David Bosco is an assistant professor at American University’s School of International Service. His book on the International Criminal Court, “Rough Justice,” will be published this fall. Follow him on Twitter: @multilateralist .
Almost 15 years ago, delegates from more than 100 countries gathered in a crowded conference room in Rome, cheering, chanting and even shedding a few tears. After weeks of tense negotiations, they had drafted a charter for a permanent court tasked with prosecuting genocide, crimes against humanity and war crimes around the world.
Kofi Annan, then U.N. secretary general, cast the new International Criminal Court in epochal terms: “Until now, when powerful men committed crimes against humanity, they knew that so long as they remained powerful, no earthly court could judge them.”
That earthly court is now rooted. Its glassy headquarters on the outskirts of the Hague houses more than 1,000 lawyers, investigators and staff members from dozens of countries. Judges hail from all regions of the world.
But for an institution with a global mission and an international staff, its focus has been very specific: After more than a decade, all eight investigations the court has opened have been in Africa. All the individuals indicted by the court — more than two dozen — have been African. Annan’s proclamation notwithstanding, some very powerful people in other parts of the world have avoided investigation.
The court began its work in Uganda and Congo, where it focused mostly on crimes by militia groups (one key militia leader accused of crimes in Congo surrendered to the court this month). In 2005 came a major investigation into allegations of genocide and ethnic cleansing in the Darfur region of Sudan. Then the court launched inquiries in the Central African Republic and Kenya. And in 2011, the prosecutor opened an investigation of violence in Ivory Coast.Around the same time, the ICC jumped into the Libya imbroglio, ultimately indicting Moammar Gaddafi, his son and the regime’s intelligence chief. Most recently, the court announced its intention to scrutinize atrocities in Mali.
African leaders have taken note of the ICC’s intense interest in their continent. The backlash swelled after the court indicted Sudanese President Omar Hassan al-Bashir in 2009. Many African officials argued that the court’s intervention would torpedo chances for a negotiated solution to that country’s conflicts. Several African governments pushed the court to reconsider. The African Union, which represents more than 50 nations, even instructed its members that they had no legal obligation to arrest Bashir. Malawi’s president complained that “subject[ing] a sovereign head of state to a warrant of arrest is undermining African solidarity and African peace and security.”
To this day, the A.U. has refused to allow the ICC to establish a liaison office at its headquarters. There are even plans for an African criminal court that might displace the ICC.
Former A.U. chairman Jean Ping has suggested to journalists that the court is a neocolonial plaything and that “Africa has been a place to experiment with their ideas.” At an African summit meeting in 2009, he accused the ICC of ignoring crimes in other parts of the world: “Why Africa only? Why were these laws not applied on Israel, Sri Lanka and Chechnya and its application is confined to Africa?”
Those kinds of complaints land mostly on the desk of the court’s prosecutor, Fatou Bensouda. Originally from Gambia, she was elected in December 2011 with strong support from African states and has made repairing the rift between the court and the continent a priority. Along the way, she has fired back at some of the court’s African critics, insisting that seeking justice for victims on the continent is hardly evidence of discrimination.
“All of the victims in our cases in Africa are African victims,” she has said. “And they are the ones who are suffering these crimes.”
The latest developments in Kenya may test Bensouda’s reconciliation efforts. In early March, Kenyans elected as president Uhuru Kenyatta, who was indicted by the court for crimes against humanity allegedly committed in 2008. There’s evidence that by making him appear to be a victim of a mostly Western-funded court, the indictment helped Kenyatta attract votes. A Kenyatta voter described the court to the New York Times as “a tool of Western countries to manipulate undeveloped countries.”
In the wake of his victory, Kenyatta’s lawyers demanded that the court dismiss the case against him, while the ICC prosecutor insisted that it would go forward.
Why is the world’s first criminal court picking on Africa? There are several explanations for the regional focus. Persistent conflict plagues several parts of Africa, and the continent hosts some of the globe’s weakest states. Dozens of African countries chose to join the court, giving the institution broad jurisdiction over violence inside their borders. Congo, Uganda, the Central African Republic and Ivory Coasteven explicitly asked the court to investigate atrocities on their territory.
Asian and Arab states have been much more reluctant to join, and that has created an uneven jurisdictional landscape. The court cannot reach inside Syria or Sri Lanka, for example, but it can investigate crimes in the Central African Republic, Congo and Mali. (The United States has not joined the ICC, limiting the court’s jurisdiction over U.S. officials or troops.)
The U.N. Security Council does have the power to expand the court’s reach. By “referring” a case to the ICC, it creates jurisdiction even over states that have not joined the court. However, in the cases when it has done so — Sudan and Libya — it’s given the court more room to operate inside Africa. The council has declined to do the same in Syria, Sri Lanka, Pakistan, Iraq, North Korea and other non-African states where violence and repression are endemic.
Great-power politics are the key here. China has a veto over Security Council action and wants the court to stay well away from North Korea, for instance. Russia will not permit an ICC investigation in Syria. And when violence in Iraq was at its most intense, the United States would have blocked any move to give the court jurisdiction there. A stray comment by an Iraqi minister in 2005 suggesting that the country might join the ICC produced nervous phone calls from U.S. diplomats. They got the assurances they wanted: Baghdad would not become a member.
Much of the responsibility for the court’s skewed caseload therefore falls outside the institution — but not all. The court has chosen not to open several non-African investigations that it could have taken on. As a senior Rwandan official has argued: “There is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there.”
Afghanistan is the most glaring example. Thousands of civilians have been killed in that country since the court began operating, most by the Taliban and other extremist forces but also by NATO troops and aircraft. The court has not moved to investigate. The ICC also stayed out of the 2008 Russia-Georgia conflict, which produced thousands of deaths and injuries and well-documented war crimes. It has not opened a full investigation of rebel and paramilitary violence in Colombia. The prosecutor’s office has moved extremely cautiously on accusations against Israel by the Palestinians, who attempted to give the court jurisdiction in 2009.
Still fragile, the ICC has no desire to provoke Washington, Beijing or Moscow. A full-blown confrontation with a major power could threaten the court in ways that tussles with Sudan and Kenya do not. It’s not so much that the court is biased against Africa as that it is reluctant to meddle in cases in which the geopolitics are intense. But the result is the same: stricter justice for one part of the world.
David Bosco’s previous Outlook essays include: