From Paris to Africa

In the wake of the worldwide reaction to the Paris attacks — which included statements by world leaders, extensive media coverage, public gatherings, monuments lit in the colors of the French flag, and a torrent of expressions of sympathy on social media — a number of commentators pointed out that no such outpourings followed similar terrorist attacks in Beirut, Ankara, or Nigeria in the days before and after Paris. To be sure, there were differences in the attacks that could justify some variation in reaction, but at the same it was hard not to recognize that, at some level, lives were valued differently, that victims in Western capitals had counted more than those in Middle Eastern or African countries. The same point was made earlier this year when the Charlie Hebdo attacks in Paris resulted in massive media and political attention while attacks around the same time by Boko Haram in Nigeria, resulting in perhaps 100 times more deaths, were nearly invisible.

A similar discussion took place during the events leading to the rebirth of the international criminal justice project in the early 1990s, following a long period of inactivity after the Nuremberg and Tokyo tribunals. When the West failed in 1994 to act to stop the genocide in Rwanda, which resulted in more than 800,000 people being killed in a period of just a few months, some believed that it was also the result, in part, of an undervaluing of African victims. As David Halberstam later wrote in his account of that period, War in a Time of Peace:

Rwanda was, in the eyes of many nonwhite critics of Western geopolitics, the quintessential example not just of the indifference of Americans and Europeans to problems in Africa, but of the double standard used in Washington and other capitals to judge the value of African lives compared with Western or Caucasian ones. The West, or at least part of it, they believed, agonized over events in Bosnia, violence inflicted on Europeans by Europeans, but was almost completely unconcerned about violence inflicted on Africans by Africans. Africans were, after all, much more likely to be faceless, without, in Western terms, identities.

Later that year, the UN did act, establishing the International Criminal Tribunal for Rwanda (ICTR) to prosecute those responsible for the genocide, crimes against humanity, and war crimes there. Even this move duplicated, and no doubt was predetermined by, the Security Council’s decision the previous year to set up a similar court for the Balkans, the International Criminal Tribunal for the former Yugoslavia (ICTY), the first such court to be established since the Nuremberg tribunal. While the end of the Cold War created the possibility for the permanent members of the Security Council to agree on such an international court, the inspiration for the ICTY largely came from images in the summer of 1992 of emaciated prisoners in detention camps in Bosnia, images that vividly evoked the concentration camps of the Holocaust. Despite the mantra of “never again,” Europe was again the scene of massive atrocities against ethnic groups, provoking the Security Council to reactivate the precedent of Nuremberg in the form of the ICTY.

Once the ICTY was created, it was impossible for the Security Council to do anything less in response to the crimes in Rwanda. As then-journalist and now US Ambassador to the UN Samantha Power later wrote in “A Problem from Hell”: America and the Age of Genocide, “With a UN court in place to hear charges related to the killing of some 200,000 Bosnians, it would have been politically prickly and manifestly racist to allow impunity for the planners of the Rwandan slaughter, the most clear-cut case of genocide since the Holocaust. The Security Council thus passed a resolution establishing a tribunal to prosecute Rwanda’s perpetrators.” What if the Rwanda genocide had occurred before the war in the former Yugoslavia? Would there ever have been an international tribunal for Rwanda? That is doubtful.

Given this history, one might have thought it would be a triumph in later years when the International Criminal Court (ICC), created by the Rome Treaty in 1998 and operational as of 2002, focused its first investigations on atrocities in Africa. No longer would African victims of massive crimes be invisible. They would be front and center of the work of an international court comprised of prosecutors and judges from all regions of the world, including Africa.

But in fact the story has taken a surprising turn. Today, one of the biggest criticisms of the ICC within Africa is not that it is ignoring Africa, but that it is paying too much attention to the continent, and that the fact that all eight of its current investigations are in Africa shows that the Court is “targeting” Africa. (In October of this year, the Prosecutor asked for authorization to open an investigation in Georgia, its first outside of Africa.)

This attack on the ICC has largely been propagated by certain African leaders, and notably gained steam after the ICC brought charges against Omar Al-Bashir, the President of Sudan, and later against several Kenyan leaders, including Uhuru Kenyatta and William Ruto (who became President and Deputy President of Kenya, respectively, after being charged by the ICC). The African Union has taken up the cause, attacking the Court’s attention on Africa and insisting that Bashir should be immune from ICC arrest. Some countries, including South Africa, have even threatened withdrawal from the ICC. And at the ICC Assembly of States Parties meeting now taking place in The Hague, Kenya has gone so far as to seek to amend the Rules of Procedure and Evidence in order to torpedo the ongoing trial against Ruto. (Specifically, they are seeking to change the rule that has allowed the trial judges to consider the statements of witnesses whom the judges found were prevented from testifying through bribes or intimidation.)

Although these attacks on the ICC have been advanced most loudly by the very leaders (and their supporters) caught in Court’s crosshairs, questions about the Court’s focus on Africa have seeped into broader discussions and debates about the ICC. The Prosecutor and other Court officials are frequently asked about this issue when they speak around the world, and commentators and the media have increasingly talked about the Court’s attention on Africa as a problem. What, then, should we make of this turn of events?

I think the criticism misreads the history, and therefore misidentifies the problem. International criminal justice was born in Europe in 1945 at Nuremberg, and then reborn after a period of dormancy again in Europe in 1993 with the creation of the ICTY. In fact, if one considers not just the cases at the ICC, but the work of all of the international tribunals to date (the International Military Tribunal at Nuremberg, the Tokyo Tribunal, the ICTY, the ICTR, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the ICC), the continent that has seen the most persons charged by far is Europe, not Africa. It is an achievement that the international community has established a mechanism to bring justice to victims of atrocity in Africa, and it should be recognized as such. And it should be clear that attacks on the ICC for its focus on Africa do nothing to advance the interests of those victims.

The problem is not that the ICC is “targeting” Africa. Rather, the problem is that the Court lacks jurisdiction over many parts of the world where international crimes are occurring, such as in Syria and Iraq today. Some have argued that the Court should have opened an investigation in Afghanistan (a State Party where the ICC has had a preliminary examination open since 2007), an investigation more quickly in Georgia (the Prosecutor opening an investigation last month came seven years after the conflict), and now one in Palestine (which became a State Party this year and which retroactively granted jurisdiction to the ICC over the 2014 Gaza war). But in all three of these situations, there are major impediments to successful investigations, including a lack of cooperation of most of the major parties to these conflicts, which will inevitably result in a lack of access to potential crime scenes, witnesses, and evidence. Given that few cases would likely have resulted from hobbled investigations in these locations, it is difficult to imagine that simply opening investigations in these countries would have diffused the “targeting Africa” attacks.

As some have already pointed out, those attacking the ICC for an Africa bias should redirect their criticisms towards those countries that have refused to join the ICC or to find other means to achieve accountability for international crimes, either through domestic processes or other international or regional courts. They should also redirect their criticisms towards the UN Security Council, which referred the cases of Sudan and Libya to the ICC, but to date has failed to refer Syria or to establish an alternative justice mechanism for the massive crimes being committed in that country.

The problem is not that accountability is sought in Africa for crimes committed against Africans. That is a good thing. The problem is that there is a failure to pursue accountability in other places where crimes are also being committed. That is a failing not of the ICC but of the international community, and that’s where critics should direct their attention. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).