The Re-branding of the International Criminal Court (and Why African States Are Not Falling For It)

[Christine Schwobel-Patel is Senior Lecturer and co-Director of the Critical Approaches to International Criminal Law research cluster at the University of Liverpool.]

The International Criminal Court in The Hague, has been making the headlines in quick succession. In September it became evident that it is changing course, moving away from (protracted and politically sensitive) trials of heads of state and rebel leaders for physical injury and instead focusing on cultural and environmental crimes. In October, several African states, including South Africa, have dramatically announced that they are withdrawing from the Court. Although the changing of priorities appears to be diversifying the prosecution of grave crimes, the African states withdrawing from the Court are most likely under no illusions of the neo-colonial flavour of the ICC dissipating. In fact, it looks as though the re-brand of the ICC is likely to be a move which further stigmatises the global South while protecting the interests of the military and economic powers of the global North.

The failing of the brand

When the Rome Statute was signed in 1998 after negotiations between state delegates and civil society organisations, there was a sense of euphoria about the establishment of an International Criminal Court. Footage of diplomats with bouncy 90s hairstyles forgetting themselves with rhythmic clapping and the exchanging of teary embraces is a firmly entrenched imagery of international criminal justice. When, in 2002, the new court in The Hague opened its doors, then-United Nations secretary-general Kofi Annan, announced exuberantly that this was ‘a giant step forward in the march towards human rights and the rule of law’. The first Prosecutor of the Court, Luis Moreno-Ocampo, made sure that the ICC was never far from the public eye, even if there were no trials occupying the new courtrooms. He gave press conferences, contributed to institutional videos, gave guest talks, spoke to celebrities, and made appearances in several documentaries. The promise of the Court got loftier and loftier.

In a way, the ICC was always going to be an institution which thrives more on image than on concrete outcomes: Its promises were simply too ambitious. It proclaimed to end impunity for those most responsible for crimes that shock the conscience of mankind. On its website, it declares itself to be concerned with the gravest crimes of concern to the international community. Its President recently proclaimed that it has ‘become an integral part of the international system for promoting the rule of law, human rights, peace and security’.

However, with a meagre four completed trials since its opening 14 years ago, with eye watering budgets and the move into a new, bigger, better, budget-busting building, annual budgets in the hundreds of millions, and the discontent of its greatest ally – the African continent (all current charges are against individuals from the African continent), there was some salesmanship to be done for the ICC.

In light of its focus on Africa, there have been long-standing demands to try former US-President George W. Bush and former British Prime Minister Tony Blair in The Hague for war crimes.

Then there is the fact that observers of the ICC’s practices are becoming tired of the constant reference to the Court’s youth; with well over a decade of activity, the ICC is well and truly growing out of its baby steps.

Things were certainly looking grim for the Court in May 2016 when, at his inauguration ceremony, Ugandan President Museveni described the ICC as ‘a bunch of useless people’. Not only did this sting because Uganda was the first state to refer its own situation to the ICC, meaning that the first arrest warrants issued finally provided the court with its first cases; it was also an act of defiance to the Western diplomatic corps present because Sudanese President Omar al-Bashir, who has been issued with an arrest warrant by the ICC, was also in attendance.

The outspoken discontent about the ICC from African states has now, in mid October, come to a head with South Africa having given notice of withdrawal, Burundi and Gambia also announcing their decision to withdraw. Other African member states will no doubt follow.

Re-branding and its promises

One might wonder why this comes so shortly after the ICC made clear that it was going through what the marketing world would call a re-brand. After much-lamented drawn out (and therefore costly) trials, the ICC surprised observers with an exceedingly short trial this year: Opening on 22 August 2016 with an admission of guilt by the defendant and delivering its judgment on 27 September 2016, the ICC saw its first trial concerning the intentional destruction of cultural, religious and historic monuments. Ahmad Al-Faqi Al-Mahdi, a mid-level militiaman, pleaded guilty to the destruction of mausoleums in Timbuktu, Mali.

Then, in September 2016, the Chief Prosecutor Fatou Bensouda published a policy paper, which stated its new priorities for case selection, namely a ‘particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.’ Emphasis was specifically placed on land-grabbing. This new interest in environmental crimes has generally been received positively. For, although it is impossible for the ICC to do justice to the environmental harms caused, it is necessary for a high-profile institution such as the ICC to point the finger. With these cases, the ICC is not only re-branding its priorities, it is also clearly embracing its symbolic function (discussed here and here).

Rather than going after leaders of governments or rebel groups (who make a claim to governing) for crimes of genocide, ethnic cleansing, murder, rape, torture, enslavement and the like, the ICC is instead moving into the prosecution of non-physical violence, mid-level perpetrators, and gestures against corporate power. In this context it is significant that the Office of the Prosecutor decided to charge Al-Mahdi with the crime of the destruction of cultural heritage instead of the possible alternative case of murder and rape committed during The Northern Mali Conflict. With this, the ICC is aiming to send a message to terrorist groups such as ISIS. The destruction of cultural heritage has, of course, been one of the prime Islamist State terror tactics. And with its change of focus to environmental crimes such as land-grabbing, it is seemingly sending a message to private businesses and government officials who have allocated land to these businesses. This is, then, a turn to explicit symbolism: It is impossible to try ISIS for its crimes because the Islamic State is not a recognised state under international law; and it is impossible to criminalise all behaviour leading to environmental harms.

Not falling for the re-brand

However, this seeming rebrand of the ICC is not only to be understood as a welcome response to its critics and a welcome admission of its symbolic nature; it could also be an indication of a further bloating of the ICC’s staff, greater narcissism, and a continued sycophantism to Western economic and military powers.

The ICC has a history of a type of land-grabbing itself, concerning itself with what it deems are the current injustices of the world. From war crimes to terrorism to aggression, it has already swallowed large parts of other disciplines, technical discussions, and humanitarian concerns. It is therefore not surprising that the ICC claimed it will not be formally extending its jurisdiction; but that instead it would assess existing offences, such as the crime against humanity, in a broader context. For all the value to a naming and shaming on an international stage, this could be troubling. For where does the jurisdiction of the court then end? What crime is to be excluded from a list of crimes against humanity? How many experts need to be hired to mirror its growing self-proclaimed expertise?

But the bloating of the court’s jurisdiction is not the only concern. Of much greater concern is whether the ICC is capable of turning attention to the pressing issues of injustice in the global South while daring to enter the terrain of the complicity of the global North in its condition. And, unsurprisingly, the rebrand is a means by which to respond to critics while at the same time maintaining the status quo.

While cultural heritage across the world (and not just Western heritage) is at stake, ISIS is not only violently imposing its particular extremist Islamist ideology, it is of course also challenging the imperialist interventions (cultural and military) of the Western economic powers. The symbolism behind a criminalisation of the destruction of cultural heritage in the international sphere is then also an insistence on the protection of the neo-colonial practices of Western super-powers. For although international criminal law has a symbolic capacity to stigmatise violent behaviour, it does not have the capacity to explain the root causes of this behaviour. In other words, while extremists may be criminalised, there is no means to draw attention to questions of how these individuals became extremists, what motivates them, and the conditions which are allowing for them to act. International criminal law therefore remains blind to colonial histories and resource-motivated interventions which have caused chains of exploitation and attendant grievances.

The same concern about the status quo applies to environmental crimes, in particular land-grabbing. Various campaign groups have said that the new priority on land-grabbing would hold corporate executives to account for associated consequences of evictions, malnutrition, and environmental destruction. Under the Rome Statute regime, corporations themselves cannot be held criminally liable, and so far no corporate executives have been held to account. There is precedent for holding corporate managers to account in international criminal law: Prosecutor v Musema at the International Criminal Tribunal for Rwanda was a case against a tea factory director; the Nuremberg trials against Nazi industrialists are further precedents. However, these are chains of accountability in regard to exercising control over employees, and using concentration camp inmates as slave workers respectively in wartime. In comments, it is hoped that the Court’s new priorities may make executives accountable for environmental crimes committed in peacetime. In peacetime, however, there would likely be heightened murkiness in the relationships between contractors and sub-contractors involved; a cooperation of the relevant corporations would also be highly unlikely. Ultimately, it is much more likely that a land-grabbing case would instead criminalise the national government officials allocating the land to businesses. This focus on governmental action would again place the focus on criminality in the global South (which is most seriously affected by land-grabbing).

Maintaining the status quo

Despite the change of course of the ICC, the message under these conditions continues to be that international crimes are committed in the global South and are prosecuted in the global North. The global South is, in this understanding, the recipient of global justice – because it is also the place of global injustice – and the global North is the sponsor of global justice. And this remains the crux of the global justice brand.