International Justice

CJ354 Endicott College

ICC and Bias Towards Africa

Many people such as Courtenay Griffiths, the chief defense lawyer for former Liberian President Charles Taylor, believe racism is a guiding factor of the ICC. However, just because most of the defendants on trial in the ICC are African does not mean there is an association between criminality and race. People believe the ICC is biased for reasons such as funding, state cooperation, ect. When taking a belief of bias one step further to the realm of deeming the ICC racists suggest that the ICC targets African situations because they are African. Is the ICC a neo-colonialist institution? Personally I do not think the ICC is a neo-colonialist institution. Thirty-three African states are signatories of the Rome Statue and members of the Court, clearly they would not have become members of the ICC if they felt it was constructed in such a way that the ICC would only select certain cases as opposed to others. African states have engaged with the court and leaders such as Kenyatta have met the ICC half way in terms of cooperation in trial proceedings. On the flipside the African states joined the ICC because it retained independence from the UN Security Council. Through the recent years the ICC has increased proximity to the political mechanisms of the UN Security Council. An example of the ICC becoming more dependent on the UN Security Council is taking on the Councils referral to Libya. Regardless of whether the ICC is racist or biased, the fact that African leaders view the ICC as biased is damaging to the image of the ICC. The ICC depends on state cooperation specifically for trying criminals. Although it is notable when you access the ICC’s webpage and there are sets of maps inferring situations of interest to the ICC the majority of these countries are African countries. In regard to case selection there is no case sitting before the court that could be dismissed as frivolous. There is reasoning and evidence of war crimes committed by African leaders, yet to what extent is there selectivity of cases amid African states. Does the ICC refrain from indicting states that have an intricate political situation? If the ICC were to refrain from indicting certain states based on power thus the fear of impeding peace in a nation, wouldn’t this be a bias?

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2 responses to “ICC and Bias Towards Africa

  1. gracen0te5 February 7, 2014 at 1:07 pm

    I have concern over the bias and “re-colonization” that seems to be occurring through the ICC, because technically ICC is a mirror of the European Courts. I must also note, however, that member states have granted the ICC the power to exercise jurisdiction on their territories and on all possible perpetrators of international crimes who are present on their territories, but this may have given unsuspected power to the ICC. If there is no other court system to turn to, what other options does Africa have? Politics makes this complicated. Many national courts may have more discreet political corruption/violence or they may simply be exercising effective primary jurisdiction that no attention is brought up to the ICC.

    From a practical standpoint, the Court would be incapable financially and logistically to prosecute thousands of perpetrators. At a legal standpoint, customary law limits the duty to prosecute those most responsible. In the Ugandan case, for instance, it would be simply impossible to bring before the Court all members of the LRA involved in perpetrating numerous crimes.

    From a common sense standpoint, it is normal to prosecute those most responsible and serious if the Court were to choose between those most responsible and other low-level perpetrators. If the ICC cannot prosecute all perpetrators, then international justice should pursue those most responsible for planning and executing international crimes. I don’t necessarily think it is Africa in target, but the fact that there are many members from the past who are associated with Africa brings more attention to Africa through its indicted people. This past history, however, should not deter ICC into looking towards many other nations with corrupt political systems.

    Even if ICC cannot intervene, I think that there could still be an international presence, influence, and ongoing discussion surrounding those countries that have signed but not ratified/neither signed nor acceded. I can see plenty of concern surrounding UN member states, which have neither signed nor acceded to the Statute, but ICC is not necessarily the best solution to bringing justice.

  2. aoforiappiah February 10, 2014 at 2:31 am

    First, I’d like to comment on the ICC’s alleged racism toward Africa. Deficiencies such as lack of established legal institutions and unwillignes by states to cooperate do appear to be the primary reasons why all of the ICC cases have been in Africa. That being said, I do think the question of racism is a valid one. Alleged racism doesn’t have so much of a pull when you consider situations with mass atrocities such as Darfur or Congo. However, I do wonder when the atrocities are on a much smaller scale such as in Kenya or Ivory Coast. Even the time span in which these atrocities were committed were much shorter. That being said, Bensouda is currently conducting preliminary investigations in Georgia, Afghanistan, Colombia, etc. For me, the order in which these investigations were approached is strange. The situation in Afghanistan has been occuring for quite a time, however, there are the US, UK, and possibly other powers to contend with. Thus, in the case of Afghanistan it’s understandable that there has been a delay in initiating investigations. And as the documentary we watched illustrates, Colombia inhabits an interesting position because it does have the legal institutions for carrying out
    prosecutions. Two nations that really jump out in terms of large scale abuses are North Korea and Saudi Arabia. Unfortunately, North Korea is not a part of the Rome Statute, however,there is a preliminary investigation of North Korea which is set to conclude in March 2014. Saudi Arabia is not a party to the Rome Statute, and even if investigations were initiated, and sufficient evidence found it seems unlikely that the Security Council would refer the case. The U.S. is so hypocritical regarding Saudi Arabia, that it wouldn’t be surprising if it vetoed such a referral.
    Basically, if there are many other regions outside of Africa with large scale atrocities why have all the ICC cases thus far been in Africa? The documentary cited ease of prosecution, institutitional strength, and scale as considerations. Yet, it still seems questionable that all the cases were African, especially if we ignore cases that were referred by the African States themselves. It’s unsure whether it’s explicit racism so much as implicit racism. Regarding a country such as Saudi Arabia and its relationship to the West, there are major states such as the US willing to protect it. It’s pretty obvious that such does not hold true for African states and their leaders. Those within the AU can protect eachother, but ultimately there isn’t a larger state vying for them . Sudan may be one of the few exceptions. China’s somewhat cosy relationship with Sudan/Bashir has to do with business interests, though that relationship will probably only go so far. In other words, none of the larger powers really have any geopolitical interests in Africa, and not simply because of Africa’s lack of economic prosperity. As demonstrated by the West’s military interventions (or lack thereof) in Africa, lack of media coverage, etc. African lives don’t mean much to the West. The West would rather get involved in situations that gratify geopolitical interests. Basically, it’s not simply a matter of institutional deficiencies,etc. Africa’s geopolitical stance, which can partly be attributed to race, also makes it a target for the ICC. Therefore, claims that the ICC is a racist institution are a bit simplistic. Unfortunately, the ICC has to work within the bounds of the overall geopolitical system. Analogous to how there is no international police and thus it is up to states to enforce ICC arrest warrants, the stance of African countries within the geopolitical system makes them susceptible to prosecution by the ICC.
    Therefore, it’s a bit difficult to take claims such as Kenyatta’s seriously. His declaration that the ICC is a neocolonial court is a bit of a stretch. Moreover, his other supposed backers lack credibility. States such as Sudan and Uganda are complaining about the ICC, however, the problem is that proceedings have already been initiated against people within these states so it seems to be a matter of sour grapes. Moreover, the situations within Uganda and Sudan are very large scale. It’s doubtful whether these two states are considered credible actors on the world stage when such large scale atrocities have been committed, and attempts are being made to shield the perpetrators. Countries such as South Africa, Botswana, Ghana, and Senegal have not spoken out against the ICC, and ultimately these are the countries that ought to be looked at as models of stability and credibility in Africa. Not so much Uganda and Sudan. Kenya is technically on the list of African countries that is doing well. Thus, Kenyatta’s words do hold weight. The problem is that Kenyatta is launching attacks at the ICC because it had the “audacity” to indict him. He hasn’t exactly qualified his cries about neocolonialism. What interest does the West have in specifically targeting him? If anything, Kenyatta has some leverage because the West needs his help with Al-Shabab. So specifically in the case of Kenyatta the geopolitical situation does appear to be in his favor.
    Lastly, I’d just like to note that the Libya case might actually be the exception to Africa being targeted by the ICC. Yes, Libya is in Africa, however, it’s closer in culture and economic status to countries in the Middle east than those in Sub-Saharan Africa. Ultimately, when states such as Kenya and Sudan complain about the ICC targeting Africa are they discussing the entirety of Africa or merely Sub-Saharan Africa?

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