Concerning the International Criminal Court/ICC/

The African state and regional organizations being what they are, the ICC is crucial for Africa than any other continent.

Overview

This paper attempts to construct an analytical framework for understanding the role of the ICC and ramifications of the recent African position, and the fate of the values, norms and principles that has been guiding them. The ICCs short existence has already created a number of concerns, mainly in Africa: Some genuine, others not.

In fact, there is so much apprehension in Africa towards the ICC these days-some of it quite justified-that anything resembling a defense of it is bound to make some people angry. But the complaint surrounding the ICC can cloud our perspective and distort international and regional policy.

1.    The Quest for Peace and Justice Issues in Africa: the Post-cold war Era

The post-cold war era is characterized by an unprecedented spread of democratic values and practices. This is linked to the phenomenal spread of democratic aspirations in Africa. The ICC didn’t come in an ideological vacuum. This should be the first major consideration of any discussion on the ICC and Africa. The idea of permanent ICC has a long history. The real underpinning was the triumph of the global liberal project. This, among others, led to a multiplicity of institutions and efforts aimed at creating peace, promoting reconciliation and justice, and a host of other related activities in the African continent. A highly influential liberal norm is the Responsibility to Protect. As with democratization, this has contributed to developing and entrenching norms and building institutions of justice and reconciliation.

The doctrine of Humanitarian Intervention as applied in former Yugoslavia and Kosovo and the remorse on the Rwandan Genocide further highlighted the need for some kind of international tribunal. The recurring view was that a crime committed in one country is a crime committed to the international community.However, there was a gap in the international legal system and the ICC was an attempt to fill that gap. This resulted in the Rome Statute of 1998.There was a need for a permanent international institution with a power to try individuals with the most serious crimes. The ICC went into operation in (60 ratifications) July 2002; and by July 2007 104 countries were signatories. Many African countries ratified the treaty. This is another important consideration for any sensible debate on the ICC.

The first two cases referred to the ICC happened to be African, brought by Uganda in January 2004 and the Democratic Republic of Congo/DRC/ in March 2004.Though there were timely and circumstantial reasons for this, the Court stumbled on its approach. This includes, sometimes looking for the wrong guys and small fishes (as in DRC and CAR) or playing into the hands of governments as in the case of Uganda. This led to the complaint that the ICC failed to live up to the expectations of Africans. Some say the Chief Prosecutor misread the hopes and expectations of Africans leading to the Court’s loss in credibility and legitimacy. Meanwhile, the critics were sometimes contradictory. Some accuse the ICC of being against African governments, but at times others say it has been used by some governments for narrow political agendas. In some ways the Court is accused of doing little, at other times for pushing too much. The lack of coherence aside, the arguments and counter-arguments with regard to the ICC deserve serious consideration.

2. Against the ICC

There are three core claims of wrong doing pointed to the ICC.

1.    The first is that the Court has a selected focus on Africa. While the ICC received more than 2,000 communications regarding crimes, the only cases into which investigations has been conducted are in Africa. This is disputed-but even if it is true, so what? It is also claimed, by some, that the Court’s conduct violates sovereignty of African states. Hence, it furthers unequal power relations; punishes poorer nations.
2.    It devalues traditional mechanisms and promotes a Western form of retributive justice. It complicates the search for peace. It works against the possibility of peace sensitive justice.Preemting peace agreements as in Uganda and Darfur/Sudan?
3.    Unnecessarily promotes the perception that Africans are inclined to shield criminals. Is it Africans or African governments? This needs to be qualified.

The arguments against the ICC are more or less the above; some political, others academic, evidently making a more measured assessment of the ICCs relevance for Africa necessary. Some of the criticism has struck me as guided more by emotion, misplaced fears than sober reading and careful analysis of the situation surrounding the ICC.

3. Counter Arguments

1.    A strong argument in defense of the ICC is that the Court is mainly and basically an African Court, extremely beneficial to Africa as African signatories are quite substantial (29 out of 53 countries).the ICC was not imposed on Africa; was created and supported by Africa for Africa. And sovereignty is not absolute. It comes with responsibility. How does focusing on injustices in Africa and try to address them reinforce unequal power relations? It is incomprehensible.
2.    Crimes tend to be higher in Africa than in other continents; probably related to violent conflicts. So, it would be correct and normal to focus on Africa. Let’s stick to the facts. Most of the crimes are committed by states or on behalf of states by their agents, apart from Joseph kony (by men or women, not by abstract entities, related to the state). How did Africa become the focus? Was it by a grand design of external actors? Absolutely not. Quite honestly, Africa decided in favor of the ICC and referred its cases to it; other continents have not referred themselves to the ICC.Africa itself asked the ICC to do justice in Africa. The US or any European country was not pushing for the referral of the Darfur issue. External actors did not push most of the cases. In fact the US wanted to stop this but since the move was supported by many African countries, it abstained from vetoing it at the United Nations Security Council/UNSC/.
3.    The court considers (can seize) only crimes committed after 2002.
4.    Except Darfur most of them were referred to the ICC by African governments themselves
5.    Even, the UN referral on Darfur was based on the following legitimate route:
•    First there was UNSC resolution 1564 of September 2004; then this was referred the Darfur case to the ICC in March 2005(the first time that the SC had made such a decision and the first time that the US compromised its adamant opposition to the ICC).
•    Findings showed that the Government of Sudan/GoS/ and militia were responsible for serious violations of international human rights law amounting to crimes under international law. The case was successfully transferred to the ICC.
•    There were also suggestions on a Truth and Reconciliation Commission and/or a Criminal Court to be established to look at the matter. Nonetheless, the UN’s view was that the two processes need not be mutually exclusive.
6.    In Kenya it was basically a popular demand. Around 60% of Kenyans want the ICC to involve. Most Kenyans don’t trust their own justice institutions.

As far as the issue of justice and peace is concerned the debate is still going on. It is easy to say the ICC delayed the search for peace than to corroborate it through actual research. Again it is an academic issue. There has never been any case that the ICCs engagement gutted already existing Traditional Mechanisms of Conflict Resolution. Many African actors themselves (such as the Government of Sudan) are more than capable to complicate the search for peace in their own countries.

However the problem is bigger than the ICC and is more a global, continental and regional than an institutional phenomenon.

4. The ICC and its Enemies
Though it has damaged its credibility by mishandling some of the cases, there are strong arguments in favor of the ICC. The case for the ICC is much stronger than the missteps made by its Chief prosecutor. We need to step back for a moment and try to understand the reasons that led to the creation of the ICC and regional institutions/instruments/processes of justice, and the danger facing these processes right now. There are specific reasons why the enemies of the ICC are highly mobilized and galvanized at this moment in time. It is becoming apparent there are at least three key issues that at present need watching. The first is global; the second belongs to the continental realm and the last refers to the evolution and survival of a special kind of national governments in Africa.

Indeed, regional and global trends are not encouraging. New reconfiguration at the global level have, to some degree, led to a crisis in the norms and institutions built up during the brief era of global liberal hegemony. One way of understanding this phenomenon is to look at the implications of the current Asian challenges to unipolarity.While China’s strategic interests in Africa are undeniable, the potential longer-term impact of its increased role and method of engagement is yet to be critically assessed by African countries. The US role on the other hand is being subjected to closer scrutiny. Not surprisingly, the crisis on norms, values and principles has deepened over the last couple of years. This coupled with the mistakes of the ICC seem to have given an opening to the opponents of the ICC in Africa. As a consequence of this pro democracy and human rights forces in Africa are on the retreat and the principles and norms that guided governance and justice are under assault. And the following analysis on the African (regional) situation directly flows from the above.

At present, the contrarians to the ICC are relatively powerful. They have learned over the years to come up with new tactics, new approaches and strategies. What is being threatened is the political foundation for justice and peace. New type of (group) of governments have emerged, challenging (at least convinced to do that) the democratic norms, principles and values built over the years. Thus, the processes and principles that have guided Africa’s regional institutions and processes (AU, NEPAD-APRM) are under threat from within Africa. The newly awakened forces can easily exploit the new global situation to weaken human rights movements.
•    These governments are largely authoritarian but not authoritative.
•    Largely belong to a unique mode of governance (liberation movements in power) Africa has ever seen in recent years. Assertive but militarized governance.
•    The post-conflict scenario/context which was conducive for governance and human rights movements is gone. The human rights space could not be the same as in countries emerging from conflict.Becouse,
•    Most of these ruling parties have entered a process/stage of consolidation (from transition and experimentation), hence able to thwart foreign pressure. The nature of political and economic consolidation greatly impacts on Africa’s inter-state system and international relations.
•    They have effectively adapted to the Africa’s international system-partly because they played a role in creating it- and created confidence to deal with international pressure. This may be good in many respects, but often used for wrong reasons.
•    This coupled with new economic imperatives-internal revenue generation capacity (surviving the storm of the financial crisis) increased the confidence and standing of many African governments.
•    Most importantly, they have developed the ability to exploit the weaknesses, vulnerabilities and agendas of democracy and human rights in general. What we see is ‘fast learner governments’ exploiting the vulnerabilities, weaknesses and mistakes of the global north/global context for narrow political agendas.
•    Smartly use the African ownership agenda for peace making to thwart external pressure for democracy, human rights and good governance. African ownership for ‘repression’?
•    There is a void in a continental leadership that previously guided the new continental governance architectures (AU, NEPAD).The primary drivers of those processes, instruments and principles have retired from active politics and leadership.
•    They use economic development as a pretext to delay, postpone, and relegate democracy and human rights to a side show. They effectively argue in favor of economic development at the expense of democratic dispensation.
•    Some pursue a clearly articulated ‘Developmental State’ agenda, ridiculing democracy and governance issues. Reinforcing this by the China Model. Compounded by the tendency to view autocracy as a prerequisite for development?
•    They are highly combative, confident and sophisticated in their response to accusations of violating human rights (For instance preparing their own reports or creating their own Civil Society Organization/CSOs/i.e. uncivil society).
•    The old way of deny, arrest, attack and discredit has been slightly changed. Ensuing diversification and sophistication of responses.
•    New approaches have caught international organizations unprepared; the international community has yet to adapt to the new situation.
•    On the other hand the new economic reality is not conducive for independent local CSOs, NGOs.

In a way it is good that some African countries have performed well economically; built confidence on themselves; exercise their independence which is important (the goal is noble); on the other hand this new reality and confidence is being used to reverse the political gains achieved thus far. Even some countries, such as Botswana, are on the retreat (or at least they are quite). Clearly, the pro-ICC and pro-democracy forces are on the defensive.
•    So both political and economic preconditions are not ripe. On the otherhand, there is inability to mobilize resources for human rights and democracy movements at the national and local levels. Most of the political drive is not there.Alas, cronyism and oligarchy prevails. Most of the wealth generation is political and criminal, not conducive for philantropism of this nature.

In short, there are new developments in Africa that need serious consideration. How much does it matter?

5. Human Rights/Justice at Cross Roads

New global environment, new continental context, new type of governments and national political dynamics, missteps and embarrassments (double standards)of external actors such as the ICCs,all add up to the unfortunate situation we are in now. Democracy and the rule of law are being subjected to a process of relentless shrinkage. Now, the enemies of the justice and democracy projects such as the ICC are on the offensive, and we are grappling with a wounded international governance and human rights regime. Nationalist and pan-Africanist (populist) movements use the rhetoric of African ownership and solidarity to deal with the problems of external actors and the influence of international instruments. To the extent that it is genuine, this could be very helpful. The populist rhetoric does something altogether different today. It fires up emotions by appealing to national sovereignty, African ownership and African solutions, all in the service of neutralizing democracy and justice not in achieving them. It gives voice to those who feel they are being cornered by international instruments to govern well and held accountable in their respective countries. The message of the enemies of the ICC is clear: we want to be left alone.


6. How the rush to criticize the ICC is clouding our judgment and distorting international/regional agendas.

Despite the political nature as well as minor operational/administrative missteps of the ICC, its creation and engagement marks a new era of providing justice in Africa. I am not sure what purpose is served by bashing and ridiculing the ICC, atleast from the perspective of the African people. The ICC is not imposed on Africa. Let’s not portray that. First it is not true. Second it is dangerous.

Yes, the ICC made some mistakes in approach in its early days; yes its special prosecutor made several missteps and misstatements, probably he was not the best choice for the post at that historic phase of the Courts’ existence; yes some African governments referred their enemies to the Court; yes the there were few African legal experts in teams dispatched to Africa and so on and so on; and obviously there is room for improvement and most of the problems are operational/administrative in nature, but this could not be the reason to discard the ICC all together. That is that.

Worse, the mistakes of the ICC gave African leaders the openings to challenge, ridicule and belittle the whole cause. Besides,some of the criticisms towards the ICC are just symbolic; and indeed perceptions matter (The fact that the Court is in Europe or some of the guards shown on TVs taking suspects from Africa to The Hague are not black Africans and so and so forth) but let’s not ignore the real issue. Some so-called Pan-Africanists may abhor and exaggerate the meaning of these symbolic issues and the ICC may need to attend to these sensitivities. Probably the ICC may need to open chambers/branches in Africa to avoid such criticisms. Many avenues could be explored. And all these could be easily overcome. However,the real challenges to the ICC lie elsewhere.
•    Eight warrants of arrest remain unexecuted, among them the most important is related to President Al-Bashir of Sudan
•    Obstacles to secure permit and do investigations in many countries
•    Few states domesticating the law and enact legislation at the national level. These are practical challenges.

Nonetheless, the ICC and its focus on Africa serves as a perpetual notice to criminals, tyrants and would-be tyrants that there is a tribunal and judges constantly watching on them. They will always be put on notice that there are judges in The Hague waiting to try them. It serves as a reminder, a deterrent, though largely symbolic.

And I am in favor of most of the genuine concerns raised by Africans, but it would be a mistake to push them without limits and make them political. Improvements and corrections on the approaches of the ICC going forward are the best avenue for our concerns. Outrage and political opposition only creates an atmosphere of uncertainty and capriciousness around international justice, democracy and stability in Africa. If we want to understand the real reason behind the vicious criticism and opposition towards the ICC is about, we first need to understand what it isn’t about. It certainly is not about reversing impunity and dictatorship. The ICC needs to be supported by Africans and it will survive the storm. The reasons are simple.

7. Africa needs the ICC.
Africa, due to global power relations, is the beneficiary of multilateral approaches to peace and justice. It will continue to be.Besides, the nature of violent conflicts, the culture of impunity, lack of accountable and responsible regimes, lack of strong regional and national institutions, makes the ICC all the more pivotal. More than any other continent, Africa needs the support of the ICC to gradually establish its own workable and coherent human rights regime/architecture. Arguing in favor of regional Courts is legitimate, but at this stage it is not a substitute for the ICC.

•    For meditating the most difficult problems and implementing peace agreements or enforcing decisions Africa still usually looks to Europe and the U.S. (sometimes bilaterally, sometimes under a UN umbrella). Thus far, Africa’s  aspirations exceed its capacities, with the consequence that its prospects for success rest heavily on the extent to which it can mobilize and streamline external support, the support and vigilance of international instruments and the attention from the UN and global governance institutions as well as the energies of sub regional organization, governments and citizens.
•    Besides, the process of creating a robust human rights regime and human rights movement at a continental level cannot be separated from the myriad processes of establishing democracy, good governance, institutional capacity and peace across the continent. In the long term, justice is best guaranteed by democratic, accountable and stable governments presiding over sustainable development. This is a major pre-requisite for understanding the ICCs profile and its current challenges in Africa.

The African state and regional organizations being what they are, the ICC is crucial for Africa than any other continent. Though the effectiveness of the ICC and enforcement of its indictments is still hotly debated in Africa and elsewhere, what is no longer as much in dispute is its relevance to Africa. Pointing out some sorry truths of the ICC is one thing. And it is unfortunate and self-defeating, and it has fed the capacity of the Courts enemies. One can only hope that the concerns and criticisms voiced by Africans will make the ICC more responsible.