In this essay, Kurt Mills examines the role of the International Criminal Court (ICC) and the resistance to it on the part of African states. The ICC must respond to these challenges, he argues, but we must be realistic about what underlies the stance of African governments. Norms change slowly, and wider power inequalities within the international system need to be addressed.
This month, the 123 member states of the International Criminal Court (ICC) will meet in New York City for the 16th Assembly of States Parties (ASP). Each year, those states which have ratified the Rome Statute of the International Criminal Court meet to decide on policy, approve the budget, and elect judges. This year, however, the ASP will be a little different – there will be one less member state. On 27 October Burundi became the first state to withdraw from the Rome Statute. This decision comes in the broader context of challenges to its authority from Africa – from both individual states and the African Union (AU) itself.
These challenges threaten the legitimacy and functioning of the ICC. Yet, the dynamics of this challenge are complicated and multifaceted. This article will discuss the broader context of these challenges and resistance to the ICC, as well as the potential implications for the ICC and international justice efforts more broadly.
WHAT IS THE INTERNATIONAL CRIMINAL COURT?
The International Criminal Court was created in 1998 with the signing of the Rome Statute of the International Criminal Court. It built upon a foundation of increasing international efforts to implement the anti-impunity norm and ensure justice for those who committed the most heinous of international crimes – genocide, crimes against humanity, and war crimes.
These efforts led to the creation by the UN Security Council (UNSC) of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. These developments were complemented by efforts by individual states to invoke the principle of universal jurisdiction to try non-nationals for crimes considered to be international. The attempts by Spain to extradite former Chilean President Augusto Pinochet from the UK is the most famous instance of this which, while ultimately unsuccessful, did reify the principle of universal jurisdiction.
Although these efforts proceeded apace, it was felt that a more permanent court, which was independent of the United Nations, and in particular the UNSC, was necessary. Having a permanent court would mean that it would not be subject to the vagaries of the preferences of the permanent members of the UNSC. It might also contribute to deterrence. If potential war criminals knew that they might end up before this international court, they might think twice about their actions.
If potential war criminals knew that they might end up before this international court, they might think twice about their actions.
The Court was up against some major headwinds. The Rome Statute states that nobody is immune to the jurisdiction of the Court (if their state or a state where they carried out the crimes they might be charged with is a party – or if the UNSC refers the situation to the Court). This includes sitting presidents and prime ministers and other senior leaders. The ICC undermines the core international norm of sovereignty, but in particular it directly challenges diplomatic immunity and head of state immunity.
While sovereignty has been challenged both in practice and conceptually ever since it became a fundamental principle of international law and is not nearly as monolithic as many assume (or would like it to be), these latter two elements of international law have been relatively inviolable. The ICC fundamentally undermines this inviolability. Yet, although all member states supposedly accepted this when they signed the Rome Statute, there is significant contestation over this and disagreement over whether the Rome Statute did, in fact, overrule head of state immunity and diplomatic immunity.
The ICC is based on the principle of complementarity. It only gains jurisdiction over a situation in an ICC member state if that state fails to properly investigate and/or prosecute citizens who commit mass atrocities. The Prosecutor can open an investigation themselves using their proprio motu powers, or if a member state refers a situation. The UNSC can also refer a situation in a non-party to the ICC. The Rome Statute requires members – including those not directly involved in an investigation or prosecution – to assist the ICC.
African states played a key role in the creation of the ICC, with countries like South Africa and Ghana members of the so-called ‘like-minded group’ which pushed for a strong court with an independent prosecutor. One motivation for support of the ICC was to help ‘lock-in’ democratic gains after transitions from conflict and authoritarian rule. Some African states have always opposed the ICC. They have tended to be authoritarian, human rights abusing states, like Egypt and Libya. Yet, until Burundi withdrew, Africa had the same percentage of members (63 percent) as the world as a whole, and Senegal was the first country to ratify the Rome Statute.
Until Burundi withdrew, Africa had the same percentage of members (63 percent) as the world as a whole, and Senegal was the first country to ratify the Rome Statute.
Indeed, during the first six years of the ICC’s existence from 2002, African members states, and the African Union (AU), were supportive of, and cooperated with, the ICC. In 2004, the AU urged its members to ratify the Rome Statute. The ICC’s first two cases were referred by Uganda in 2003 and the Democratic Republic of Congo (DRC) in 2004. When the UNSC referred the situation in Darfur to the ICC in 2005, there was little comment. African states, and the AU, also played vital roles in trying two former African leaders (Charles Taylor and Hissène Habré). All of this seemed to demonstrate that the anti-impunity norm upon which the ICC was founded was gaining traction in Africa.
Yet, the tide began to turn in 2008 when the AU began accusing non-African states (and especially those in the European Union) of abusing universal jurisdiction by trying Africans in national courts for crimes committed in their home countries. Rwanda has been the most prominent critic of universal jurisdiction, in particular criticising Western states’ attempts to prosecute members of the Tutsi-dominated government for crimes committed during and after the Hutu-led genocide.
The African Union has said that attempts to invoke universal jurisdiction against African leaders violated ‘the sovereignty and territorial integrity of these states’.
The AU said that attempts to invoke universal jurisdiction against African leaders violated ‘the sovereignty and territorial integrity of these states’. Immediately after this the ICC Prosecutor, Luis Moreno-Ocampo, requested that an arrest warrant be issued against Sudanese President Omar al-Bashir for the actions of his government in Darfur. The AU immediately called for the UNSC to defer the investigation (a power it is given in the Rome Statute). The AU repeated the assertion that international justice measures were being used unfairly against African states and leaders. It also argued that the prosecution could undermine the prospects for peace in Darfur. By this time, there seemed to be a muddling of universal jurisdiction and the ICC, situated within a narrative of bias against Africa.
This narrative intensified when the ICC Pre-Trial Chamber issued an arrest warrant for Bashir in March 2009. Soon after, three African ICC members (Senegal, Djibouti and Comoros) and Libya, a non-member, called on African states to withdraw from the ICC. This was rejected by a meeting of African ICC members, although most supported the deferral request. Later that year, the AU Assembly called for an African court to be created to try mass atrocity crimes to allow Africa to bypass the ICC via regional complementarity (although there is no provision for this in the Rome Statute). It also called on African state parties not to cooperate with ICC arrest and surrender orders – a clear call to violate core Rome Statute obligations.
Later that year, African ICC members called on the ASP to direct that the interests of peace be considered alongside the interests of justice in Prosecutorial guidelines for when to investigate, thus framing peace in opposition to justice. They also proposed that the UN General Assembly (UNGA) should be empowered to defer ICC proceedings when the UNSC fails to make a decision, hoping it would be a friendlier forum for deferral requests, given the dominance of developing countries. Neither of these proposals – which would have undermined the ICC’s core functions – gained much official support in the ASP itself, and failed.
In the following years, resistance to the ICC has grown, with other attempts by the AU and individual African states to resist it and undermine its functioning in Africa. In 2010, the AU Assembly rejected a request by the ICC to open a liaison office in Addis Ababa, where the AU is based, with AU Commission Chairperson Jean Ping claiming that the ICC was bullying Africa.
It was obvious that not all African states supported these efforts – ICC members like South Africa, Ghana and Botswana argued strongly against the critiques of the ICC – but there seemed to be an overall trend against the ICC. The President of Malawi, who also Chaired the AU, stated that heads of state should not face ICC prosecution and should only be tried by African courts. This was a reassertion of the idea that African problems required African solutions, redefining the most appropriate place for justice to be implemented.
In October 2013, the AU reiterated that international courts should have no jurisdiction over sitting African heads of state. It began to move forward on creating an African Court of Justice and Human Rights (ACJHR) by merging the existing African Court of Justice and the African Court on Human and Peoples’ Rights. There is no provision in the Rome Statute for a regional court to substitute for the ICC because the principle of complementarity only applies to states. But the move to create the new court obviously reflects the influence of the ‘African solutions for African problems’ and African solidarity norm.
In January 2016, the AU called for the preparation of a roadmap for mass African withdrawal from the ICC ‘if necessary’.
Yet support for the broader anti-impunity norm seemed to have eroded even further in June 2014 when the AU summit voted to add international crimes such as genocide and crimes against humanity to the jurisdiction of the ACJHR while simultaneously excluding sitting heads of state from the court’s jurisdiction. This was a direct challenge to a key element of the anti-impunity norm which undergirds the Rome Statute – that nobody is immune to prosecution.
Since 2014, the AU’s resistance to anti-impunity has stiffened further. In January 2016, the AU called for the preparation of a roadmap for mass African withdrawal from the ICC ‘if necessary’. And in January 2017, the AU adopted an ICC ‘Withdrawal Strategy’ which, while not actually calling for mass withdrawal, examined key legal and practical issues related to withdrawal, as well as potential amendments to the Rome Statute.
Since the arrest warrants for Bashir were issued, he has traveled to a number of African ICC-member states without being arrested: Chad (2010, 2011, 2013 (twice), 2014), Kenya (2010), Djibouti (2011, 2016), Malawi (2011), Nigeria (2013), Democratic Republic of the Congo (2014), South Africa (2015) and Uganda (2016, 2017). All of these states were in direct violation of their obligations under the Rome Statute to cooperate with the ICC, including by implementing arrest and surrender orders.
This provides the backdrop for a further series of events over the last three years which have led to the withdrawal from the ICC by Burundi, (failed) attempts by two other states to withdraw, and threats by other African states to withdraw.
Burundi was the first African state to formally indicate its intention to withdraw (in October 2016), and became the first – and so far only – state to actually withdraw from the ICC. The government asserted that the ICC was an instrument of powerful countries to punish the weak who do not do their bidding. Senior government figures were facing an investigation by the ICC for post-election violence in 2015, and thus may have been trying to avoid the potential repercussions of an investigation, demonstrating the weakness of its commitment to anti-impunity and the self-interested nature of the decision to withdraw.
Whether this will have the desired effect of insulating Burundian leaders from the reach of the Court is an open question, given that the Rome Statute states that withdrawing states are still subject to the ICC’s jurisdiction for investigations initiated before the withdrawal date. Indeed, just two days before the withdrawal, the ICC Pre-Trial Chamber had authorized (initially under seal) an investigation.
In many ways, the case of South Africa has been the most troubling, given that it was one of the ICC’s strongest supporters, and has reiterated a number of times that it would arrest Bashir if he ever visited South Africa. In the end, this turned out not be the case, creating momentum for South Africa to withdraw from the ICC.
In June 2015, Bashir travelled to South Africa to attend an AU summit. A South African court issued an order that the government not allow him to leave until the court could determine whether or not he should sent to the ICC in The Hague. The court issued an arrest warrant, but Bashir clandestinely left the country before it could be executed. Pretoria argued that Bashir held special immunity because he was attending an AU summit as Head of State (thus directly challenging a key tenet of the anti-impunity norm underlying the ICC – that no one is immune to prosecution, regardless of status). The South African courts, however, ruled that the government had an international obligation to arrest Bashir, which it had violated.
In October 2016, the government announced that it would withdraw from the ICC. Yet, domestic contestation would provide to be an impediment to this decision. In February 2017, the South African High Court ruled that the government required parliamentary consent to withdraw, which it did not have. The government immediately complied with this ruling and revoked the withdrawal.
The ICC subsequently found that South Africa had violated its obligations under the Rome Statute. Yet, it declined to refer South Africa to the UNSC for non-cooperation, basically deciding that this would not accomplish anything, given the lack of action on its previous six referrals. And while President Zuma stated in July that the government still intended to pursue withdrawal, it is unclear if or when this will be pursued.
South Africa’s position towards anti-impunity has therefore changed significantly, although it has not rejected the anti-impunity norm per se because in its instrument of withdrawal the government noted the country’s commitment to fighting impunity. Yet, this commitment appears to be in conflict with its commitment to recognising diplomatic immunity and its commitment to the peaceful resolution of conflicts – the arguments it has put forth to justify its attempted withdrawal.
Gambia also announced that it intended to withdraw in late October 2016. It repeated the accusation that the ICC was targeting Africans – calling it the ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’. It also argued that Western war criminals have not been prosecuted, and has tried to get the ICC to prosecute EU states for migrants drowned in the Mediterranean. But the main reason for the withdrawal may have been the fact that the government had been accused of election-related repression. Yet, after the withdrawal was announced the incumbent President, Yahya Jammeh, lost an election, and the President-elect, Adama Barrow, vowed to reverse the withdrawal decision, which he did in February 2017 (withdrawals take effect one year after official notification, so Gambia, as with South Africa, had not actually withdrawn before the decision was reversed).
Thus, it seemed a year ago that there was an increasing movement against the ICC, which threatened to fundamentally undermine its legitimacy – at least in Africa – and its ability to carry out its core functions. With the two reversals, this has been avoided, although there are still threats on the horizon – particularly in the form of other countries who have agitated for withdrawal.
Kenya has been one of the most outspoken African ICC member countries in its criticism of the ICC. The ICC has indicted several Kenyan politicians for election related violence in 2007, including those who would later become President and Vice-President. As with Bashir, the AU Assembly also called for these proceedings to be deferred. As a result of Kenyan non-cooperation, the charges were dropped (but ‘without prejudice’, meaning they could be refiled). The Kenyan parliament voted in 2013 to withdraw from the ICC, although this was never acted upon. Kenya has also been leading efforts to amend Article 27 of the Rome Statute to give sitting heads of state immunity from prosecution. It has also supported preparations in the AU to secure a mass African withdrawal from the ICC if the amendment push fails.
Uganda was the first state to refer a matter to the ICC Prosecutor, but has had a very complicated relationship with the ICC. With the referral Uganda attempted to use the ICC as a weapon against the rebel Lord’s Resistance Army (LRA). Yet, it has also invoked the peace vs justice argument to assert that the ICC was getting in the way of peace negotiations. Museveni perceives the ICC as a ‘Western tool out to punish Africa’; denounced the ICC as a ‘bunch of useless people’; and in May 2016, allowed Bashir to visit for Museveni’s fifth presidential inauguration.
In October 2016, a Ugandan cabinet minister suggested that Uganda had initiated withdrawal proceedings, although there is no evidence of this, and the Uganda Attorney General denied that Uganda had considered withdrawing. Last month, Bashir visited Uganda again, at the invitation of Museveni. The Ugandan courts declined to issue an initial arrest warrant, scheduling a hearing for 11 December – long after Bashir’s departure.
Finally, the Namibian government has announced twice (in 2015 and 2016) that it intended to withdraw from the ICC, although it has not done so. It, too, has argued that the ICC is biased against Africa and is essentially engaged in regime change in Africa.
Yet there is still significant support for the ICC in Africa. Four African countries have joined since 2010 (Seychelles, Tunisia, Cape Verde and Côte d’Ivoire). Botswana remains a stalwart supporter of the ICC, frequently challenging anti-ICC statements from the AU. And in July 2016 Botswana, Nigeria, Senegal, Tunisia, Côte d’Ivoire and Algeria pushed back against calls for mass withdrawal at an AU Summit, preventing the proposal from being included on the agenda. After the 2016 withdrawal announcements, a number of countries, including Botswana, Côte d’Ivoire, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania, and Zambia reiterated their support for the ICC. At the 2016 ASP last December, these eight states were joined by other African states in reiterating their support for the ICC.
RESISTANCE TO THE ICC
Thus, while the ICC has its supporters in Africa, it faces significant threats to its legitimacy and its operations as states have refused to cooperate with the ICC, and some have moved to withdraw from the Court. My colleague Alan Bloomfield and I have identified three general justifications African states and the AU have used to rationalise resistance to the ICC, and eight ways in which they have engaged in resistance. To conclude this article, I’ll briefly discuss what we call strategic and tactical acts of resistance.
Strategic resistance has been aimed at, and pursued through, significantly, if not exclusively, other African states. First, many African states argue that the way the ICC has acted has undermined African sovereignty and has demonstrated bias against Africa. Second, they have argued that the interests of peace must sometimes override the interests of justice. Third, they have invoked norms of African solidarity and argued for ‘African solutions to African problems.’ There is not space to evaluate these strategic justifications in detail, but I will make a few observations.
With regard to the first point, African states knew (or should have known) what they were getting into when they signed the Rome Statute. An independent international court does undermine classical notions of sovereignty (although I have argued previously that respect for human rights is now a part of our understanding of sovereignty). But it is hard to make the case for bias. Yes, until the ICC officially opened up a case in Georgia in 2016, all of the cases prosecuted had been in Africa (and all individuals sought by the ICC are still African). But certainly there have been many situations of atrocities in Africa.
Four of the eight countries in Africa where the ICC has formal investigations were referred to the ICC by the governments themselves. And the current Prosecutor is African. This can hardly be seen as evidence of bias against Africans.
While there have been atrocities elsewhere, in some situations where African states argue there should be investigations, the ICC has not had jurisdiction (such as Syria), or only recently acquired jurisdiction (as in Palestine). Further, four of the eight countries in Africa where the ICC has formal investigations were referred to the ICC by the governments themselves. And the current Prosecutor is African. This can hardly be seen as evidence of bias against Africans.
The argument about peace and justice has some superficial appeal. Once could make an argument that ensuring a war ends and people stop being killed could be seen as a particular type of justice. And it has a certain realpolitik logic – sacrifice the demands for punishment to broader international security goals. Yet, reality is usually much more complicated. This logic assumes a willing partner for peace, which it is clear Bashir, for example, is not. It ignores the destabilising effects of keeping mass murderers in power or free in society. And it does not take into account what are frequently the wishes of many in affected societies.
The argument regarding African solutions for African problems also has appeal. Regional actors may have a better understanding of the dynamics of a conflict – and a greater interest in resolving the conflict. Yet while African regional institutions, and in particular the African Union, have made great strides, they are still toothless in many situations. Dictators like Robert Mugabe of Zimbabwe, who was recently removed from power in a coup, have received the support of the AU and other leaders as an expression of African solidarity – solidarity which still too often prioritises state leaders over people (this is of course not to deny that such dynamics occur in other parts of the world, too). And, as noted, the AU recently decided to exempt sitting heads of state from international criminal justice proceedings – hardly an adequate ‘solution’ to a ‘problem’.
The background to many of the arguments coming out of Africa is the very real situation of global power imbalance, in particular in the UN Security Council. Africa has demanded two permanent seats on the Council to help it take what it sees as its rightful place in the global political order. More generally, African states also complain about hypocrisy on the part of Western states. None of this can be denied. Yet, it is also not an argument to allow mass murderers to escape justice.
As I detail above, African states and the AU have engaged in eight specific types of practical resistance to the ICC:
1/ They have called on the UNSC to defer proceedings against Bashir and as well as leaders in Kenya. The UNSC has ignored these requests.
2/ They have threatened the mass withdrawal of African states from the ICC. Although Burundi has withdrawn and there have been various discussions in the AU about mass withdrawal, this has not happened and is not likely to happen.
3/ They have attempted to create alternative African judicial structures to substitute for the ICC. Aside from the fact that the Rome Statute only applies complementarity to states (although this could be amended), these structures have not been implemented, and in any case actually undermine key elements of the anti-impunity norm underpinning the ICC.
4/ They have called for non-cooperation with ICC arrest and surrender orders. Given the extent of African non-cooperation this should certainly be seen as an effective act of resistance – it undermines the ICC’s ability to prosecute key individuals.
5/ They have called for the ‘interests of peace’ to be considered alongside the ‘interests of justice’ in decisions to prosecute or not. This has not been supported by the Assembly of States Parties since it would fundamentally politicise the ICC (which is not to say that there are not political aspects to the ICC).
6/ They have sought to empower the General Assembly to act to defer proceedings if the UNSC did not act on such a request. This has not happened.
7/ They have prevented the ICC from establishing a liaison office in Addis Ababa. This has had more symbolic than practical effect – at least compared to the effect of non-cooperation.
8/ They have called for the Rome Statute to recognize head of state and government immunity. This has not happened – and will not happen, since it would fundamentally undermine the central norm of anti-impunity underpinning the ICC.
The acts of resistance against the ICC on the part of African states, and the broader hardening of anti-ICC sentiment are worrying for the ICC as an international institution which is dependent upon state support to be able to carry out its mandate – as well as for its legitimacy more broadly. Burundi’s withdrawal directly attacks both, but the two withdrawal reversals indicate internal contestation over the ICC. And more broadly, it is evident that the ICC still has significant friends amongst African states, demonstrating that that African antipathy towards the ICC is by no means monolithic. While the anti-impunity norm may have been stalled in its advance, it is not yet in danger of collapsing.
Further, the ICC must be put in its broader global context. It does not operate only in Africa. The Prosecutor is currently preliminarily examining several ‘situations’ outside Africa. One of them, Georgia, has been upgraded to a formal investigation. And just last month, the ICC Prosecutor announced she would request judicial approval to open up an investigation in Afghanistan, which could open up US citizens to prosecution.
These investigations are in their early stages (although it has taken the Prosecutor 10 years of preliminary investigation to get to this point in Afghanistan) and face significant challenges. But if they lead to actual charges being brought, this could go a long way in undermining the anti-African narrative, as would moving from a preliminary to formal investigation in Palestine. Yet the refusal of the UNSC to refer the situation in Syria to the ICC demonstrates the inequities (and iniquities) of global power politics.
The refusal of the UNSC to refer the situation in Syria to the ICC demonstrates the inequities (and iniquities) of global power politics.
The challenge from Africa must also be placed within wider challenges and the broader sweep of normative change. While the ICC follows on from previous developments in international criminal justice, it is also a radical disjuncture from traditional assertions of sovereignty. It is a permanent (mostly) independent body that, theoretically, can hold the most powerful to account. This is not something that comes fully formed overnight. Such radical shifts do not occur immediately. Normative change takes time, and is subject to multiple reversals.
Although we may like to think there is a single, irreversible trend toward ever greater protection of human rights and the bettering of the human condition, reality is much more complicated. And African states – even if they do so for frequently self-interested reasons which have little to do with human rights – rightly point to inequities in global power which eventually need to be rectified. That also is not an overnight project.
But even as Africa still struggles to find its place, the global status quo has shifted. Although there are attempts to modify and circumscribe it, the anti-impunity norm and its institutional manifestation the ICC have become permanent fixtures in global politics.
Kurt Mills is Professor of International Relations and Human Rights at the University of Dundee and Vice-Chair of the Academic Council on the United Nations System. He is the author of two books – International Responses to Mass Atrocities in Africa: Responsibility to Protect, Prosecute, and Palliate and Human Rights in the Emerging Global Order: A New Sovereignty? – and co-editor of two others – Human Rights Protection in Global Politics: Responsibilities of States and Non-State Actors and Moral Victories: The Ethics of Winning Wars. He can be emailed at: [email protected] and is on Twitter at @ProfKurtMills
Feature image: Omar al-Bashir, the president of Sudan, listens to a speech during the opening of the 20th session of The New Partnership for Africa’s Development in Addis Ababa, Ethiopia, Jan. 31, 2009. An international arrest warrant was issued by the ICC for al-Bashir in March 2009, a second in July 2010. He is still at large. Image: Jesse B. Awalt (public).