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

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.

In our first post, we identified how the legitimate and longstanding concerns of African states regarding the ICC have been simply ignored or problematically dismissed. We continue with that theme by focusing on the final two concerns raised by African States at Rome in 1998, and the manner in which those concerns have come to be realized.

Concern 3: The Trojan ‘workhorse’ of complementarity

The fear of an overzealous, sovereignty-usurping international court underpinned Africa states’ insistence in 1998 that the ICC ‘should be an effective complement to national criminal justice systems’, and as a result there were significant safeguards included in the Rome Statute to mitigate this concern, including the ICC’sorganizing principle of ‘complementarity’.

Therefore, perhaps most concerning for African states is McAuliffe’s suggestion that, through the strategy of soliciting self-referrals and ‘selective, self-serving readings of the Statute’s complementarity provisions’, the Court and its supporters have deliberately sought to abandon the ‘horizontal framework’ contained in the Rome Statute (‘rooted in State consent and deferential to the State’s primacy of action regarding criminal prosecutions’) in favour of a ‘vertical framework [where]… the Court enjoys priority over the national jurisdiction, incorporating notions of superior supra-nationality as an international body and implying a relationship of authority by intervening in the domain of domestic affairs’.

Such a shift would be the realization of African states worst fears at Rome, where they were unsurprisingly perhaps the most ‘sovereignty-conscious’ participants – as a result of their complex relationship with sovereignty in the past, and perhaps in anticipation that they would likely bear the brunt of an over-zealous international court in the future. It is for this reason that African states expressed a clear preference for a ‘horizontal framework, rooted in State consent and deferential to the State’s primacy of action regarding criminal prosecutions’.  Certainly, the shift towards ‘verticality or supranationality’ would have been more difficult had its effects been felt by ‘stronger states’ (historically, politically and economically). Beyond weak and strong states, the gradual shift that empowers a global, largely-Western elite (consisting of not just court functionaries but academics and NGO representatives) to ‘oversee and manage’ so-called ‘positive complementarity’ efforts almost exclusively directed at African states has unavoidable colonial parallels.

Concern 4: From ‘peace versus justice’ to ‘no peace without justice’

Finally, in 1998 African states hoped that the ICC would be ‘a necessary element for peace and security in the world’, and ‘ultimately contribute to the attainment of international peace’; a framing that presumed that the ‘justice’ of the ICC would be one response amongst many to address conflict and attain ‘peace’, if not an instrumentto that end. Ten years later, in July 2008, the choice between these two possibly competing ends was sharply posed when the Prosecutor requested an arrest warrant for President Al-Bashir and the AU responded immediately by requesting the deferral of the proceedings (arguing that ‘the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace’). While the AU continually stressed the need to address ‘in a mutually reinforcing manner the inter-linked issues of combating impunity and promoting peace’, from the outset the Prosecutor saw the matter more starkly (and simply): ‘[A] man committing genocide is standing in the way of justice, peace, and security for the Darfuris’, he told the press in announcing his application for the arrest warrant.

The AU responded by establishing an independent High-Level Panel ‘of distinguished Africans of high integrity, to examine the situation in depth’. The Panel’s detailed 144-page report (released in October 2009) adopted a balanced approach by re-iterating that peace and justice were ‘inextricably linked’, but cautioned that ‘[j]ustice with respect to Darfur cannot be discussed in a vacuum, but must be debated and decisions made within the context of the search for peace and accountability’. Such debates and decisions, the report noted, were often more about timing (i.e. ‘about which should come first between justice and peace’) than a hard choice between the two.

On this basis the High-level Panel took a measured approach in its recommendations, which concerned both peace and justice. It set out in detail its proposal for the establishment of a Hybrid Court (along the lines of the existing Special Court for Sierra Leone and the Extraordinary African Chambers in Senegal established to try Hissene Habre and others that came later), despite the objections of supporters of the Government, and noted that under the principle of complementarity the ICC would be ‘obliged to take consideration’ of its establishment (along with other local ‘effective justice measures’), which ‘would also be of interest to the Security Council in reaching any decisions with respect to the situation in Darfur and the Sudan more generally’.

The Prosecutor at the time saw it differently, insisting that the ICC’s demands came first. His successor initially promised a more diplomatic tone, but the effect of the Prosecutors’ approaches – old and new – was a construction of the Rome Statute that left African states solely at the mercy of the Security Council (and the Great Powers) when it came to airing their concerns about the effects of the ICC’s proceedings on peace, security and reconciliation (in Darfur and elsewhere). Not just as sometimes competing ends, but even when it came to the question of ‘sequencing’ their pursuit.

Perhaps little surprise then that the AU’s recently adopted Transitional Justice Policy has been influenced in no small measure by growing frustration over the ICC Prosecutors’ ‘mechanistic’ approach in respect of Darfur. The sharpest articulation of the link, and the frustration, is the 2014 New York Times op-ed co-authored by former South African President Thabo Mbeki (who was also the chairperson of the AU’s High-level Panel on Darfur) and Mahmood Mamdani (see here). As Mbeki and Mamdani pointed out, the prevailing ‘common sense’ preference for international criminal trials was a recent one. At Rome in 1998 the ‘inadequacy of court trials as a response to politically driven mass violence’ was not the anathema it has become a decade later.

This was exemplified by South Africa’s Truth and Reconciliation Commission (TRC), which was not only tolerated but celebrated by international lawyers and NGOs, despite the fact that apartheid had been declared a crime against humanity and over half the states in the world had committed to its prosecution by signing up to the Apartheid Convention (on which, see here). Shortly after the adoption of the Rome Statute, and while trying to rally support for its ratification, Kofi Annan told a group of South African students that it was ‘inconceivable that … the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future’. There are obviously differences between the TRC and the situation in Darfur, but the point is that when the Rome Statute was adopted it was at least possible to conceive of justice yielding to peace in certain circumstances (for Annan, in cases like South Africait was inconceivable that it wouldn’t).

Since 1998, however, the ‘turn to criminal law’ by human rights advocates, institutions and courts (on which, see Engle) has meant that the obligation to prosecute atrocities has become absolute, as exemplified by the hardline ‘no lasting peace without justice’ moniker that predominates today. Regrettably, when African states and leading African diplomats and academics have suggested a more dynamic and complex relationship between peace and justice, they have been either ignored or, according to Mbeki and Mamdani, had their motives called into question.

Concluding Remarks: correcting ship

In these two posts we have outlined the role that the ICC has played in the souring of its once-promising relationship with African states over the past two decades. While the ICC has been navigating treacherous waters and seemingly omnipotent actors, it has made decisions (and non-decisions) along the way which have made matters worse. It would be a brave onlooker who predicts where the story will go from here, but we make two closing remarks about the future the ICC and its relationship with African states.

The first is that the journey is far from over. In Homer’s epic, Odysseus’s journey home to Ithaca took ten years, and in April 2019, ten years after the ICC issued its arrest warrant, President Al-Bashir was removed from office in a coup d’état and lost any claim he might have had to Head of State immunity. This coincidence might leave the optimist to conclude that the ICC’s travails are over, that they began and ended with President Al-Bashir. However, leaving aside the question of whether now ex-President Al-Bashir will be surrendered to the Court, as we have tried to demonstrate the ICC’s problems extend beyond Al-Bashir – rather they can be traced back to the hopes and fears African states expressed at Rome in 1998. The sum of their fears was that the ICC would come to mirror the worst iniquities of the international system, and there can be no clearer indication that this is the case than the recent decision of the Pre-Trial Chamber in respect of Afghanistan.

Twelve years after the Prosecutor first announced she was opening a preliminary investigation, the Pre-Trial Chamber decided that there was a reasonable basis to believe that international crimes had been committed in Afghanistan, and that potential cases arising from the investigation would be admissible under article 17, but that nevertheless opening a formal investigation was not in the ‘interests of justice’. It did so on the basis of recent ‘changes within the relevant political landscape’ (i.e. increasing US hostility towards the ICC following the election of Donald Trump and directed threats to the Prosecutor and any others that facilitate the work of the ICC against the United States or its allies) that made it ‘extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future’, and the ‘foreseeable absence of additional resources for the coming years in the Court’s budget’. For its critics, the ICC simply capitulated in the light of the political and economic costs of pursuing a case against a Great Power, at its first real attempt at doing so.

Our second closing remark is that if the ICC is going to try correct course then it would do well to learn from its own failings, and those of Odysseus who (in contrast to his heroic treatment by Homer) Virgil characterized as a ‘double-talking’, ‘heartless schemer’, who’s hubris and self-interest not only prolonged his voyage home, but ultimately led to the death of his entire crew. Allegations of ‘double-talking’ will certainly resonate amongst the ICC’s critics, as well might the moniker ‘heartless schemer’ for victims of atrocities in Afghanistan, Palestine and elsewhere. However, even its supporters would struggle to resist the charge that the ICC has been acting out of self-interest (at least insofar as the Afghanistan decision is concerned). The claim of hubris is also likely to stick, as calls for the ICC and international criminal law to adopt a more modest assessment of its own ability have come from supporters and critics alike.

If the ICC does choose to correct course it should start with redressing its relationship with African states by taking their concerns seriously, if not out of a repudiation of the hubris of the past then at least out of a re-calibration of its ‘self-interest’ that recognizes that it cannot survive without the support of the ‘group of 54 countries who [continue to] provide the suspects and the accused’. That will remain the case even if the ICC finally pursues a prosecution outside of the continent of Africa; and if the Afghanistan decision is successfully appealed and Palestine eventually makes it onto the Court’s roll, then all the more so.