Race, Nationality and the True Color of International Criminal Justice

[Chuka Arinze-Onyia is a Nigeria-based lawyer with an avid interest in international criminal justice and other adjacent subjects]

Introduction

Race and nationality play critical roles in understanding and experiencing international criminal justice. While international justice may ultimately aim to address prohibited crimes committed anywhere in the world without regard to the status of the perpetrator or victim, in practice however, it continues to perpetuate existing “global structural inequalities”. Clarke believes that racial and national biases heavily influence the nature of crimes punished by international law, its temporal jurisdiction, and prosecutorial discretion.. 

The goal of international justice is to ensure accountability for individuals no matter their status or nationality for conduct prohibited by international law. Therefore, nobody can be dismissive of its great utility. On the other hand, the system functions in a way that creates disparate experiences for persons of different nationalities and color, reinforces colonial aspirations and maintains existing power structures.  

This blog will demonstrate that systemic failures particularly with the exercise of voluntary state cooperation, have led to the oppression of African defendants before international justice mechanisms. It will also demonstrate a more intentional discriminatory practice and entrenchment of double standards in prosecutorial selectivity, and the exercise of universal jurisdiction which are consequential to persons of non-Western backgrounds.

State Cooperation as a Tool for Discrimination

State cooperation is vital to the survival of any international justice mechanism. Unless states support international justice mechanisms in arresting persons of interest, financing the system and even executing prison sentences, the system will collapse. The Rome Statute (see parts 9 and 10) recognizes the importance of cooperation, and demands it of all state parties, as do the various statutes of the UN ad hoc tribunals.

Unfortunately, even when masked in mandatory terms, cooperation remains mostly voluntary, as states retain their sovereignty in the international justice system. States decide if, when and how to cooperate with tribunals in any situation. This sort of selective cooperation has led to worse outcomes for African defendants before international justice mechanisms than what may be experienced by their European counterparts. 

The weaponization of cooperation became evident in both the provisional and final release of African defendants at the UN ad hoc tribunals and International Criminal Court (ICC). A requirement for provisional release by international tribunals, is that there be a state willing to make guarantees to enforce the conditions of release, if the defendant is released in their territory (see Simic and Bemba, para 106). European defendants of the International Criminal Tribunal for the former Yugoslavia (ICTY) had no problem satisfying this condition as their home countries were usually willing to make the necessary guarantees. On the other hand, many African defendants including the Rwandans of the International Criminal Tribunal for Rwanda (ICTR) cannot safely return their home state because the government of the day is hostile to them. Therefore, they can only be released to third states, and such third states are very hard to come by. It is for this reason that provisional release was virtually non-existent at the ICTR,  and similarly rare in the ICC, where defendants were found eligible for provisional release, but remained in detention because no state would accept them (see Mokom and Bemba).

This pattern replicates itself during final releases. African defendants have continued to be held in custody, years after they were acquitted or ordered to be released on completion of their sentences. Existing risks of human rights violation including violation of the non bis in idem rule, mean that some Africans cannot safely return home after trial and require the cooperation of third states to resettle. The UN’s solution to this problem was to build a safehouse in Arusha, where the ex-defendants are held until a safe third country is found. This is certainly not a viable solution as defendants spent years in the safehouse with limited freedom. An attempt to resettle some of the ex-defendants in Niger under a relocation agreement failed, as they were promptly arrested and currently are held under house arrest, after Niger decided to stop cooperating with the mechanism. Some have died in custody of the mechanism years after they were due for release.  In sharp contrast, the ICTY has had no problem with releasing defendants, as sometimes they are welcomed home to much fanfare.  

One might argue that the situation is not inherently tied to race or nationality, as the rules of provisional release were not made to target Africans. These rules apply equally to all persons and therefore, it is wrong to attribute this tricky situation to racism, when it is exacerbated by the internal politics of the defendant’s country. For instance, Limaj and other defendants of the ICTY could not secure provisional release because the UN Mission in Kosovo was unable to make the required guarantees. When Kosovo gained more stability, the authorities were able to make the necessary guarantees to obtain provisional release for their citizens. This argument is further supported by Ble Goude’s situation, where after an extended time in ICC custody post-acquittal, he was finally able to return to Cote d’Ivoire when the internal politics were favorable to him. So, if the situation with releasing African defendants back to their home countries is attributable to internal politics, there is very little the international justice system can do to intervene.

While some blame for the inability of Africans to secure provisional or final release is attributable to internal politics, it is also very apparent that the international community have not bothered to find lasting alternatives. If the operation of the rule requiring voluntarily given state guarantees for the provisional release of defendants, will lead to worse outcomes for Africans, then there is an inherent responsibility for criminal tribunals to find solutions. Simply importing an ICTY rule into the ICTR and subsequently the ICC, without regard to the diverse circumstances of individual defendants will inevitably lead to unequal outcomes. The ICTR may claim that it could not predict how difficult provisional release will be for Africans given the operation of this rule. However, the ICC which imported this rule several years later at a time when it had exclusively African defendants in its docket, cannot rely on the same excuse, as the unequal consequences of the operation of this rule on Africans had been evident in the ICTR for years. This color-blind judicial rule making can only be a disaster in a system created to deal with an incredibly diverse range of defendants. Therefore, the peculiarities of each group must be well considered before rule making. A justice system in which Europeans can secure provisional release while Africans cannot, is not fair, whatever the reason may be. 

Also problematic is the nonchalant attitudes of states to this African plight. States have been aware of the problem with the final release of African defendants even before Andre Ntagerura’s acquittal was confirmed in 2006 leaving him with nowhere to go, and no state to resettle in. He was held in the Arusha safehouse, until he was relocated to Niger, where he is currently held under house arrest. Despite requests by the defendants for states to be compelled to assist in the resettlement of ICTR defendants, the tribunal has continued to hold that states have the discretion to decide whether to assist. Delgado has pointed out that “racial unfairness” is inevitable in situations where discretion plays a role in criminal justice. Unless states are compulsorily required to protect the rights of African defendants, they will not do so. This failure of the entire system to address the plight of black defendants, delegitimizes it. 

Discriminatory Selectivity in Prosecution

“The “African bias” is a baseless accusation. I will not apologize for protecting the rights of African victims…you have to choose your side to protect the criminals or their victims.”

Luis Moreno-Ocampo

The legitimacy of international justice is further challenged by the exercise of prosecutorial discretion  in a manner that has been detrimental to persons of color. This section will argue that international justice continues to be a tool for perpetuating inequality, by protecting the interests of Europeans while policing the activities of persons of color in a neo-colonialist way. 

The first international justice project in Nuremberg and Tokyo was established to address large scale atrocity crimes committed against Europeans. Meanwhile crimes of similar nature committed in Africa, the Americas, Australia and Asia by Europeans in the colonial era were completely ignored. Savvias argues that international criminal law does not recognize crimes committed by Europeans on non-white bodies. However, it is completely able to address crimes committed against Europeans.

It is this prioritization of the European victim that led to the creation of the ICTY to address crimes committed in the former Yugoslavia. While some may point to the ICTR created a year later as evidence of a similar attempt to address crimes committed against Africans, Mutua believes that the creation of the ICTR was not from genuine intent to address genocide. Instead, it was established because “the powerful states that control it could not reject a tribunal for Rwanda when they had set one up for the former Yugoslavia; formally, white European lives were put on the same footing with black African lives.” And yet justice was experienced differently in the two tribunals as analyzed above. The establishment of the ICC did not remove focus from the prioritization of white lives as the court’s largest and most efficient investigation has been in Ukraine, where the court also conducted an unprecedented campaign to raise funds to support the investigation. 

However, the ICC paved the way for a period when international justice became very committed to prosecuting Africans. Despite having a docket made up exclusively of Africans, when accused of having an African bias, Moreno-Ocampo dismissed these allegations as transparent propaganda originated by Al-Bashir to divide Africa’s support for the ICC and thwart the ICC’s investigation in Sudan. Ignoring the fact that the Sudan referral was conditioned on the court not investigating or prosecuting Americans who may have committed crimes in the country.

The allegations of bias and apparent double standards have only gained traction over the years. From the strange decision not to investigate British crimes in Iraq, to the decision to deprioritize aspects of the Afghanistan situation dealing with American crimes, the court has made little effort to maintain the semblance of neutrality as it has consistently shown great aversion for prosecuting Western countries.

And then there is the question of Palestine, which has generated much debate. The inaction of the international criminal justice system as the civilian population of Gaza is systematically decimated is not only jarring but appalling. Senior Israeli state officials have publicly called for genocide, and starvation is notoriously being used as a weapon of war. At least 25000 civilians, many of them children, have been killed by Israel in Gaza, and beyond stating that it has jurisdiction in Gaza, the ICC has made no apparent progress. Unlike in Ukraine, there has not been a widespread influx of voluntary contributions to the court, though Belgium has pledged a significant amount to support the court’s investigation. There are no talks of establishing a tribunal to investigate the crimes being committed in the conflict. Once again, it appears that an ally of the West, in this case Israel, enjoys impunity for crimes committed against persons of color. Human Rights Watch correctly asserts that these brazen attacks on civilians are the legacy of decades of impunity and lack of accountability.

Finally, there is the selective use of universal jurisdiction in a manner that can only be described as a form of neo-colonialism. Non-Europeans have been disproportionately prosecuted in the realm of domestic enforcement of international criminal law. As an ideal, the fact that any country can prosecute anyone found to have committed crimes under international law, is great and should be supported. In reality, the exercise of universal jurisdiction disproportionately affects defendants of color. Over 90 percent of cases prosecuted on the basis of universal jurisdiction have occurred in Western Europe. And the defendants have scarcely ever been Europeans. While the cases are largely legitimate and should be prosecuted, one cannot help but wonder why this same system has not been used to ensure accountability for crimes  committed abroad by Western nations.

Conclusion

Eradicating the racial and national biases that shape the current global experience of the international justice system is not just a moral imperative, but also critical for its legitimacy. Decisive reformatory actions must be taken to embed racial equality in all aspects of  the justice system. The shameful problem of discriminatory access to provisional and final release could be addressed by making state cooperation mandatory in matters of release or by compelling host states to play a more proactive role in guaranteeing the freedom of defendants until a final resolution is found.

Difficult as it may be, the international justice system must strive to exist above the racial power structures prevalent in global politics. It cannot be a tool for securing impunity for one group, while prosecuting others. Prosecutors must respond to crimes committed by white persons against persons of color, with the same fervor that they address crimes committed by Europeans in Europe. No country or person should be considered untouchable and impunity in all its forms must be shunned.