THE ICC, THE WORLD AND AFRICA

For some, the ICC, the most recent iteration of the international institutionalisation of ICL, is considered to be a bright light in the global fight to end impunity for perpetrators of pervasive and purposeful mass political violence, atrocities that ‘shock the conscience of humanity’ (Rome Statute 2002). To others, it represents the deeply flawed and unequal international political system and modern imperialism, a tool of superiority and imposition. The relationship between the Court and many African countries epitomises this ambivalence and mixture of opposing hopes and fears for the Court's promise to bring justice to a continent, and a world, fraught with atrocity and impunity. After 15 years of existence, the Court faces some real challenges regarding its ability to administer objective justice with its foundation solidly established and constrained by an unequal global system.

While the Court is playing an increasingly significant role in global politics and issues of global security, the international system is still one ruled by states, and the Court occupies an uneasy role both grounded in this system and at the same time aimed at pushing back against it. The Rome Statute was negotiated by states;Footnote ² therefore, the ICC is an institution created out of, and reflective of, an international system in which there is unequal power, with some states exerting far more influence than others to shape international norms and behaviour to their favour. The Court's aim is, in some ways, to undermine this unequal power and the unique political privilege of powerful states over others that are less so, and of state leaders over their citizens. It occupies a unique space in which it was founded and is supported by states, states willingly giving up some of their own sovereignty to place themselves under its jurisdiction.

Unlike the United Nations, which was created when African states were still under colonial rule, the ICC was created at the turn of the 21st century, when African states could fully participate in the negotiations of the scope and activities of the institution. With the aim that it would be objective and independent from politics and state interests, and despite what some powerful states desired – namely that it not ‘encroach upon their historic prerogatives’, the Court was created as an entity separate from the UN and independent of Security Council (UNSC) oversight (Schabas Reference Schabas2016: 23). Unlike the USA, which wanted to see ultimate control over the Court lie with the UNSC (of which the USA is a permanent member) (Schabas Reference Schabas2004), many African states were early and continuous supporters of an independent Court, recognising the need for such an institution to address grave abuses domestically and with hopes that the international institution would propel support for human rights globally and combat impunity (Mills Reference Mills2012: 405). Indeed, African states were some of the first to support the Court. In February 1999, Senegal was the first state to ratify the Rome Statute, and 17 African states were among the first 60 to ratify it, ‘thus contributing to the achievement of the threshold necessary for the statute to become effective’ (Procopio Reference Procopio2017). Today, more than two-thirds of the members of the AU are ICC member-states. African states were also the first to engage the Court, with Uganda, the Democratic Republic of the Congo (DRC), and the Central African Republic (CAR) all referring crimes committed within their own borders.

Most of the situations that have been investigated by the ICC were self-referrals, demonstrating to some ‘how the Court was deemed, by Africans themselves, a legitimate tool of justice’ (Procopio Reference Procopio2017). It is important, however, not to forget that these self-referrals were made by state leaders and make no pronouncement on the views of citizens or members of specifically affected communities. It is important not to minimise the possibility, in fact the likelihood, that the Court has been viewed as a political tool by some of the leaders of these states. As I and a colleague have argued elsewhere, while in theory self-referrals can do much to bolster the legitimacy of the Court, each self-referral to date has, in its own way, negatively impacted the Court's legitimacy (Fisher & Stefan Reference Fisher and Stefan2016). Nevertheless, in the first 15 years of its existence, the only cases to come before the Court were from the African continent. Furthermore, all but two of the resulting investigations have arisen from requests or grants of authority by governments of the very countries in which the crimes were committed: CAR, Côte d'Ivoire, DRC, Kenya, Mali and Uganda. The UNSC referred the others: Darfur and Libya.Footnote ³

Despite continued support from the continent, the ICC faced growing backlash from some African leaders, both for the Court's seemingly narrow focus on African countries and for the charges laid against sitting heads of state, such as Sudanese President Omar al-Bashir in 2009, and Kenyans Uhuru Kenyatta and William Ruto in 2011.Footnote ⁴ At the highest point of tension, South Africa, Burundi and Gambia announced in 2016 their separate intentions to withdraw from the Court, and at its annual heads of state summit in Addis Ababa in 2017 the AU adopted a non-binding ‘ICC withdrawal strategy’ (BBC 2017).

These moves, however, while potentially devastating to the Court, had relatively minor immediate real effect. Actual withdrawal from the Court comes one year after a state formally notifies the ICC of its intention. Since its notification, South Africa's High Court has judged the government's decision to withdraw from the ICC unconstitutional and, in March 2017, the state formally withdrew its notification of withdrawal. Gambia also reversed its decision to withdraw; newly elected President Adama Barrow reversed the decision to withdraw made by former President Yahya Jammeh, who himself was ‘accused of leading a government that tortured and killed opponents during his more than 22 years in power’ (Dakar Reference Dakar2017). Only Burundi pushed forward with its intention to withdraw; despite open ICC preliminary examinations, in October 2017 Burundi was the first state to officially withdraw from the Court (Janssens Reference Janssens2017). The implementation of the AU ‘ICC withdrawal strategy’, a push for a collective withdrawal by a large group of African states if African heads of state are not granted immunity for as long as they remain in office, could be catastrophic for the Court. However, the strategy only calls for African states to consider how to implement the decision and does not bind them to it (BBC 2017). As Canadian journalist Geoffrey York reasonably surmised, the strategy, with its ‘vague and unclear’ rhetoric, is not likely to succeed as a mass withdrawal, but ‘it's the latest noisy shot across the bow of the court, escalating the political pressure against it’ (York Reference York2017).

The current relationship between the continent and the ICC is fraught with concern, uncertainty and suspicion. The ICC's legitimacy – which was seemingly positively underpinned by early African support and cases – has been negatively affected as scepticism grows. The AU led a call for deferral of ICC proceedings in the al-Bashir case (Oette Reference Oette2010) and subsequently, as mentioned, has voted for a mass withdrawal from the ICC when its original concerns and proposed solution were not heeded. Negative local attitudes towards the Court in Kenya might have been instrumental in the popular vote that brought to power ICC indictees Kenyatta and Ruto in 2013 (Wamai Reference Wamai2013), and months after Kenyatta and Ruto assumed office, the Kenyan Parliament voted to withdraw from the ICC and a bill is currently pending in parliament seeking to repeal the Rome Statute's implementation statute, the International Crimes Act. Ugandan President Yoweri Museveni, despite his invitation to the Court in 2004 to investigate crimes committed in Uganda, has subsequently had a complicated relationship with the Court, both siding with it (Musisi Reference Musisi2015) and disparaging it, calling for African states to withdraw, and accusing the ICC of being a tool of Western states targeting African nations (Walubiri & Lumu Reference Walubiri and Lumu2014). It is also presently unclear what South Africa's intentions are toward the Court since its abandonment of its notice to withdraw in response to its High Court's ruling (Goldstone & Kersten Reference Goldstone and Kersten2018). However, the positions of African states regarding the ICC represent stark divisions. While there are those pushing for withdrawal, a counter-balance group of African states has voiced support for the Court and its work (CICC 2017). The ICC is now at a point in both its development and its relationship with Africa where forthcoming decisions and events could either support positive movement forward or result in the demise of the Court and the global justice it promised.Footnote ⁵

LEGITIMACY AND THE FOUNDATIONS OF INTERNATIONAL CRIMINAL LAW

Legitimacy refers to both the normative claim that the moral and legal foundation of the system is just (normative legitimacy), and the perception that the system is legitimate – the popular acceptance of a governing system (perceived legitimacy). These two aspects of legitimacy are intertwined. This is the dialectic of legitimacy: the fact that the perceived legitimacy and the normative legitimacy of the institution are dependent on each other and that each aspect can only be understood by examining it in relation to the other. Legitimacy is based not only on the legal system's accordance with particular just foundations and principles, but also on the perception of legitimacy by both the international and the local populations (Fisher Reference Fisher2012; Kiyani Reference Kiyani2015a). Perceived legitimacy is not ‘whether or not a particular criminal justice approach can be justified as legitimate on a theoretical level [but] … whether or not various local and international communities are likely, as a practical matter, to “buy in” to the approach and treat the activities of the institutions involved as legitimate’ (Dickenson Reference Dickenson2003: 301). ICL, in particular, operates according to this dialectic, with perception feeding normative legitimacy and vice versa.

Perception can feed normative legitimacy in a number of ways but is especially powerful when an institution's moral foundation is at least partly grounded in democratic authority, as is the ICC with states ceding some of their sovereign authority by ratifying the Rome Statute. This is problematic for an institution like the ICC which combines democratic normative legitimacy with power derived from an international system that lacks democratic legitimacy and that privileges the interests of some actors over others, especially when the UNSC is involved. This is particularly the case with articles 13(b) and 16 of the Rome Statute, which allow the UNSC to refer cases that would not otherwise be within the jurisdiction of the Court or to defer an ICC investigation or prosecution for a renewable period of 12 months. Thus, the Court is viewed by some as simply another expression of a profoundly undemocratic – and therefore illegitimate – international order and an instrument for power politics (Morris Reference Morris2002; Fichtelberg Reference Fichtelberg2006; Gegout Reference Gegout2013; Clarke & Koulen Reference Clarke and Koulen2014).

As du Pleissis et al. (Reference Du Pleissis, Maluwa and O'Reilly2013) claim, ‘there is a genuine problem, which has to do with perception and the need for the ICC to be seen to be acting in a just manner in order to maintain its authority’. That a criminal justice system is deemed legitimate by those under its jurisdiction is imperative to its purposes of being expressively significant and normatively legitimate (Fisher Reference Fisher2012: 121–44).Footnote ⁶ The growing concern in recent years among some of the Court's earliest and strongest supporters, that it is partial and an instrument of the world's powerful actors, can have dire affects on the legitimacy of the Court, whether the charges are supported by empirical evidence or not. The perception erodes the Court's normative legitimacy as early proponents, acting on and promoting this perception, begin to push away and retract their support.

Historically, criticisms of ICL are typically based on two sets of questions. The first concerns authority and deals with the legal and moral basis for the judicial institution's existence and to prosecute those it deems in violation of promulgated criminal law. The second is comprised of questions regarding the objectivity and justness of the legal structure as a legitimate system of law. The two are connected, especially in regards to how normative legitimacy is affected by questions of objectivity and concerns of Western imperialism and the unjust, unequal application of ICL globally, increasingly voiced by some of those interested in the relationship between the ICC and the African continent.

ICL has, over its short existence, faced numerous challenges to its legitimate existence and its ability to pursue ‘justice’ in a just and objective manner. Today, challenges that were once touted as being the result of growing pains are less convincingly dismissed as the enterprise of ICL is increasingly regarded as a political tool and an instrument of the world's more powerful states. Despite having received growing recognition as a system of law that exists under positive authority, ICL is the subject of many debates that question its compatibility with pursuits of peace in situations of ongoing conflict, and its ability to complement national pursuits of justice (Baines Reference Baines2005; Hovil & Lomo Reference Hovil and Lomo2005; Allen Reference Allen2006; Kersten Reference Kersten2016a). However, while the peace versus justice debate continues, the issues of most pressing concern to some vocal African leaders, as mentioned in the preceding section, are the Court's narrow focus on Africa and its refusal to listen to concerns regarding head-of-state immunity, which arguably ties to the region's ability to conduct international politics.

The ICC will be challenged and might have difficulty recovering if widespread distrust were to take root, especially if it were geographically concentrated in Africa. Such distrust is blossoming but not yet overwhelmingly widespread in Africa; attention must be paid to resolving concerns, for both moral and practical reasons. This attention is important both because some concerns are appropriate – such as the international imbalance of power over the Court (Clarke & Koulen Reference Clarke and Koulen2014; Fisher Reference Fisher, Fisher and Stewart2014; Fisher & Stefan Forthcoming) – and because even warranted dismissal of growing dissatisfaction of the Court in Africa, if it is done in a disrespectful manner, leads to political and moral challenges to the Court's foundation. Even when criticisms are overstated, the perception that the Court ought to be criticised and/or that criticisms are not taken seriously is itself problematic. There is an important balance to be achieved between objective justice that does not bend to the powerful (either powerful states within the international system or powerful individuals within a single state) and respecting the political and practical realities that make up the system upon which international relations and the Court itself rely.

Historically, ICL has had a hard time achieving a good balance and has come under significant and persistent attack for privileging some international actors over others – specifically, more powerful international actors (Benvenuti Reference Benvenuti2001; Chesterman Reference Chesterman2001: 121; Pal Reference Paln.d.). The ICC, a fundamentally different court from earlier ICL institutions, faces the same criticism as its predecessors, that of politics in an unjust global system. Despite purporting to operate outside the political realm (Neuwen & Werner Reference Neuwen and Werner2010), because it relies on states as principal actors, the Court is restricted to reflecting the interests and politics of states and their leaders. Especially problematic seems to be its special relationship with the UNSC, becoming increasingly scrutinised as the latter initiates, or fails to initiate, investigations into situations in which crimes defined in the Rome Statute appear to have been committed that could not otherwise be opened by the Court.

In theory, the Court intervenes where a state is unable or unwilling to address genocide, crimes against humanity, or war crimes, but can only do so in the case of states that have accepted the Court's jurisdiction – unless the Court is referred the matter by the UNSC. The treaty-based foundation of the Court provides both a morally strong and morally weak foundation. It is stronger than preceding international criminal institutions as there is no concern over the Court applying ex post facto (retroactive) law, nor is there question of legitimate authority to intervene in a realm usually shielded by state sovereignty in member states. These states have willingly ceded some sovereign authority to this institution. The moral foundation of the Court is, however, weak in the sense that it is shaped by an unequal global structure and, arguably, continues to perpetuate global inequalities in the interests of powerful states. This is particularly evident when we look at the relationship between the ICC and the UNSC.

If the UNSC refers a situation to the ICC for investigation, the membership status of the state is extraneous and such a case is theoretically open to the same criticisms levelled at the international tribunals. Furthermore, the UNSC is then in the position of affecting the work and reputation of the Court in that its caseload is shaped by the concerns and self-interests of permanent members of the UNSC – some of whom are not parties to the Rome Statute. Clarke & Koulen (Reference Clarke and Koulen2014: 315) argue that ‘the drafting history of the Rome Statute, which resulted in a considerable role for the UNSC, illustrates the political origins of the law and the manner in which foundational inequalities are woven into the very fabric of the Rome Statute’. And yet, the UNSC referral represents, at least in theory, the denial of impunity for perpetrators of international crimes committed not within the territory of a member state.

An important aspect of the Court's legitimacy, it seems, therefore rests in the resolution of a tension: the Court obtains legal and moral legitimacy by (democratic or representative) state support and yet, in seeming contradiction and tension, its core aim is to deny impunity to those who were able to shield themselves in the statist system, thereby symbolising that no individual can get away with grave abuses against their fellow human beings in a world that respects basic human rights. The Court espouses the idea that there is a higher authority than state leaders when it comes to the most egregious offences, and yet this system rests upon and operates according to procedures set out in the Rome Statute, a constitution negotiated by states. As the legitimacy of the ICL system is based, as mentioned above, on both the real justness of the foundation of the system and the popular acceptance of the governing system, these factors, alongside the Court's own acts of partiality or acts that may appear partial, hamper the Court's standing. The next section examines specific African concerns in light of these conditions.

THE MORAL WEIGHT OF AFRICAN CRITICISMS

For both moral and practical reasons, it is both right and wrong to dismiss the concerns and tactics of African states and also pay them serious attention. The main criticisms levelled at the Court are that it is an instrument of Western imperialism, that it is a Western-led institution focused on bringing ‘justice’ to Africa; and that, in not granting head-of-state immunity, it does not respect the will and needs of Africans or African leaders. This section examines these charges separately and shows how dismissing them outright would be wrong but taking them seriously does not mean that the Court should surrender to the demands of particularly vocal African leaders.

A ROLE FOR AFRICAN STATES

It may be possible to save the Court's legitimacy and its democratic foundation by strengthening its realisation of democracy as a system of fundamental rights. In fact, it was this foundation, combined with democracy as popular control in the form of a treaty, from which the ICC originally arose. It is for promoting this cause of reinterpreting the UNSC's role in ICC referrals that African states, and the AU, are well-placed to adopt a strong moral and practical position. As the region of particularly and strongly implicated stakeholders, Africa could develop a role as a regional voice from a morally strong standing: (many) African states have accepted ICC jurisdiction, thereby surrendering some of their own sovereignty to the international institution, and are the most affected by its operations. They have the greatest interest in the Court's pursuit of objective justice and have signalled their own willingness, at least in theory, to put aside self-interest to support its work. The AU resolution calling for mass withdrawal also calls for African states to continue to push for court reforms (Igunza Reference Igunza2017), signalling both their uneven support for the withdrawal strategy and political will for advocating change, in this case specifically ‘a bid to amend the court's statute to exempt sitting leaders implicated in widespread atrocities’ (Keppler Reference Keppler2017). However, the specific recourse suggested by African states – advocating head-of-state immunity – is morally problematic, unlikely to develop global allies for ICC reform in general, and is highly unlikely to be met by the Court itself. Rather, there exists an opportunity for African states to work constructively towards changes that would not dismantle an avenue of protection for individuals against attacks by their own governments and to build upon the like-understanding of other states globally for the need for amendments in the operations of the Court, most pressingly perhaps the relationship between the UNSC and the ICC, to address the uneven application of justice in ‘a manner that extends, rather than curtails, accountability, so that victims have recourse to justice, no matter where atrocities are committed’ (Keppler Reference Keppler2012).

As mentioned, the AU's current voice on the ICC seemingly reflects those most vocal and negative about the Court. Those states supportive of the Court have been much quieter, signalling their support but doing little more, which is both a lost opportunity and also itself a distraction. Rather than threatening withdrawal over the issue of head-of-state immunity, which would further entrench global injustices, African states could collectively promote enhanced international objective justice by pushing for reforms to the ICC–UNSC relationship. Nothing in this article should be taken to suggest that African states are exceptional in their attempt to shield themselves from the burdens or unwelcome interventions from the Court. Politics and self-interested non-normative positions are employed by many states, not least the P-5 members of the UNSC. African states, however, have an opportunity to do better, to be champions of the ICC and ‘seek to improve the institution into which [they have] already invested so much … to be a leader [rather than] a laggard in international justice’ (Goldstone & Kersten Reference Goldstone and Kersten2018), to transform their unique relationship with the Court into a position of strength from which to make much needed moral arguments about the Court's operations.

Of course, recognition that the ICC–UNSC relationship is problematic is not new; nor is it novel to suggest that changes are possible and necessary (and difficult to achieve). International law scholarship has offered countless analyses and ranges of recommendations for solutions to the Article 16 ‘problem’, that the UNSC can stay ICC procedures with a resolution adopted under Chapter VII of the UN Charter (Clarke & Koulen Reference Clarke and Koulen2014: 299–300). What much of the recommendations have in common, though, is a fairly passive role for African state leaders. For example, Makau W. Mutua, not inappropriately, suggests that state parties and other stakeholders ‘should more seriously engage these African states – and key stakeholders within them – to facilitate the work of the ICC to stem impunity’ (Mutua Reference Mutua2010: 1) and that ‘Security Council member-states must resist the pressure to politicise the work of the ICC’ (Mutua Reference Mutua2010: 8). There is, however, a much larger role for African states, via the AU, to take: to strengthen the Court, and to bolster their own global moral standing at the same time. The agency of African states and other African actors to influence global norms and international institutions is often understated (Coleman & Tieku Reference Coleman and Tieku2018). It is possible for those AU member states that support the ICC – and these are many (Keppler Reference Keppler2016) – to not only reaffirm their support, but also to work to strengthen the legitimacy of the Court.Footnote ¹² ICC reform may be an area in which African states can build upon the international influence they have.

For there to be hope for the ICC as an institution of global justice, what seems needed is a ‘practical push towards geopolitical egalitarianism in who or what is prosecuted’ (Reynolds & Xavier Reference Reynolds and Xavier2016: 963). Such ICC reform is an area where African voices, if regarded as originating legitimately (non-self-serving motivations of individual leaders), have a chance of making an important impact. It would seem African participation is both needed and valued in developing global norms and perceptions in areas of issues seen to be prevalent in African states, because local knowledge and allies are crucial to the credibility of international mobilisation efforts (Coleman & Tieku Reference Coleman and Tieku2018: 4). While ICC reform is a challenging issue, African states may be in the best position to take a stand as significant stakeholders and make demands on the institution or demands on those who influence its unequal enforcement of international laws.

Recognition of flaws of the Court and how its operations reflect the balance of power within the international order is increasing. And yet, it is still far from the ‘relatively weak International Criminal Court (ICC) that would serve as an agent of the Security Council’ first proposed in the International Law Commission's 1994 draft statute (Goodliffe & Hawkins Reference Goodliffe and Hawkins2009: 977). Despite expectations and strong-state (USA) opposition (Schabas Reference Schabas2004; Goodliffe & Hawkins Reference Goodliffe and Hawkins2009: 989), between 1994 and 1999 states pushed for a more robust ICC than was initially expected because ‘countries considered [their] commitments to human rights’ and their ‘relationships’ during negotiations (Goodliffe & Hawkins Reference Goodliffe and Hawkins2009: 994). There is no guarantee that stripped of their arguments on the insistence of head-of-state immunity, arguments on the inequalities of international justice and the performances of the Court would find solutions in the international community, but now – especially now, when the global community is dividing along the lines of anti- and pro- cosmopolitan stances (Fisher & Stefan Forthcoming) – there is a greater chance of support for substantial changes in how the ICC represents global power differentials.

As mentioned, African leaders who argue for head-of-state immunity for reasons other than to shield themselves from prosecution before the Court are not taking an unreasonable position; they have a legitimate grievance in that they are shouldering a greater regional burden by the requirement that they arrest travelling heads of state. An easy solution seems within grasp and in line with what many believe is the right interpretation of international law. Nevertheless, pursuing this solution of head-of-state immunity is neither in the interests of global justice and human rights protection nor likely to garner these traditionally less-powerful states global allies in their cause. But, by shouldering a larger burden in implementing international justice, African states are in a strong position to argue for more influence in what is determined to be just and what goals are pursued by the ICC within their continent and beyond. This influence is not likely, however, to bear fruit if used to pursue head-of-state immunity; nor would it be an advancement of international justice in the protection and promotion of human rights globally. Pushing for head-of-state immunity, especially in the current climate, with the most vocal advocates of the position being those who are making arguments for their own self-preservation, is not likely to attract the positive attention and buy-in needed for any real change. Pursuit of other reforms, perhaps, including the relationship between the ICC and the United Nations, might, with some strategy, attract strong allies from outside the continent, and from a position of moral strength. At this particular moment, African states may be in a uniquely powerful position to influence other global actors who want to maintain the existence and legitimacy of the Court.