The nations of South Africa, Burundi and Gambia have all signaled their intention to withdraw from the Rome Statute, the court’s founding document, and as of recently, Russia has announced it intention to deactivate its signature, too. As you know, the court only has jurisdiction over the countries that have ratified the statute.
In the case of Russia, the rejection of the court is mostly symbolic, a snub after having been castigated by the UN over conduct in Crimea. However, the withdrawals have highlighted a deep rift in the African membership of the court and may have far-reaching consequences, including, many fear, a triggering of a mass exodus of those countries from the Court. African leaders have, on numerous occasions, articulated concern about bias against their continent. UN and ICC officials have over and over asserted that there is no such African bias, and that the court can and will prosecute offenders from any nation within its jurisdiction.
Critics, though, point to the fact that in its first ten years, the ICC’s investigations and prosecutions have all centered on conflicts in Africa, including the issuance of arrest warrants for two African heads of state. The truth of the matter is, there has been a pattern of investigating cases based out of Africa, a glance at the statistics on ICC indictments will show as much, and it's understandable that African political leaders would feel frustrated with what they perceive as a hypocritical system claiming to dole out justice. As we in the advocacy world know, there is more than enough injustice and atrocity to go around: plenty in Europe, the Americas and Asia as well in the African continent. So why have African countries seen the brunt of all international enforcement mechanisms? The explanation is multifaceted.
First, we must address a question of logistics. African countries account for 34 of the 124 ICC signatories; that’s nearly a third of the Court’s membership. If the ICC can only prosecute member states, then it makes sense that African nations should see a high volume of investigations. However, even if you account for that proportion, we shouldn’t be seeing the kind of statistics that we’re seeing now, with nearly all prosecutions being carried out against African countries. What are the missing pieces?
We must remember that many, many guilty countries have not even signed, let alone ratified, the Rome Statute, and are therefore out of the ICC’s jurisdiction. Nations who know they might be charged with war crimes, crimes against humanity, genocide or crimes of aggression have tended to stay far away from ratification: for example, our own United States. Why make ourselves vulnerable to those prosecutions unnecessarily? Although the ICC is keenly aware of atrocities carried out by the likes of America, Israel, China, North Korea and Saudi Arabia, for example, there is little the Court can do to hold participants accountable.
From this fact follows the logic that ICC and UN representatives have posited over and over again: the path to justice will entail a wider acceptance of the Rome Statute and ICC standards, not a narrowing of membership. Those countries that decry the African exodus from the Court must act to expand the reach of the Court and ensure that other nations and other continents are held accountable as well. It’s not that we should back off of African cases, but that we should be more fiercely pursuing other continents’ as well. Furthermore, it is very important to note that the vast majority of the African cases were brought to the ICC by referral from African countries, or by the Security Council. Even as the withdrawals of African nations began, referrals from other African countries (such as Mali) continued, requesting the Court to investigate cases on their own soil. To some, this invalidates the claims of bias; how can the ICC be accused of prejudice when the African cases before it have been referred to it by the countries concerned or by the UN? If anything, other regions of the world should be following Africa’s example, and pushing for the indictment of brutal leaders in their own territories rather than protecting them.
However, it would be a grave oversight and disingenuous to paper over the real genesis of the bias debate. We have to ask ourselves: even if, for example, the United States, Russia and Israel did ratify the Rome Statute, do we truly believe that investigations and prosecutions would be conducted and indicted in a fashion identical to those of African nations? Would there be the same kind of universal political support for the charges, a celebration of the riddance of corruption and violence? Arrest warrants? We are decades away from the kind of political will it would take to extradite US heads of State. Why are we so eager to see it done in other parts of the world?
Although the ICC aims to operate without bias, even international justice advocates are not exempt from ingrained prejudices from vestiges of colonialism. These prejudices, whether conscious or unconscious, have made prosecuting African nations an easy political maneuver, and their effects are manifest everywhere. Geopolitical superpowers like the United States, for example, occupy critical positions of power on the UN Security Council. (This privilege, of course, means that the Rome Statute’s safeguard to allow prosecution of non-members by way of a Security Council referral simply does not apply to the United States, or to Russia or to China.) Even if the Security Council’s veto loophole were somehow abolished, it’s difficult to believe that countries with the sort of political clout that the US carries would be treated equally in the eyes of the court. Cases from powerful nations are absolutely as critical, but the political hurdles to investigation and prosecution are exponentially higher. But where did that privilege come from?
It is critical to remember that our current geopolitical hierarchy was born out of a long history of colonialism and imperialism. “Developed” or “first world” nations that now occupy top positions in international or multilateral organizations, those that set the standards for international justice, did not simply land there. Nations that are referred to as “developing” or “third world” were not created lesser: they were looted and occupied, their people subjugated by foreign powers for centuries leading up to our modern political climate.
Our rhetoric regarding global order betrays our implicit bias towards and admiration of countries that have historically strong-armed their way into political power through the use of the type of atrocity and violence we now seek to condemn. Centuries later, even as we create new alliances, pledge aid and sign treaties, the specters of our past inform our current relations. The backbone of West Europe is made up of countries with more than their fair share of dark history. In many cases, African countries such as the Democratic Republic of the Congo (which has seen seven individuals tried by the ICC to date) were torn apart by the absolute brutality of European colonialism barely 100 years ago: that this nation is battling political instability is little wonder. Where infrastructure is weak, dictatorship, political violence and atrocity always find a home. Conversely, the nations who have been geopolitical powers since the 18th century are those whose pockets were lined often by the pillaging of the African continent. It is ignorant and reductionist to overlook this aspect of foreign relations, even as it applies to the formation of and the conduction of the ICC. It is certainly understandable, given this history, that African nations would be angered by a caseload that seems to convey that atrocities are committed only on their continent and by their nationals.
So what can we do? First and foremost, and as always, AMICC advocates for US ratification of the Rome Statute. Although the ICC has, in the past, been willing to take African cases exclusively, we must not find fault with the strong position the Court has taken in Africa, but rather the weak position it has taken in other regions. That is to say, rather than relaxing prosecutions in African countries, the Court needs to intensify its commitment to upholding standards of justice globally, and work to expand its membership and work around loopholes in its jurisdiction. The ICC has made a start on this by beginning preliminary examinations into UK actions in Iraq and American actions in Afghanistan, though the proceedings will take quite some time to develop. There must be a hard push towards prosecuting wealthy and white countries if we are to counter the claims of imperialism, colonialism and bias in the Court. If the ICC is to successfully resist populism, imperialism and neocolonialism, it must demonstrate absolutely to other international organizations and to the world that it will effectively and diligently pursue cases from major countries.
The United States and Europe cannot decry the African withdrawals from the Court while simultaneously expecting immunity for atrocities committed by their own nationals. There is no room in an international justice organization for neocolonialism. The ICC cannot allow itself or its caseload and standards of justice to be influenced by world powers, all of whom arrived at their position through subjugation of other nations. Moreover, the Court cannot give a free pass to those powerful countries on their crimes while we continuing to take cases from those countries who still have less political capital and clout.