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…
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