ICC’s Target: Reviewing Allegations of Bias Against Africa

The relationship between the International Criminal Court (“ICC”) and Africa is one that has existed ever since the idea of such a forum was first floated. At the meeting1 of the Organization for African Unity Council of Ministers, a decision was taken to support all member states in joining the process of the formulation of the Rome Statute. Representations made by the representatives of Africa at the plenary session in Rome in 1998 made it apparent that the leaders of Africa were in support of the formation of a forum that would be unbiased in the roles fulfilled by its prosecutors and the judgments delivered by the Court. The African representatives also reaffirmed their belief in the role of the Court in promoting equality of states and extending the principles of international law uniformly, especially expressed through the representative of South Africa who was representing 16 members from the southern part of the continent. The noble ideals put forth by the representatives were undoubtedly a result of the long and tragic colonial history of the continent. The African countries were some of the last to be able to gain independence from their colonial overlords. The scars of the atrocities committed against them and the long drawn history of persecution brought them to Rome hoping for a better tomorrow. The fears of the representatives of the African community were not unfounded, as the activities of the ICC over the past two decades have sparked accusations of an African bias within the ICC. But are these accusations the reality, or a biased interpretation of the activities of the Court? 

The ICC’s Fixation with Africa

The ICC was conceived as a global justice forum which would deter the commission of heinous crimes across the globe. However, it has recently faced severe criticism in its short history of foregoing the role of acting as a global forum to one restricted in its focus: to the continent of Africa. In the entire history of the functioning of the ICC, not a single case has been tried at the court which has not prosecuted a citizen of an African nation

Criticism for the ICC’s actions has thus led to the accusation of an ‘African bias’. This flows from the alleged lack of investigation in cases involving the big powers like the United States, United Kingdom etc. The western world has been actively involved in multiple interventions across the globe most prominently in Afghanistan and Iraq. But in recent years the situation in Iraq had been re-investigated in light of new evidence against the United Kingdom, but ultimately dropped by the Office. The Appeals Chamber has also authorized the Office of the Prosecutor to open an investigation into Afghanistan

A line of reasoning adopted by critics about this supposed fixation of the ICC on Africa, is of the role of the Office of the Prosecutor, as under Article 15 and Article 54 of the Rome Statute. William Schabas laid out a simple reason, that the first ICC prosecutor, Jose Luis Moreno Ocampo avoided the situations in the Gaza Strip, Afghanistan and even Columbia to not cross paths with the world powers. Events in the public eye have also been shunned by the ICC, for instance: In 2012, US Army Staff Sergeant Robert Bales massacred 16 civilians in Afghanistan, including children. However, the ICC never intervened even though the situation was an active armed conflict, and Bales was shipped overnight back to the United States to face punishment in domestic courts. The ICC did look at the possibility of cases in Afghanistan, Iraq, Georgia, Palestine and Columbia but to no avail. In the case of Prosecutor v. Taylor, before the Special Court for Sierra Leone, lead attorney for the defendant Courtney Griffiths pointed out the neo-colonial approach of the ICC and further went on to target the European influence in the court. 

The situation vis-à-vis Africa and the ICC reached rock bottom when the ICC, referred by the UN Security Council (“UNSC”), released a warrant for the arrest of Sudanese leader Al-Bashir. The ICC used the argument of ‘interests of justice’ to reject the investigation in Afghanistan in the Pre-Trial Chamber. However, the ICC ignored the importance of Al-Bashir to the peace process in Sudan. The ICC and the African Union came to loggerheads and the AU Assembly declared that they would not cooperate with the ICC warrant. With regard to the UNSC referrals, it does appear puzzling that three of the five permanent members of the UNSC, China, USA and Russia are not parties to the Rome Statute, and yet play a key role in referral of cases to the ICC. It is the influence of these global powers that acts as a sword hanging on the shoulder of the Prosecutor, as was very well portrayed by the revocation of the visa of the Prosecutor by the United States when the investigation in Afghanistan was opened. These referrals have been a key source of the opening of investigations, as will be seen in the subsequent section. The entire idea of equality propagated by the African states at the Rome plenary thus falls flat. 

The assessment of such events and the accusations levelled at the ICC do create a sentiment of there being a prima facie bias against the African continent. However, is the situation so fundamentally clear?

A Compulsion to Act and the Absence of Bias

The level of allegations thrown at the ICC with regard to its approach with Africa does lead to a notion of discrimination at the hands of the ICC. While the criticism is valid to an extent, there is an opposing view in support of the actions of the ICC. In essence, the opposite view says that the investigations by the ICC are the result of actual situations referred by countries, or those referred by the UNSC itself. 

A major factor in the inability of the ICC to look into matters outside the continent of America is the rejection of the jurisdiction of the ICC. Out of the 123 member states of the ICC, 34 hail from Africa itself. But the problem lies in the fact that the 89 states outside of Africa are not inclusive of various conflict zones around the world where the ICC could actually have initiated investigations. Further, it is necessary to analyse how the cases in Africa reached the ICC, and then opine on whether the claims of the bias actually hold any merit.

The ICC can exercise jurisdiction in three scenarios: via referral from the UNSC under Article 13(b); or via the referral of the state itself under Article 14; or exercising its right to start investigations under Article 15. The situations in the Central African Republic, Democratic Republic of Congo, Mali and Uganda were all referred to the ICC by these states themselves. The Libyan and Sudanese crises were referred to the ICC by the UNSC and even though the situation in the Ivory Coast was an investigation initiated by the Prosecutor, there was an implied state referral as the Ivory Coast accepted the jurisdiction of the ICC on the onset of a civil war. Even the situation in Kenya was undertaken by the ICC after failed attempts of the domestic courts and even Kofi Annan agreed to the need for the ICC to step in due to a dispute over the mechanisms between the opposing parties within Kenya. Furthermore, while there has been a clamour over the African fixation in the ICC, these states have referred the situations and submitted to the jurisdiction of the ICC. Another indicator of the willingness of these African states to submit to the ICC is a sole challenge of jurisdiction, by Libya. 

Therefore, only two situations fall under the scanner for possible bias, those of Libya and Sudan. However, the role of the ICC in these cases was to take up the referral of the UNSC. As seen previously, three of the five permanent members of the UNSC are not a part of the ICC yet play an active role in determining the fate of other countries. The inherent problem then perhaps lies within the UNSC and not the ICC. The lack of an African representative among the permanent members of the UNSC adds to the overall problem, as the remnant of the possible investigations around the world almost always involve one of the permanent members directly, ranging from Iraq to Afghanistan to Syria.

The ICC does currently have ongoing preliminary investigations in various parts of the world including new investigations in Africa. Hence, it would be antithetical to the purpose of the ICC to not continue to prosecute crimes in Africa, due to the sole reason of there not being a more geographically diverse caseload in the ICC.

Conclusion

The ICC has come a long way in ensuring justice to the victims of serious offences all over the world and in maintaining peace at the global level. The argument based on a fixation with Africa relies on the simple statistics of ICC cases which almost entirely consist of African accused. The antithesis to this argument is based on the analysis of the manner in which these cases were opened and continue to be opened. However, neither of these arguments holds sufficient ground to ratify either end of the debate. While heavy criticism of the ICC is legitimate, its significance as harbinger of justice to victims and its role in maintenance of peace cannot be denied. The debate on its contemporary germaneness will perhaps be clearer with the future conduct of the Office of the Prosecutor and that of the Court itself. Such conduct would beg the continuity of the investigations in Afghanistan and Iraq that directly concern the US and UK, and other prospective investigations undertaken by the Office of the Prosecutor. 

1 OAU 67th Ordinary Session of the Council of Ministers, CM/Dec.399 (LXVII) (25-28 February 1998).


Yagnesh Sharma and Utsav Saxena are currently pursuing their B.A LL.B from Maharashtra National Law University, Mumbai.


Image: NYTimes and AP (modified by Mahima Balaji)

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