Since it was created in 2002, the International Criminal Court has publicly issued warrants for 36 people. The list is notably non-diverse; all but one (former Ivoirian first lady Simone Gbagbo) are African men.
Their crimes are serious. Bosco Ntaganda, a Congolese rebel leader, is about to go on trial for, among other things, the murder and rape of hundreds of civilians. Joseph Kony, the messianic Lord’s Resistance Army Commander, is charged with the abduction and enslavement of thousands of children in northern Uganda. Laurent Gbagbo, the former president of Ivory Coast, is accused of using security forces and militias to attack the opposition after a disputed election. The list goes on.
But equally shocking violations of international law have occurred elsewhere in the last decade. The death toll in the Syrian civil war continues to mount. The Islamic State is committing large-scale atrocities against ethnic Hazara and other Iraqi civilians. The North Korean regime continues to torture and starve its citizens. Rohingya refugees are risking death at sea to escape persecution and ethnic cleansing in Burma. And last month saw the anniversaries of both Uzbekistan’s 2005 Andijan Massacre and the cataclysmic violence that accompanied the end of Sri Lanka’s civil war in 2009.
The ICC’s seemingly single-minded geographic focus has led some to conclude that the ICC is “hunting Africans.” The breakdown in relations between Africa and the ICC came to a head this weekend. Sudanese president Omar al-Bashir, charged with genocide, crimes against humanity, and war crimes for ordering mass atrocities in Darfur, traveled to South Africa to attend the African Union summit. And then, despite calls for his arrest and a court order banning him from leaving, he was allowed to go home.
Now debate is swirling about what the failure of South Africa, an ICC member state, to execute Bashir’s arrest warrant means for the court’s legitimacy. Is it hopelessly compromised by racial bias? Can it repair its relationship with African governments, who make up over a quarter of its membership? Will it ever be a truly international criminal court?
But asking why the court is targeting Africans is the wrong question. The ICC has limited control over whom it prosecutes. Of the eight African countries in which the ICC is currently active, it only chose to intervene in two of them: Kenya and Ivory Coast. And the reason it was able to do so is that both of these countries signed the Rome Statute.
A quick refresher: The ICC is a treaty organization, which only has jurisdiction over the territory and nationals of its member states, and only when they are either unable or willing to prosecute international crimes domestically. There is one loophole: The U.N. Security Council can refer situations to the ICC, which is how the Libya and Sudan cases arose. But otherwise, the system operates on consent. And in fact, more than half of the situations currently before the court (DRC, Uganda, Mali, CAR I, and CAR II) are there because the governments involved specifically asked the prosecutor to investigate.
So the real question is: Why hasn’t the ICC been able to exercise jurisdiction over any of the non-African atrocities listed above? There’s a simple answer. None of these states have joined the ICC, and all of them are protected from a Security Council referral by a powerful veto member patron.
But there’s a more complicated story as well. Large numbers of African states signed up to the ICC. Asian and Middle Eastern states did not. The risks of ICC membership are obvious: Governments accept that their crimes may one day be the subject of an investigation. The benefits seem more nebulous: creating a desired institution or reaping the reputational rewards of being a human rights complier. For a certain subset of states, though, there’s another potential benefit: The ability to outsource troublesome internal conflicts to an outside institution. And indeed, all of the self-referrals have been initiated by governments struggling to contain insurgencies or political rivals.
The ICC was created to put an end to the presumption of impunity for the powerful. In practice, that’s not how it’s played out. Strong states that employ violence against civilians have insulated themselves from the court’s jurisdiction. It’s only weak, violent states for whom the appeal of the ICC as a political tool incentivizes opening themselves up to jurisdiction. Rather than a weapon of the weak against the powerful, the court has mostly been used as a weapon of the weak (fragile states) against the weaker (nonstate actors).
If the ICC’s ever going to get out of Africa, it will require that the international community grapple with these political realities, rather than simply demanding that the prosecutor look elsewhere.
Kate Cronin-Furman is a PhD candidate in Political Science at Columbia University.