Rooting the International Crime ’Africa Bias ’ in the Rome Statute

Rooting the International Criminal Court’s “Africa Bias” in the Rome Statute

Amanda Yuen

Abstract

In recent years, the International Criminal Court (ICC) has faced accusations that it has an ‘Africa bias’ or ‘African Problem’ in which the court selectively pursues cases and crimes perpetrated in Africa. This paper takes a look at this issue by analyzing the founding document of the ICC, the Rome statute, and how the compromises and policies laid forth in this document inform this so-called ‘African bias’. It argues that when the Rome Statute was written, political jockeying and Western biases that had already existed within international law created today's so-called ‘African bias’. Rather than stating that there is an active prosecutorial bias against African nations or leaders, this paper seeks to understand the embedded inequities reflected in Rome and international law more broadly. This fundamentally flawed structuring can be seen in Article 16 and the disproportionate power given to the UN Security Council, the types of crimes listed under ICC jurisdiction, and the complementarity regime generally.

In recent years, the International Criminal Court (ICC) has faced several challenges surrounding how and why it pursues certain cases. One of those accusations revolves around the court’s ‘Africa Bias’ or ‘African Problem’ in which the court selectively pursues cases and crimes within Africa. Since its inception in 2002, the ICC has become a notable venue for preventing and ending impunity for human rights violations on the African continent. Because of the history associated between the Western world and the African continent, critics have stated that the ICC’s selective pursuit of African cases is the newest form of Western colonial implementation and judgment on the Global South. These critiques primarily arose with the prosecution of sitting African Heads of State, which have been contrasted with the failure of the ICC to launch successful investigations or prosecute offenders from the United States or Russia for crimes committed in Afghanistan or Syria during the war on terror.1 We are certainly beginning to see some changes with more recent investigations, but many have said it is too little too late. Proponents of the ICC have responded to these criticisms in a variety of ways: Africa disproportionally has a large amount of self-reinforcing violent conflict, the ICC does not have absolute jurisdiction, and that the ICC is a politically and racially impartial institution. This paper will argue that when the Rome Statute was written, political jockeying and Western biases that had already existed within international law created today's so-called ‘African Bias.’ I am not arguing that there is an active prosecutorial desire to go after African nations or their leaders, but rather that reflected in Rome are certain inequities that have existed within our history and law for centuries. This fundamentally flawed structuring can be seen in Article 16 and the disproportionate power given to the UN Security Council, the types of crimes listed under ICC jurisdiction, and the complementarity regime generally.

The Formation of the Rome Statute

During 20th century conflicts, humanity’s most heinous crimes were brought to light, first through the formation of the Nuremberg and Tokyo tribunals after World War II. In 1948, the United Nations recognized the need for a permanent international judicial body to judge these atrocities. However, it was not until after the Cold War and the formation of ad hoc tribunals for the crimes committed in Yugoslavia and Rwanda that nations began to take more seriously the need to establish the International Criminal Court. In 1998, 160 states convened in Rome for a conference, the result of which was a treaty known as the Rome Statute of the International Criminal Court. The Rome Statute built off existing ideas of international law and established the court’s jurisdiction, Office of the Prosecutor (OTP), and additional procedures. States that ratified the treaty would become members of the Assembly of States which sets the general policies for the administration of the Court and reviews its activities. Major questions coming into Rome included the influence of the UN Security Council, which crimes the court would have jurisdiction over, and how the ICC would encourage state

cooperation without interfering with international sovereignty. The passage of widespread adoption of Rome was in major part due to the cooperation between two coalitions. The first was a coalition of non-governmental organizations, or NGOs, activists that represented the international civil society. This diverse and incredibly large coalition worked with the LikeMinded Group, a coalition of governments led by Germany. At the Rome Conference, the Like-Minded Group successfully corralled many African and Latin American states into supporting a robust statute and ultimately succeeded in establishing a supportive EU stance.2 Major opponents to the ICC- the United States, Russia, China, Israel, India, and most of the Arab World- did not form a unified front, instead choosing to individually advocate their opposition. 3 Currently, the ICC’s OTP has thirty-two investigations open in thirteen situations” or countries. Twenty-eight of these investigations and ten of these situations are in African countries.4 Five of these cases were self-referred to the ICC by the conflict country. It should also be noted that the current Prosecutor, Fatou Bensouda, is from Gambia.

The Changing Relationship with Africa and the ICC

In April 1999, the Organization of African Unity (which would later become the African Union) called on African states to ratify the Rome Statute. Ten years later, the African Union accused the court of targeting the continent and discouraged states from cooperating with ICC prosecutions. 5 State cooperation with the ICC is necessary to the success of the ICC as an institution, making this announcement a major blow to the legitimacy and public perception of the court in Africa. The question then becomes what brought about Africa’s changing relationship with the ICC. Africa played a key role in the years preceding the Rome conference where the Rome Statute of the ICC was adopted. African states were active throughout the negotiation process and were crucial in helping the “Like-Minded” bloc secure a political advantage. Individual states, regional organizations, and African NGOs supported the ICC. Tyanjana Maluwa, the legal counsel of the OAU, stated that Africa had a special interest in the establishment of the ICC because its people had for centuries endured human rights atrocities.6 This support manifested itself in the fact that African states represent the single largest regional bloc of ICC membership. Of the 122 State parties to the Rome Statute, nearly one-third (34 nations) were African states.7 This enthusiastic support of the OAU and the influence of the regional bloc during the ratification process is oftentimes where those arguing against the court’s Africa bias begin their arguments. However, “despite the suggestion that participation and ratification imply enthusiasm for all aspects of the ICC system, it is also important to realize that the making of the Rome Statute was a tumultuous process that involved negotiations, protests, pushbacks, and concessions. ”8. For example, OAU’s preference for a more inclusive list of crimes within the ICC’s jurisdiction and referrals from a UN General Assembly vote rather than the UN

Security Council were lost in the political jockeying of the conference. By simply looking at the participation of numerous African states in Rome, we ignore the very real fact that politically weak states’ demands were circumvented for politically stronger ones. The relationships and power dynamics between these different states existed because of historical power dynamics. They manifested themselves via political alliances and power within international institutions like the United Nations. In summary, Clarke, Knottnerus, and de Volder write: “Participation in the Rome Statute has not necessarily involved equality or the absence of state interests. Contrary to what many scholars assume, there is unevenness in the political structures of the ICC that remains central to the rule of law movement that it stands to represent.”9 Once the ICC became operational, Uganda and the DRC were the first two states to refer situations to the ICC in 2003 and 2004. These self-referrals appear to indicate a strong regional commitment to the issue of international criminal justice. This period of self-referral and AU cooperation with the ICC lasted till 2008 when the Prosecutor announced in July 2008 that he would seek to indict the sitting Sudanese president, al-Bashir. This led to active opposition by the AU which stated that sitting Heads of States should not be pursued while in office for stability’s sake. During a 2013 AU meeting, the prime minister of Ethiopia, Hailemariam Desaleg, and chair of the African Union stated that “ICC is hunting Africans”10 . At that point in time, the ICC had opened twenty-one cases in nine “situations” or countries, all of which have been in Africa (DRC, Kenya, Libya, Sudan, CAR, Mali, Cote d’Ivoire, and Uganda), so it seemed that Desaleg’s points were well evidenced. This evocative rhetoric was meant to recall images of colonial Western power dominating the African subcontinent and its people. By using this language Desaleg and other AU leaders began to paint the image of the ICC as a racially biased institution out to dominate and dictate sentences to African leaders. In October 2016, South Africa and Burundi withdrew from Rome. To me, the argument that the ICC is single-mindedly pursuing African leaders and “situations” or that the bringing of cases is fueled by conscious or subconscious racial biased is less interesting and less true. That is not the argument that this paper is trying to make. Instead, I contest that there are certainly historical underpinnings of Africa’s subjugated relationship with international institutions, international law, and other nation-states that can be seen in the Rome Statute. The ICC’s initial structuring under Rome was politically biased against African nations because it drew upon historical power dynamics that had long been established in the international order which favored Western powers and conceptions of international law.

The Arguments Against the “Africa Bias”

Those that argue that an Africa Bias does not exist have a variety of reasons as to why. As previously stated, many pointed to the initial enthusiasm of the OAU and the fact that African nations make up the largest geographic bloc of signatories as reasons why this bias

should be minimized. Proponents of the ICC also point to the representation of African leadership within the ICC as further proof of this lack of bias- the current Prosecutor being from the Gambia, and the fact that 25% of judges currently on the bench are African. I will briefly present and address the major arguments of these advocates, the first being that the ICC has primarily investigated African crimes because of the large amount of conflict that has occurred within Africa. Senior Advisor to the OTP Shamila Batohi addresses this point succinctly by stating that yes, all persons issued a summons or arrest warrants by the ICC have been African, but so have all the victims of these crimes.11 The ICC’s primary constituency has and will always be the victims of crimes and therefore it would be a disservice to the millions of African victims to not pursue the perpetrators of these heinous acts. Examples of these events of major atrocity include the Rwandan genocide (although this happened before 2002 and the establishment of the ICC), post-2007 election violence in Kenya, war crimes committed by the Omar al Bashir regime in Darfur, and finally acts of killing, torture, rape, and imprisonment committed in Burundi by Pierre Nkurunziza’s government. According to Professor Mude, the actions committed by these states definitionally fall under the jurisdiction of the ICC. Beyond just the types of crimes being committed, the state’s lack of involvement in the pursuit of justice for these atrocities had necessitated ICC involvement.12 A secondary but related argument is simply that the ICC is an apolitical and unbiased institution. The ICC is independent of the United Nations or other political institutions. In turn, any arguments against the ICC are political actors simply trying to utilize the ICC for their political benefit. This has been a common response to the accusations of racism or discrimination by AU leaders. Many say that these self-interested leaders are attempting to politicize a court to stand up to Western powers that their constituencies have unfavorable views of.13 This brings us to a third justification for the ICC’s focus on Africa- jurisdiction. There are questions raised in this argument- Why Africa? Why not other places? As to the why Africa question, ICC defenders point to the complementarian philosophy of the Rome Statute- the ICC should be a court of last resort when individual nations do not have the capacity or political will to hold perpetrators accountable. Bathohi points out that a determining factor in the furtherance of an initial inquiry is “local authorities are willing or able to pursue the matters of concern”14. She points to Guinea in 2009 as an example as to when the ICC took a step back from its investigation once realizing that the country had indicted its Minister of Health and head of presidential security for appropriate crimes. State capacity is, therefore, a determining factor in ICC’s investigative and prosecution process and for a variety of reasons, and comparatively African states’ capacity is weaker than in other locations. With regards to why not other states, individuals state that it is nearly impossible to initiate investigations when states are not treaty signatories. According to Articles 12 and 13 in Rome, investigations can be referred to as the OTP when the alleged perpetrators are a

national of a State Party or when the crime was committed within the territory of a state party. Additionally, states not party to Rome can accept the jurisdiction of the ICC and the UNSC can refer a situation to the OTP regardless of whether the nationality of the accused or the location of the crime is attached to a State Party.15 Some scholars have stated that perhaps we should focus more on this “Why not other states” question rather than a supposed bias against Africa. They point to blockages created by the structure of the referral process as well as the ICC’s hyper-reliance on the complementarian approach requiring constant permission of the state to investigate. My primary response to these three arguments is that they fail to contextualize Africa’s relationship with the ICC in certain historical and political inequalities. These, in some sense, normalized, inequalities manifested themselves in the formative documents of the ICC, as well as today. To begin with there are numerous historical traumas16 within the African continent that were created by Western states: the slave trade, extractive colonial policies, and the Cold War’s further exploitation of African states as pawns in a conflict of superpowers. Although not all modern conflicts in Africa are related to these historical traumas created by Western powers, most of them are. Therefore, the idea that Africa’s numerous conflicts are an “Africa problem” and therefore Africa should bear the burden of responsibility is a troublesome notion; Batohi’s argument feels precariously close to this line of thought. We also need to analyze the history of international law, which the Rome Statute built upon, as it applies to Africa. Mutua writes, “Africa’s identity in the era of modernity has largely been shaped by its encounter with the West, the normative home of international law…in which international law was used as a means of ordering and organizing the exploitation of the globe for the benefit of the North Atlantic communities”17. One example she gives is the roots of present-day territorial borders within colonialism and uti possidetis18 , international law’s exploitation of African resources and people. In short, international law was used to exploit Africa and Africans for the benefit of Western powers. To ignore the political power dynamics that have always existed within international law, and continue to exist within the ICC, would be short-sighted. The image of the ICC as a politically neutral and impartial institution is idealistic at best; the evidence of its politicization can be found within its very origins- the political negotiations made before and during the Rome conference.

Contextualizing the “Africa Bias” within the Rome Statute

To understand the root of this Africa Bias, we can analyze the structure and implementation of the Rome Statute- the founding document of the ICC. The systems and agreements that occurred because of this treaty have facilitated inequalities that continue a system of international law that favors the opinions and interests of Western states. It is not the individual court or prosecutors that are singularly biased, but the system in and of itself. Within the Rome Statute, these shortcomings can best be seen in the disproportionate power

given to the UN Security Council, the types of crimes listed under ICC jurisdiction, and the prioritization of complementarity.

The UN Security Council (Article 13b and Article 16)

During the creation of the Rome Statute, an important question was the UNSC’s relationship with the ICC. After some compromise, Article 16 was created wherein the UNSC could defer an ICC investigation or prosecution for twelve months wherein “that request may be renewed by the Council under the same conditions”.19 Additionally, as previously stated, Article 13(b) provides that the ICC will have jurisdiction over a crime envisaged in article 5 of the Statute if “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”20 . Even though not all members of the UNSC have ratified the Rome Statute themselves (i.e. the United States, Russia, China) the parties have substantial influence within the treaty and over nations who are signatures to the treaty. The UNSC’s decision not to defer the al Bashir case, as well as the non-referral of many nonAfrican cases, are some of the major criticisms lodged at the ICC and UNSC by the AU as to an “African bias”. Max du Plessis writes: “the international politics within the UNSC has infected the work of the ICC so that the Council has referred two African cases to the Court but has failed or refused thus far to refer any non- African cases…Questions have thus rightfully been raised about the impartiality and independence of [the ICC]… and whether political considerations, such as the ICC’s relationshipwith the US…have outweighed questions of law and objective considerations of justice… Byavoiding pain from [American and European backlash], the ICC has simply allowed for pain from another. And that pain –now inflicted by African leaders who in principle or out of self-interest are unwilling tobe the scapegoats for the international criminal justice project – is as deleterious”21 . The skewed power dynamics that have always existed within the United Nations, manifested through the power of the UNSC and its favoring of the Global North, have trickled into ICC dynamics. Unlike the OAU’s original proposal during Rome, that the referral process should be done via a UNGA vote, the power granted to the UNSC under Rome provides disproportionate power to a body that does not hold the interests of Africa nations. No African nations have a permanent seat on the security example and the UNGA is more representative of the interests of all nations where all member states get one vote. Moreover, the treaty unfairly allows for non-signatory nations to maintain an overarching influence on states that have agreed to abide by Rome. These power dynamics have long existed within the UN and international institutions now manifest themselves in the ICC.

Types of Crimes Under ICC Jurisdiction

In 1991, at an early stage of the drafting of Rome, the International Law Coalition adopted a Draft Code, which identified twelve crimes that could become part of the jurisdiction of the ICC. Four years later, however, a second draft of the code omitted many of these crimes including colonial domination and other forms of alien domination; recruitment, use, financing, and training of mercenaries; willful and severe damage to the environment; international terrorism; and illicit traffic in narcotic drugs22 . The ILC justified these omissions primarily because they wanted to prioritize widespread adoption of Rome and “avoid crimes that were too controversial or too widespread”23 . The four crimes currently under the jurisdiction of the Rome Statute are genocide, war crimes, crimes against humanity, and the crime of aggression. The Rome Statute built upon pre-established ideas of international law, particularly the ideas that were based on Western nations’ conception of the world. The enormous political influence held by Western nations, in comparison to African states, during the Rome conference was only furthered by the fact that international law favored their view of the world. When we think about how this relates to what crimes were chosen to be placed under the jurisdiction of the ICC, we can turn to Western international law’s focus on a) a focus on forms and consequences of mass violence, rather than on its origins and underlying structures and b) individual accountability versus collective social responsibility for crimes.24 This is therefore what was written into Rome. These focuses can be seen in the precedents set by the Nuremberg and Tokyo trials where the Allied forced chose to focus on specific consequences and individuals who they viewed as the worst offenders. These individuals and their crimes were supposed to be representative of the larger atrocities committed throughout World War II. This same logic is difficult to apply to the case of Africa. Many of the crimes committed in Africa have systemic or underlying causes, such as colonialism or environmental damage (conflict minerals/resources) that are absent from ICC jurisdiction. Additionally, the farreaching and social embeddedness of many of the conflicts makes it difficult to simply point to a single culpable criminal. The question of why African states did not advocate for these broader ideas of international law within the ICC brings us back to the concept of political dynamics within the Rome negotiations. International law favors precedent; to ask these nations to advocate for these broader ideas of law, would also ask them to construct new ideas of law, which is a large task to ask of already politically weaker states. The exclusion of these crimes that speak to more systemic structures and processes which consider the sociological aspects of violence did a disservice to the needs of many African states and victims and demonstrate how the ICC adopted Western notions of international law, rather than the international perspective it so often claims to demonstrate.

A Prioritization of Complementarity

In Article 17 and Article 18, the Rome Statute more clearly discusses this notion of complementarity in terms of admissibility of cases. Article 17 states that a case is inadmissible when it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. These concepts of “unwillingness” or “inability” are then further defined to what ultimately boils doing to state capacity and independence from influential politicians or military leaders. To quote Mbizvo, “the Office has a duty notto proceed to investigate when there are genuine national investigations or prosecutions. This is the principle of complementarity”.25 Ideally, this complimentary principle should help strengthen African states giving them the ability to essentially opt-in to the ICC or otherwise utilize domestic forms of justice to prosecute criminals. Du Plessis writes, “the very premise of complementarity allows African states to demand that the ICC defers to their competence and right to investigate international crimes”. 26 The complementary principle was meant to be a leveler and a tool for jurisdictional protection, but what it has instead become surrounded by is a politics of power. We can look at the 2011 case against Kenyan politician, and eventual president Kenyatta wherein the nation was the first to challenge a case based on admissibility. The ICC ruled in favor of the OTP saying that the Kenyan government’s investigation did not cover the same individual and substantially the same conduct as alleged in the OTP case. Dissenting opinions on this case and the resulting aftermath indicate that the OTP prioritized moving swiftly to go to trial, rather than “working cooperatively with the Kenyan government to build a solid national capacity for investigation and prosecution of the serious crimes committed”27, which is what a true prioritization of the complimentary principle would have called for. What resulted in Kenya was a failed case and the recusal of an ICC judge, a debacle that ultimately failed the crime victims’ desire for justice. This travesty only helped to delegitimize the court in the eyes of many Africans. Although there were certainly failures by the Kenyan state to cooperate with the ICC what is also evident is that there has also been a limited desire by the ICC to pursue this practice of positive complementarity. Because of the limited number of cases investigated outside of Africa, it is nearly impossible to see if there is a different application of the same principle to other geographic regions. What can be said though in the case of Kenya was that political expediency was prioritized over the core complementarity principles supposedly advocated by Rome. Hart writes, “The ICC was constructed with the idealistic goal to end the presumption of impunity for the powerful. Yet many stronger states that use violence against civilians have protected themselves from the court’s jurisdiction. Weaker states, vulnerable to violence, have opened themselves up to the court’s jurisdiction.”28 . Complementarity only works when all countries are given equal opportunity to demonstrate their capability to prosecute criminals, but what we see is an uneven approach to this concept, motivated by international power dynamics. Rome’s prioritization of complementarity is an idealized version of international cooperation,

rather than a realistic one. Rather than being the ICC’s demonstration of respect toward sovereignty, the complementarity approach has instead allowed for politically powerful states to justify their disillusionment and failure to cooperate with the ICC through the guise of sovereignty.

Conclusion

By understanding how the Rome Statute was written and plays out in the real world, we come to realize that within the broader structures of the ICC and international law, there are very biases that exist within the ICC that has led to the perception of an “African bias”. Like all treaties, Rome was negotiated by political actors whose goal was to create a system beneficial to their personal strategic interests. Because of the reliance on precedent and the power dynamics at the time of negotiation, the statute’s articles and ultimately implementation did ultimately favor Western notions of law and impunity. Regardless, if one believes in this “African Bias,” the “Africa Problem” does exist, meaning that there is a large amount of distrust that exists amongst African leaders, regional bodies, and citizens around the legitimacy of the International Criminal Court. Alternatives to the ICC such as the African Court on Justice and Human Rights as well as locally based tribunals such as Rwandan Gacaca courts have been promoted by the AU and restorative justice advocates as alternative methods to provide victims justice. When we begin to think about how to reimagine the ICC, the conversation should ultimately shift to how to rethink international law to become a more regionally sensitive body of thought. Reliance on precedent is understandable, but when precedent has been based on European ideas of dominance and power, it is also important to think about how we can construct new systems that speak to the values and needs of an international society.

Amanda Yuen is a junior at Johns Hopkins University majoring in International Studies and Anthropology.

Notes

1 Emmanuel and Hope. “Contentious Relationship between Africa and ICC”, 20. 2 Novak, Andrew. The International Criminal Court, 3. 3 Novak, Andrew. The International Criminal Court, 3. 4 The International Criminal Court. “The Court Today”, 1. 5 Novak, Andrew. The International Criminal Court, 101. 6 Dersso “Spotlight on the Limits of International Criminal Justice”, 62.

7 Dersso “Spotlight on the Limits of International Criminal Justice”, 62. 8 Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 12. 9 Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 12. 10 Mutua, “Africans and the ICC,” 48. 11 Batohi, “Africa and the International Criminal Court: A Prosecutor’s Perspective,” 50. 12 Mude, “Demystifying the International Criminal Court (ICC) Target Africa Political Rhetoric,” 181. 13 Mude, “Demystifying the International Criminal Court (ICC) Target Africa Political Rhetoric,” 181. 14 Batohi, “Africa and the International Criminal Court: A Prosecutor’s Perspective,” 53. 15 UN General Assembly, Rome Statute of the International Criminal Court, 8. 16 Mutua, “Africans and the ICC,” 49. 17 Mutua, “Africans and the ICC,” 50. 18 Mutua, “Africans and the ICC,” 49. 19 UN General Assembly, Rome Statute of the International Criminal Court, 10. 20 UN General Assembly, Rome Statute of the International Criminal Court, 5. 21 du Plessis, “Universalizing International Criminal Law,” 5. 22 Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 13. 23 Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 13. 24 Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 13. 25 Mbizvo, “The ICC in Africa: The Fight against Impunity,” 43. 26 du Plessis, Maluwa, and Annie O'Reilly, Africa and the International Criminal Court,5. 27 Brown, "The International Criminal Court in Africa: Impartiality, Politics, Complementarity and Brexit,” 156. 28 Hart, Laurel. “The International Criminal Court: Biased or Simply Misunderstood?”

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