date, only one state has formally withdrawn from the Rome Treaty and even that could not prohibit the ICC from opening an investigation into that state. In October of 2016, Burundi issued notice to the UN Secretary-General of its intention to withdraw, as is required by Article 127 of the Rome Statute which would allow for the country to formally withdraw in October of 2017. Then a few days before the withdrawal was finalized the pre-trial chamber of judges authorized an investigation to be opened by the Office of the Prosecutor proprio motu (International Criminal Court, n.d.). It is possible that the situation in Burundi may have served as a deterrent to other African states who had threatened to withdraw as it showed that such actions would not likely shield them from ICC investigation and possible prosecution (Omondi 2017).
Final Thoughts and Further Research
In conclusion, I would like to summarize what the research has shown me thus far as well as point out a few key areas where further investigation is warranted. Firstly, I would like to reiterate the fact that African states have been clearly overrepresented in terms of the proportion of ICC investigations that have been opened. At the time of writing, 10 of the 17 total investigations opened by the ICC have been into African states. When looking at that statistic alone, it is easy to conclude that the Court may be biased against African states. However, it is in my opinion that this narrative leaves out one key aspect of the Court: its complementarity.
In examining the earlier statistic again but this time taking into account the fact that the ICC serves as a court of last resort, the obvious question becomes not so much why is the Court targeting African states but rather, what is it about African judicial systems that require justice be sought outside the sovereign borders of a given state? In essence, why are African judicial systems not equipped to handle these cases which is forcing them to be turned over to the ICC? To me, this is the more compelling question, and it is one that is not adequately addressed in the literature.
There are a couple of areas in which more research needs to be done in order to adequately address the allegations and concerns of ICC bias against African states. Seeking to answer questions about the efficacy and legitimacy of domestic African judicial systems will better allow us to answer questions about why so many ICC cases originate in Africa. Hopefully, these answers will provide the necessary insight to see the reform measures that should be implemented to decrease the rate at which this occurs.
Additionally, something that I found to be lacking in the literature was the voice of average African citizens who live in countries that have been directly affected by the ICC. Gaining insight into the opinions and attitudes of the general population will better enable African governments and the International Community at large to be able to implement a policy that will be effective in ensuring the protection of human rights and the end of impunity both in Africa and the world over.
About the Author
Mary Abigail Chapin
My name is Mary Abigail Chapin and I am a senior at the University of South Carolina
with expectations to graduate in December of 2021. I grew up on the south shore of
Massachusetts and came to UofSC to major in International Studies. After my first
semester taking a class on African political-geography, I uncovered a deep fascination
with the continent and decided to declare a minor in African Studies. I began this
project in the Fall of 2019 with hopes of investigating the narrative of a based International
Criminal Court and answering in concrete terms whether there is any validity to these
accusations. While I did not find the concrete answers I was looking for, I did uncover
a passion for international justice in the pursuit of peace, reconciliation, and development.
I would like to sincerely thank my mentor, Dr. Meredith DeBoom, who always encouraged
me to dig deeper and go farther, without her support, this project would not have
been completed and I never would have discovered this passion. It is thanks to her
that I have elected to pursue professionally working in International Law to fight
for the implementation of a more peaceful and just system of defending human rights.
I would also like to thank the Office of Undergraduate Research for the incredible
support they provided to me and allowing me to present my research at Discover UofSC
2021 in addition to the funding provided to me and so many other student researchers.
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