The Sum of Four Fears: African States and the International Criminal Court in Retrospect–Part I

Max du Plessis is Senior Counsel in South Africa, an Associate Fellow at Chatham House, a Senior Researcher at the Institute for Security Studies, an Associate Tenant at Doughty Street Chambers and an Honorary Research Fellow, University of KwaZulu-Natal. Christopher Gevers is a Lecturer in the School of Law at University of KwaZulu-Natal.

This is the first of two blog posts on the role of the ICC in Africa, and the very serious need for the Court – at this time of reflection – to consider the concerns raised by African states, concerns which were raised at Rome in 1998, and which have materialized for the worse with each passing year since then. The views expressed in this article are those of the authors in their personal capacity.

Introduction

In writing about Africa and the International Criminal Court (ICC) over the past two decades we have written about ‘stormy years’, ‘being caught between Scylla and Charybdis’, and on more than one occasion an early draft has had the phrase ‘The Odyssey continues’ lurking somewhere. Recently, employing Homer’s Epic became more difficult, as the Odyssey appeared to be headed towards a precipitous and premature end when African states started making plans for their collective withdrawal from the Rome Statute. While threats of a mass withdrawal have simmered – in the end only Burundi followed through (South Africa demurred) – there seems to be little hope of a rapprochement. Recent developments in the Afghanistan situation suggest another storm might be on the horizon. And after the ICC Appeal Chamber’s decision on immunities, more lightning has been added to the elements. Both the Afghanistan and immunities decisions have already attracted much attention on the Blogosphere, and broader concerns about the health of the ICC have been raised, most notably by no less than the four previous Presidents of the ASP (see here).

Our focus is slightly different. We offer this comment with the intention of neither burying nor praising the ICC, but in order to reflect critically on the role that the Court and at times its supporters have played in the demise of its once promising relationship with African states, and to consider whether the story might have turned out differently (or might yet still). While much of the blame is currently placed solely at the feet of African states and their hostility towards particular investigations involving Heads of State, we aim to show that (1) the fractures within this relationship have come about as the result of the actions (and inactions) of the ICC, and its supporters, and (2) that, as far as African states’ complaints are concerned, these were general concerns they had about the ICC that were present in outline at its founding in 1998 – and which have come to be realized, for the worse, with each year passing.

The current situation might thus be characterized both as African states falling out with the ICC and as the ICC falling in to patterns of behavior that African states raised legitimate concerns about, and thus sought to guard against, at Rome in 1998.

Rome revisited

Much has been written about African states ‘astonishing enthusiasm’ for, and participation in, the establishment of the ICC in Rome in 1998, and the fact that the first signatory to the Rome Statute was Senegal. Less attention, however, has been paid to the conditions African states placed on their support for the ICC’s establishment or, phrased differently, the understandings under which they did so. Re-reading what we might optimistically call African states’ hopes in 1998, or pessimistically call their fears, with not a small measure of hindsight, illuminates how the relationship unfolded, or why it began to fall apart. While they varied in emphasis, four ‘concerns’ emerged from the collective and individual statements of African states to the plenary at Rome in 1998.  

These four concerns were succinctly set out by South Africa’s delegate, on behalf of the sixteen-member ‘Southern African Development Community’, on the opening day of the Rome Conference; who told the assembled diplomats, UN officials and NGO representatives that African states desired that:

• ‘[T]he Prosecutor should be independent and have authority to initiate investigations and prosecutions on his or her own initiative without interference from States or the Security Council, subject to appropriate judicial scrutiny’, and ‘[t]he independence of the Court must not be prejudiced by political considerations’ [Concern 1];

• ‘[T]he Court should contribute to furthering the integrity of States generally, as well as the equality of States within the general principles of international law’ [Concern 2];

• ‘[The Court]… should be an effective complement to national criminal justice systems’ and ‘should also have competence in the event of the inability, unwillingness or unavailability of national criminal justice systems to prosecute those responsible for grave crimes under the Statute, while respecting the complementary nature of its relationship with such national systems’[Concern 3]; and,

• ‘The Court [is] a necessary element for peace and security in the world…’ and ‘[its] establishment … would not only strengthen the arsenal of measure to combat gross human rights gross human rights violations but would ultimately contribute to the attainment of international peace’[Concern 4].

In these four concerns we can see the seeds of their disillusionment with the ICC today. In 1998 these fears themselves already had deep historical roots, based on African states’ less than successful engagements with international courts (i.e. the ICJ) and international criminal law (i.e. the Apartheid Convention) since independence, the burden of history in Africa’s relationship with the international system more broadly, and the long shadow still cast by colonialism over international law.

As was pointed out by the OAU delegate at Rome in 1998, that longer, tragic history was the reason why ‘Africa had a particular interest in the establishment of the Court’. And it was with that unfulfilled promise – to be ‘a solution for their continent’s injustices’ – that African states chose to open their discussions on withdrawing from the ICC with two decades later.

So, African states were not naïve at Rome in 1998. Far from it: they were well aware of the potential shortcomings of the ICC but supported it nonetheless (for reasons both noble and less so, no doubt). Our point here is that not only have these legitimate concerns of African states been simply ignored or problematically dismissed; but that they have materialized over the past two decades not purely by the unfolding of uneven international politics, but also by the actions and inactions of the ICC (and in some cases its supporters).

Concern 1: An (im)partial Prosecutor: selection, non-selection and perception

To date the ICC has only prosecuted Africans (and only three successfully). While in 2016 the Prosecutor took the momentous step of formally opening an investigation outside of Africa(in respect of alleged crimes committed Georgia), it is yet to bring any cases in respect of that situation; all the remaining ten situations and all the pending cases concern Africa and Africans. Reasonable people will disagree (as do we, in fact) on whether the OTP has ‘targeted’ African states, but there is minimal consensus (between us, at least) that (1) the OTP has failed to pursue merit worthy cases outside of Africa, and (2) the OTP has failed to adequately address the perception that it has targeted African states, compounding matters further.

Perhaps the most obvious example of the direct refusal to take on a situation is the persistent failure of the Prosecutor, past and present, to take action in respect of crimes committed in or concerning Palestine. The Palestine situation remains stuck firmly in the preliminary examination stage, after three attempted referrals by Palestine of the numerous international crimes committed on its territory, the first of which took place over a decade ago. The Prosecutor has similarly (twice) refused to open an investigation into Israel’s 2010 attack on the Humanitarian Aid Flotilla bound for Gaza (MV Mavi Marmara), bringing her into direct conflict with the Pre-Trial Chamber which has disagreed with her assessment that there is no basis for the investigation to begin.

A similar pattern can be seen in the longstanding efforts of the former and present Prosecutor to ‘not-select’ the situations in Iraq and Afghanistan. Since it signed up to the Rome Statute in 2003, Afghanistan has continuously been the sight of alleged international crimes, at the hands of Afghan and foreign actors (in particular, the US, but including other states). In January 2007 the Prosecutor publicly announced he had opened a preliminary examination into the situation. However, it took almost seven years for the preliminary examination to move beyond the initial jurisdictionphase. In April 2019, twelve years after the preliminary examination was made public, the Pre-Trial Chamber handed down its decision refusing to allow the Prosecutor to open a formal investigation, not for lack of evidence but on the basis that it would not be in the ‘interests of justice’ – a decision that provoked immediate and severe criticism (including on this Blog, see here and here), and which the Prosecutor swiftly appealed.

What emerges from these examples is not only a skewed focus on African situations, but also an initial strategy of non-selection of other situations and then, once they become unavoidable, a further strategy of what Heller calls ‘slow-walk[ing] … preliminary examination[s] into oblivion … when superpowers are involved’ (see here).

What is more, to date there has been little to suggest a willingness on the part of either the former or current Prosecutor to accede to pleas from African states’ (and at least one Judge) to take these concerns seriously. In their approach both Prosecutors have been encouraged by the attitude of the international criminal law community, which has become increasingly impervious to criticism generally, and apparently dismissive of African states’ concerns in particular. Yet, as far as states are concerned, there is currently no more important audience for the ICC than the ‘group of 54 countries who provide the suspects and the accused’, as another ICC Judge candidly put it (while the Europeans, he added, ‘pay the bills’). As the AU’s Panel of the Wise noted back in 2011, ‘imposing justice while ignoring legitimate African concerns may be detrimental to justice’.

Concern 2: The Siren call of Security Council powers

The ‘non-selection’ of cases by the Prosecutor has been compounded by the (less surprising) refusal of the Security Council to exercise its powers under the Rome Statute with a modicum of consistency (most notably by refusing to refer the situation in Syria to the ICC, even after 65 UN states signed a petition requesting it to do so). This too was anticipated by African states at Rome in 1998, who nevertheless grudgingly accepted the Security Council’s role notwithstanding their well-founded fear that its power would be exercised capriciously, perhaps in the hope that the Rome Statute might be a launchpad for broader Security Council reform.

However, African states might not have anticipated just how central the Security Council would become to the ICC’s work, not just through the referral of situations (which itself appeared unlikely in 1998) but also through the willingness of the Prosecutor and the ICC’s supporters to operate within the shadow of its power (and politics). Or, as Schabas puts it, how the ICC would become ‘shackled to the priorities of the Security Council, with all that this entails, including the veto’, and ‘[march] in lock step with the permanent members’.

The most recent example of the Prosecutor and the ICC’s supporters’ cozy relationship with the Security Council, and its insidious effects, concerns the ongoing disputes regarding President Al-Bashir’s claim to Head of State immunity (debates that have become somewhat moot since his removal from office). Over the past decade academics have fiercely debated the status of President Al-Bashir’s immunity, and so when the issue finally came before the ICC Appeals Chamber in 2018 the Prosecutor was presented with a number of lines of reasoning from which to choose. Tellingly, she settled on an argument that not only further legitimates the role of the Security Council under the Rome Statute, it grants it extraordinary power beyond it (power that it did not even ask for), by endorsing the power of the Security Council to bind a state to a treaty to which it did not accede (and did so based on an expansive interpretation of the Security Council’s powers, and the terms of its resolutions).

What is more, in respect of the fears voiced by African states in 1998 of a sovereignty-usurping international court (which we will discuss in Part II of this post), the Prosecutor did little to allay these by arguing that, when it came to arrest President Al-Bashir, states were ‘nothing more than the Court’s agent in executing the Court’s arrest warrant’, with domestic police and so on now acting under the ‘enforcement jurisdiction … of the Court’.