Is the ICC a Colonial Tool?

by Kevin Jon Heller

In his new book Saviors and Survivors: Darfur, Politics, and the War on Terror, Mahmood Mamdani claims that, “in its present form, the call for justice is really a slogan that masks a big power agenda to recolonize Africa.”  There is more than a grain of truth to that; I think my friend Tony Anghie’s seminal work Imperialism, Sovereignty, and the Making of International Law should be required reading not only for all students of international law, but for all law students period.  That said, I find claims like Mamdani’s to be woefully overbroad — and ultimately counterproductive, because they delegitimize all attempts to do justice in Africa, no matter by whom, against whom, or for what.

Consider the International Criminal Court.  I have been extremely critical of the ICC’s exclusive focus on Africa, both in my published work and in lectures — including one I gave at the ICC.  But I think it is completely absurd to claim that the ICC’s regrettable focus on Africa somehow reflects racism or “masks a big power agenda to recolonize Africa.”  The ICC has many flaws, but being a puppet of the big powers isn’t one of them.  Three of the permanent members of the Security Council are not members of the Court: the US, Russia, and China.  And of the Court’s 108 members, approximately 65 are from the Global South,16 are from Eastern Europe, and only 23 are from Western Europe or North America (and that includes such traditional imperialist powers like San Marino, Andorra, Ireland, and Malta).

That is a remarkable degree of geographic diversity — and it is reflected in the diversity of the Court’s personnel:

Presidency
Judge Sang-Hyun Song, President (Republic of Korea)
Judge Fatoumata Dembele Diarra, First Vice-President (Mali)
Judge Hans-Peter Kaul, Second Vice-President (Germany)

Judicial Divisions
Elizabeth Odio Benito (Costa Rica)
Akua Kuenyehia (Ghana)
Erkki Kourula (Finland)
Anita Ušacka (Latvia)
Sir Adrian Fulford (United Kingdom)
Sylvia Steiner (Brazil)
Ekaterina Trendafilova (Bulgaria)
Daniel David Ntanda Nsereko (Uganda)
Fumiko Saiga (Japan)
Bruno Cotte (France)
Joyce Aluoch (Kenya)
Sanji Mmasenono Monogeng (Botswana)
Christine van den Wyngaert (Belgium)
Cuno Tarfusser (Italy)
René Blattman (Bolivia)

OTP
Luis Moreno-Ocampo, Prosecutor (Argentina)
Fatou Bensouda, Deputy Prosecutor (The Gambia)

Not exactly a big-power lineup.  Indeed, it takes one hand to count the number of colonial powers represented among the Court’s leadership.

To be sure, neither the geographic nor individual diversity of the Court guarantees that it will not serve the interests of the big powers.  The structural interests of international organizations all too often trump the personal interests of their members.  But I think the Court’s diversity problematizes claims like “in its present form, the call for justice is really a slogan that masks a big power agenda to recolonize Africa.”  At the very least, it would seem to obligate those who make such overbroad claims to explain why, despite the fact that it is very much a global project, the ICC is nothing more than a colonial tool.

http://opiniojuris.org/2009/04/14/7570/

2 Responses

  1. I agree, Kevin, and would add that Pres. Al Bashir denounced the ICC as a “white man’s tribunal” even though the 3-judge Pre-Trial Chamber issuing the arrest warrant had no men, and the Presiding Judge was an African woman.

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