What are we to make of the fact that in its eleven-year history, the International Criminal Court (ICC) has prosecuted only Africans? Should the court be condemned for discrimination—for taking advantage of Africa’s weak global position—as some African leaders contend? Or should it be applauded for giving long-overdue attention to atrocities in Africa—a sign that finally someone is concerned about the countless ignored African victims, as many African activists contend? This debate is at the heart of one of the most serious challenges the ICC has ever faced. If the current attack on it succeeds, the court’s future may be in doubt.
The ICC was founded in 2002, under a treaty negotiated at a global conference in Rome, as an independent judicial body that would challenge impunity for the gravest international crimes—genocide, war crimes, and crimes against humanity. Unlike the International Court of Justice, which is also based in The Hague but settles legal disputes between states, the International Criminal Court addresses mass atrocities committed by individuals. To avoid prosecution, ruthless national leaders too often threaten, corrupt, or compromise judges and prosecutors at home, but those in The Hague should be beyond the reach of such obstructionism. The ICC is meant as a court of last resort for victims and survivors who cannot find justice in their own country and as a deterrent to leaders who have little to fear from domestic prosecution. The court has now been accepted by 122 states. The United States has not joined it out of fear that Americans might be prosecuted.
The issue of the ICC’s focus on Africa has gained prominence as it proceeds against its most powerful suspect so far, President Uhuru Kenyatta of Kenya. He is accused of directing some of the violence that shook his country in late 2007 and early 2008 following vigorously contested elections. An estimated 1,100 people were killed and as many as 650,000 were forced to flee their homes.
Kenyatta has appeared in The Hague voluntarily and has mounted a vigorous defense. But he has also used his position as head of state to turn every available weapon against the court in an effort to avoid prosecution. The Kenyan government has solicited demands from the African Union that he not be required to appear at trial. It has asked the United Nations Security Council to delay the case. It has pleaded with the governments that are members of the ICC to change the rules, and it has sent diplomats around Africa with the apparent aim of orchestrating a mass withdrawal from the court. None of these efforts so far has stopped the case from proceeding.
The ICC is hardly an institution that looks anti-African. Its largest block of members—34 of its 122 states—is from Africa, and they were central in negotiating the Rome treaty that established the court. Those thirty-four states—including Kenya—represent a solid majority of Africa’s fifty-four nations. The ICC’s chief prosecutor is an African—Fatou Bensouda of Gambia. She assumed the post in 2012 after having served for eight years as the deputy prosecutor. Africans serve among the court’s judges and the prosecutor’s staff.
Moreover, the ICC’s focus on Africa is largely not of its own doing. In five of the eight countries where it is actively prosecuting suspects—Uganda, Mali, Ivory Coast, the Central African Republic, and the Democratic Republic of Congo—the African state in question asked the court to intervene, often with significant encouragement from victims and local rights groups. In two other countries—Sudan and Libya—the UN Security Council asked that the ICC become involved. Only in the case of Kenya did the ICC act entirely on its own initiative.
In fact the focus on Africa largely reflects current limits on the reach of international justice. The court can exercise jurisdiction only when the crime was committed by a citizen of a member state or on the territory of a member state, or if the situation is referred to the court by the UN Security Council. Certain obvious non-African candidates for prosecution are from states that have never joined the court, such as Sri Lanka, North Korea, Uzbekistan, Israel, Palestine, Syria, or Iraq. The Security Council could have given the ICC jurisdiction over crimes in these cases, but the council’s permanent members have tended to shield nations they favor from the court’s attention. The UN General Assembly, where no state has a veto, lacks the power to grant the court jurisdiction.
Until the ICC began investigating African presidents, it had broad support from African governments. President Joseph Kabila of the Democratic Republic of Congo, for example, applauded the court’s pursuit of several militia leaders from eastern Congo who committed many abuses against civilians. His government has surrendered four suspects to the court, including Thomas Lubanga Dyilo, the court’s one conviction to date, and Mathieu Ngudjolo Chui, its one acquittal. Another Congolese suspect, the rebel commander Bosco Ntaganda, surrendered, apparently fearing for his life. The ICC’s charges contributed to his loss of power, as he became too much of a liability even for his own rebel group and his Rwandan backers.
Though still in its early years, with few prosecutions to its name, the ICC gains support from human rights groups and many ordinary citizens because of its promise of justice for the victims of mass atrocities. Its very existence can have a deterrent effect. Laurent Nkunda, the once high-profile leader of another vicious Rwandan-backed rebel group in eastern Congo, illustrates how the ICC might help to prevent atrocities. In 2007 and 2008, he regularly called Human Rights Watch’s Congo researcher, Anneke Van Woudenberg, to discuss his concern that the ICC might target him because of abuses committed by his troops. The ICC never seriously investigated him or Rwandan leaders, but his fear that it might do so is an example of how the court can discourage atrocities. He has been under house arrest in Rwanda since 2009.
For some African leaders, the court’s involvement in their country has engendered more mixed feelings. President Yoweri Museveni of Uganda, who has become one of the chief backers of Kenyatta’s campaign against the ICC, initially invited the court to prosecute leaders of the Lord’s Resistance Army, a ruthless rebel group that was formed in Uganda two decades ago and operates by kidnapping children and forcing them to fight. But several years after the court issued arrest warrants for the LRA’s notorious leader, Joseph Kony, and four of his deputies, Museveni’s attitude shifted. It seems he feared both that prosecution might complicate his efforts to negotiate peace with the LRA and that the ICC might someday turn its attention to him and his government.
Similarly the president of the Ivory Coast, Alassane Ouattara, seemed content when his rival, former president Laurent Gbagbo, was sent to The Hague to face charges of crimes against humanity. But Ouattara now does not like the prospect that the ICC might pursue atrocities committed by forces that supported him during the civil war that broke out after contested elections in 2010.
Some of the ICC’s problems are of its own making. The chief prosecutor for its first nine years, Luis Moreno Ocampo of Argentina, seemed more interested in issuing arrest warrants than undertaking the tough, less glamorous work of conducting rigorous criminal investigations. So far six of the thirty-one prosecutions he launched—three in Kenya, two in Congo, and one in Sudan—have been withdrawn, dismissed, or led to acquittal due to lack of evidence. (The acquittal is still under appeal.) The new prosecutor, Fatou Bensouda, has been building up her office’s investigative capacity. In addition, there are a few member states outside Africa where the ICC prosecutor has considered acting, but the issue has been under review for years without a decision on whether to open formal investigations. For example, in the case of Afghanistan—which theoretically could implicate US and other foreign troops there—the ICC prosecutor has cited difficulties due to security considerations and a lack of cooperation by key sources. In the case of Colombia, the existence of some domestic prosecutorial efforts has been a significant consideration, though the new chief prosecutor is concerned about Bogotá’s willingness to see justice done.
In its initial years, perhaps in an effort to establish itself and build political support, the ICC seemed to focus on widely despised figures who lacked a powerful constituency—people like the child-kidnapping Kony or the warlords of eastern Congo. That changed in 2009, when the court sought to arrest President Omar al-Bashir of Sudan for atrocities committed as he tried to quell the rebellion in the country’s western region of Darfur. Yet even Bashir is widely loathed because he presided over a series of scorched-earth counterinsurgency efforts—not only in Darfur but also in southern Sudan, where he fought against an ultimately successful secessionist movement, and against a separate rebellion in the south-central Nuba Mountains.
Today, although the ICC has issued an order for his arrest, Bashir is still in power in Khartoum. He has been trying to regain his legitimacy and thumb his nose at the court by traveling to various countries that promise not to arrest him. Often under pressure from local rights activists and media, among others, most ICC members have refused to play along, or have done so only halfheartedly, even after the African Union (AU) asked its member states not to surrender him. For example, this past July, Nigeria admitted Bashir to an AU summit but Bashir, apparently fearing arrest as Nigerian groups filed a court action, fled within twenty-four hours of arrival without speaking at the summit. In recent years, South Africa threatened him with arrest if he attended the inauguration of President Jacob Zuma, Malawi refused him entrance to an AU summit, Kenya blocked him from attending a regional summit, and he canceled trips to Zambia and the Central African Republic.
A handful of African states have been willing to receive Bashir, as has China. But since the ICC called for his arrest, his movements have been severely restricted and his international stature diminished. The UN Security Council never took up Sudan’s request to defer his prosecution. This past September, Bashir floated the idea of attending the opening of the UN General Assembly in New York. But amid calls for his arrest he canceled the trip when protests broke out in Sudan about local economic issues.