International Justice

CJ354 Endicott College

Is the ICC discriminatory towards Africa?

In keeping with this week’s concentration on the ICC, I found this article from the New York Times Book Review, which is to be published next week.

This article addresses the claim that the ICC is discriminatory towards African leaders, as it has only prosecuted Africans in its 11 year history.  This accusation is particularly applicable today, as the ICC is encountering resistance from the Kenyan Government during their prosecution of their former President, Uhuru Kenyatta, for the 1,100 murdered and 650,000 displaced during the elections in 2007-2008.  The Kenyan Government has appealed to the UN Security Council and the African Union and sent diplomats to various African nations in an attempt to incite a mass withdrawal of African participants in the ICC, a move which would undoubtedly cripple the ICC; of the ICC’s 122 participating states, 34 are African.

The author of the article, Kenneth Roth, lists the many reasons that the ICC has only prosecuted Africans until now: many African nations enlisted the assistance of the ICC to try their former leaders, the high level of support the ICC has been shown by African nations, and the supposed predilection of its former chief prosecutor, Luis Moreno Ocampo of Argentina, to pursue arrest warrants rather than engage the court in long legal battles.  However, the supposition that the ICC is discriminatory towards Africans is a more concrete criticism of the ICC, which is interesting because the readings we did this week had to do with the tough balance that the court must walk between its own power and respecting state sovereignty, a more theoretical dilemma than the one presented by the Kenyans today.

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3 responses to “Is the ICC discriminatory towards Africa?

  1. agautam1 February 1, 2014 at 5:01 pm

    The issue of the AU mobilising against the ICC to prevent sitting heads of state from being indicted is an interesting one because of the effects it would have on the incentive structure of the ICC. Preventing sitting heads of state from being indicted would eliminate the fear that the ICC can prosecute in real time. One obvious problem with this is length of term for a sitting head of state. The leaders of Arab states before the Arab Spring had ruled for a number of years-under the AU’s idea this immunity would continue indefinitely.

    From the other side of the argument, though, the move comes from two fears. The first is the Africa bias of the ICC, as mentioned in the original post. The second follows from the assumption that the ICC is politicized. If it is, then it can be used to pressure regime change, which is not it’s mandate. Following this line of logic, it’s easier to see how this would make African, or indeed any, nation fearful of real time prosecutions during the reign of a head of state.

    The move to take the AU out of the ICC would be an interesting one because of implications with regards to the relationship between the UNSC and the ICC. Would, for example, this mean a great deal more referrals from the SC? If so, we might see a much greater role for the SC, something member states would likely be less than keen to do.

  2. gracen0te5 February 1, 2014 at 6:35 pm

    ICC Profiling?

    I can see the concern that comes with ICC “targeting” Africa, but I also think we should bypass this assumption to see structural inequalities that have made it so that Africa has been in ICC spotlight. What may seem like submission to ICC jurisdiction more than other continents may not be as unfair as media makes it out to be.

    Africa’s political landscape and violence in Africa’s key high-resource areas have spurred referrals from the states concerned, and it is not simply the ICC invoking its own jurisdiction in only Africa. ICC was formed to be MORE than an ethical idealism. The fact that it is intervening in Africa signals that there is a failure of states, and ICC is taking responsibility to fairly and impartially investigate and prosecute crimes within their jurisdiction. Looking at countries like Russia and U.S. – countries that have signed, but not yet ratified the Rome Statute, does this allow for more control for the states that have decided to do this?

    This blog mentions that the United States has not joined out of fear that Americans might be prosecuted. I think there is also the fear that the U.S. would not be able to remove itself completely from the influence of ICC.

    One of the main issues with ICC surrounds the topic of intervention. What ways can ICC work with the country’s judicial structures rather than going around and intervening (and getting “attacked”)? I think this requires a more detailed analysis beyond the geographical make-up of Africa.

    Association with the ICC is entirely voluntary, but I don’t think the main case is that African nations are having difficulty disassociating from it. There is more strong argument about assessing the legitimacy and fairness of ICC’s intervention in Africa. Critics of the ICC’s action in Africa have asserted claims based on morality, legality, and sociological legitimacy. I think the intervention of the ICC into various parts of Africa promote conversation about the sustainability of peace and justice in that particular continent, but it also brings me to question: How does the ICC comes up for review?

    This piece lays out some notable concerns about the reluctance of African nations to cooperate with the ICC which threaten ICC’s ability to effectively and successfully adjudicate cases:
    http://www.aljazeera.com/indepth/opinion/2013/10/unplanned-obsolescence-icc-african-union-2013109132928711722.html

  3. Alana Tiemessen February 3, 2014 at 9:58 pm

    It’s also worth noting that there are division within Africa re the ICC and nuances in the African Union’s position. African states were the second largest regional group supporting the Court in its initial negotiations (behind Europe) and victim communities continue to support some degree of ICC involvement. Also, the African Union position is more subtle than simply opposing the ICC and supporting impunity. The initial position called for national and/or regional courts to address accountability in Kenya and Sudan, as opposed to blanket impunity. The suggestion that heads of state be granted immunity until they office, however, is impunity and was rightly rejected by the ICC, United Nations, etc.

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