Three African countries – South Africa, Burundi and Gambia — recently started the process to leave the Rome Statute, the treaty that established the International Criminal Court, and others could follow suite. This is unprecedented in the history of international criminal justice, but the risk of a domino effect is low, as withdrawing from the ICC is costly, and not only in terms of image as it potentially involves retaliatory measures (such as cutbacks in EU or US development aid). At the recent Assembly of States Parties, even critical states like Kenya and Uganda, which have been behind the African Union’s backlash against the court for years, were either silent or supportive. Even though the current hemorrhage does not threaten the Court, it does confirm it has a serious image problem at the least.
For more on this topic, Just Security already has an excellent series of contributions. In the last issue of International Affairs, Chatham House’s peer-reviewed academic journal, I also published an article on “The African Union and the International Criminal Court: counteracting the crisis.” I will summarize and build on that article here, focusing on the recommendations I propose to repair relations.
1. Framing the narrative
My first recommendation is to wage the battle of narratives with greater vigor. That means, first, responding to the two main objections formulated against the ICC: the ‘Afro-centrist’ objection and the ‘peace vs. justice’ objection. Secondly, it means developing a positive discourse for the Court to employ, recalling the important role that African states played in its creation and development.
The main message to deliver in this battle of narratives is that the current backlash has less to do with neo-colonialism than with the selfish interests of a handful of leaders. Each of the incumbent heads of state has particular reasons for leaving the ICC, which have nothing to do with the stated neo-colonial critiques. In other words, what is needed is a political – not racial – reading of the African countries’ withdrawals. I developed this argument in an International Affairs’ blog post on the real motivations for ICC withdrawals.
These discursive elements are essential to recast the debate in more rational and accurate frames, but are certainly also insufficient to solve the diplomatic crisis. For this reason, the article also formulates concrete recommendations for practical action.
The ICC should investigate more cases outside Africa. The Georgian case is a good start—indeed, it is a turning point in the Court’s history, which must be emphasized—but it is certainly not enough on its own. The Prosecutor’s office must ensure that appropriate non-African cases go beyond mere preliminary inquiries. This is, of course, in line with the Court’s mission to conduct its work with independence and impartiality, and so should not be seen as a reaction to the AU’s behavior. That would be an admission of bias, which is not true. However, the gradual de-Africanization of the Court would deprive the ICC’s opponents of one of their most popular arguments, while strengthening the ICC at the same time.
From this point of view, it is probably not a coincidence that, at the very moment when it is being attacked on its African tropism, the Office of the Prosecutor declares that it has a “reasonable basis to believe” that American soldiers committed war crimes in Afghanistan. An ICC investigation against American soldiers remains highly unlikely at this stage – it would have to pass the test of complementarity to start with – and could be counterproductive. Such a diversification, desirable in the absolute, could indeed be fatal to the Court: an Afghan affair would likely open an American front, in addition to the African front and the Russian one that the Georgian affair may already trigger.
3. National-level capacity building
Among the objective factors contributing to the ICC’s Afro-centrism is the principle of complementarity, whereby the ICC can intervene only when a state is unable or unwilling to genuinely investigate and prosecute the perpetrators. This is a key feature, as many African states simply do not have solid judicial systems and therefore lack the capacity to act. Therefore, a third recommendation is that the domestic judicial capacity of states that are unable to investigate or prosecute crimes themselves should be enhanced.
Such a reinforcement of national jurisdiction depends upon assistance from the Prosecutor’s office in encouraging national proceedings when possible by providing information, working with officials and experts from the countries in question, and acting as a catalyst for action with NGOs and other actors. This is often referred to as “positive complementarity.” However, because mass crimes usually occur in countries with little or no domestic capacity to investigate and prosecute, often such a capacity must first be built. It then requires assistance from states and civil society to implement legal reform, capacity-building and infrastructure investment. Such a capacity-building should be understood broadly as including national proceedings based on universal jurisdiction and ad hoc internationalized or hybrid regional tribunals.
4. ICC-AU bridge building
Intermediary institutional structures should be established to increase ICC–AU cooperation. These could take the following forms:
– ICC chambers in Africa. The ICC could, for example, negotiate access to the ICTR (Tanzania), the Special Court for Sierra Leone or the Extraordinary African Chambers (Senegal). Regional venues, one in eastern Africa and at least one in western Africa, could provide the advantages of in situ trials (reducing the ICC’s “foreign” image and providing greater access to evidence, victims and witnesses) without the risks.
– An ICC liaison office at the African Union, such as the ICC has at the UN. This simple measure, supported by African civil society, would streamline relations between the two organizations. However, for the moment the AU has rejected this specific proposal.
– An AU–ICC cooperation agreement, such as the one the ICC has already signed with the UN and EU. An agreement project was finalized in 2005 but the deterioration in relations has not allowed it to advance.
– A mixed chamber of African and international judges in the African Court of Justice and Human and Peoples’ Rights (ACJHPR). It is important to show that the West is open to projects which go beyond the “national jurisdiction vs. ICC” binary. However, the Malabo Protocol is not acceptable, primarily because it attempts to establish an African Criminal Court consecrating the immunity of the entire ruling class. It is preferable to focus on regional initiatives such as the Extraordinary African Chambers, while acknowledging that the success of one case—Chad’s ex-ruler Hissène Habré was condemned to life imprisonment on May 30 2016 after an exemplary trial— depended heavily on Senegal’s political will and may not be easily reproduced elsewhere.
5. State parties and civil society
Finally, any strategy should rely on two pillars. The first pillar involves the ICC’s constituents: African states parties who support—or at least do not oppose—the Court. They should be encouraged to be more vocal at AU meetings and to exercise greater influence over the AU agenda, which has been dominated by a few opponents and non-states parties. At the same time, it should also be made clear that the relevant forum for discussion of the issue is not the AU, where more than a third of states are non-parties, but the Assembly of States Parties, which contains all and only states that have ratified the ICC Statute.
As for the second pillar: any strategy to defend the ICC should also draw on African civil society (NGOs, think-tanks, leading public figures). Important African voices should be encouraged to defend the ICC in the public debate, as Kofi Annan has done in recent months. The organization of an international conference on “Africa and international criminal justice” (broadly understood, so as not to restrict the subject to the ICC) by an African think-tank and/or a key ICC-friendly African state, such as Botswana or Senegal, could only help.
Each of these recommendation is additive. None of them alone will suffice. That said, a combination of some of them might enable the Court to steer through the rough waters ahead and deliver on its promise of justice in Africa and other corners of the globe.
The views expressed in this article are the author’s own and do not represent those of any institution to which he is or was affiliated.
[Image: Courtroom where former Ivory Coast president Laurent Gbagbo awaits the start of trial at the new premises of the International Criminal Court in The Hague, Netherlands. – AP Photo/Peter Dejong]