This House believes the ICC is biased against Africa

All of the twenty-four people currently indicted are African. Of the fifteen cases currently sitting before the court, all are African[1]. This in and of itself points to a large disparity between Africa and the rest of the world. It is also not at all true that Africa is the only place worthy of investigation – atrocities have occurred in the Middle East, Kosovo, Chechnya, Sri Lanka and North Korea, among others since the inception of the court. This is clearly because these other cases have powerful backers in the form of permanent Security Council members. The only conclusion to be drawn is that the ICC feels more comfortable targeting Africa then other regions where it is likely to run into opposition from powerful members of the international community.

[1] ‘Situations and cases’, International Criminal Court, accessed 13/2/2014 

While Africa is the only continent to face prosecutions, a number of other regions where atrocities have taken place are being heavily investigated, including Afghanistan, Colombia, Georgia, Honduras and South Korea[1]. These are expected to lead to prosecutions occurring. So while Africa has had the focus during the initial years of the ICC, its focus is expanding not just focused on African atrocities. It is not even solely focused on developing countries; a complaint about British actions in Iraq has been handed to the ICC.[2]

[1] ‘Situations and cases’, International Criminal Court, accessed 13/2/2014 

[2] Owen, Jonathan, ‘Exclusive: Devastating dossier on ‘abuse’ by UK forces in Iraq goes to International Criminal Court’, The Independent, 12 January 2014

Africa and its leaders are treated far more contemptuously by the court. The prospect of prosecuting Barak Obama for the killing of civilians by drones which Amnesty International has suggested amount to war crimes[1] or George W. Bush for war crimes in Iraq and Afghanistan is remote – yet Omar Al-Bashir and Uhuru Kenyatta have both been indicted as sitting leaders. The ICC will only prosecute if those who have committed war crimes are not going to be prosecuted locally but this is as much the case for western leaders as African ones. This points clearly to the ICC proselytizing what is ‘right’ and ‘wrong’ to Africans but not to other leaders – treating these leaders less respectfully and blatantly undermining African nations sovereignty in a way they would not, or would dare not, for others.  

[1] ‘USA must be held to account for drone killings in Pakistan’, Amnesty International, 22 October 2013

The reason western leaders have not been indicted is firstly, because their domestic judiciaries are strong and independent enough to be able to prosecute abuses when they occur. The ICC has a principle of complementarity where the ICC will only prosecute if the state themselves are unwilling or unable to prosecute. This is not the case in western countries where there is no difficulty putting members of government on trial – in the UK for example the environment secretary Chris Huhne was sent to prison for perverting the course of justice.[1] Secondly however, there is no evidence that these leaders were involved or responsible for atrocities in the same way the African leaders were. Western leaders have not authorized individual killings of civilians, or massacres, genocides or other crimes that are prosecuted by the ICC.

[1] Mr Justice Sweeney, ‘Chris Huhne and Vicky Price jailed: judge’s sentencing remarks in full’, The Telegraph, 11 March 2013

The ICC can only investigate situations that are referred to it by either the host country, or the Security Council[1]. A power also exists for the prosecutor to seek investigation, though this has as yet only been used twice. As such, most atrocities that occur across the world are shielded from prosecution because such a prosecution would be against the interests of a member Security Council. Leaders do not seem to be brought for investigation until they offend the west; Charles Taylor was not prosecuted until he had a falling out with the USA, despite their soft support for him in overthrowing the Doe regime[2]. Another case in point is Uganda where the Lord’s Resistance Army has been charged, but not the Pro-US government forces, despite evidence existing they have also committed crimes[3]. It is clear then that the ICC makes decisions by broad external factors, which biases it against Africa which does not have any countries on the UNSC or any patrons sitting on the council.

[1] States parties to Rome Statute, ‘Rome Statute of the International Criminal Court’, ICC, 2011

[2] ‘Charles Taylor – preacher, warlord, president’, BBC News, 13 July 2009 

[3] ‘ICC, A Tool To Recolonise Africa’, African Business

The need in most cases for a referral from the UNSC certainly makes it unlikely that those states will be investigated but this does not make the court biased against Africa. Some of the cases in Africa have involved countries or their judiciaries referring themselves. In the case of Kenya’s election violence in the five years after the violence occurred very little action occurred from the domestic forces; there was a commission lead by Philip Waki that recommended a special tribunal to prosecute those involved.[1] However this never happened as a result the Waki commission handed their report over to the UN and ICC for action[2]. Unsurprisingly the case of Kenyatta has seen accusations of witness intimidation on large scales, showing that a fair trial would have been very difficult to guarantee in Kenya itself[3].

[1] Waki Report, October 2008, (large pdf)

[2] Wachira, Muchemi, ‘Annan did not ambush Kenya says Justice minister’, Daily Nation, 13 July 2009

[3] ‘Perceptions and Realities: Kenya and the International Criminal Court’, Human Rights Watch, 14 November 2013

All of the twenty-four people currently indicted are African. Of the fifteen cases currently sitting before the court, all are African[1]. This in and of itself points to a large disparity between Africa and the rest of the world. It is also not at all true that Africa is the only place worthy of investigation – atrocities have occurred in the Middle East, Kosovo, Chechnya, Sri Lanka and North Korea, among others since the inception of the court. This is clearly because these other cases have powerful backers in the form of permanent Security Council members. The only conclusion to be drawn is that the ICC feels more comfortable targeting Africa then other regions where it is likely to run into opposition from powerful members of the international community.

[1] ‘Situations and cases’, International Criminal Court, accessed 13/2/2014 

While Africa is the only continent to face prosecutions, a number of other regions where atrocities have taken place are being heavily investigated, including Afghanistan, Colombia, Georgia, Honduras and South Korea[1]. These are expected to lead to prosecutions occurring. So while Africa has had the focus during the initial years of the ICC, its focus is expanding not just focused on African atrocities. It is not even solely focused on developing countries; a complaint about British actions in Iraq has been handed to the ICC.[2]

[1] ‘Situations and cases’, International Criminal Court, accessed 13/2/2014 

[2] Owen, Jonathan, ‘Exclusive: Devastating dossier on ‘abuse’ by UK forces in Iraq goes to International Criminal Court’, The Independent, 12 January 2014

Africa and its leaders are treated far more contemptuously by the court. The prospect of prosecuting Barak Obama for the killing of civilians by drones which Amnesty International has suggested amount to war crimes[1] or George W. Bush for war crimes in Iraq and Afghanistan is remote – yet Omar Al-Bashir and Uhuru Kenyatta have both been indicted as sitting leaders. The ICC will only prosecute if those who have committed war crimes are not going to be prosecuted locally but this is as much the case for western leaders as African ones. This points clearly to the ICC proselytizing what is ‘right’ and ‘wrong’ to Africans but not to other leaders – treating these leaders less respectfully and blatantly undermining African nations sovereignty in a way they would not, or would dare not, for others.  

[1] ‘USA must be held to account for drone killings in Pakistan’, Amnesty International, 22 October 2013

The reason western leaders have not been indicted is firstly, because their domestic judiciaries are strong and independent enough to be able to prosecute abuses when they occur. The ICC has a principle of complementarity where the ICC will only prosecute if the state themselves are unwilling or unable to prosecute. This is not the case in western countries where there is no difficulty putting members of government on trial – in the UK for example the environment secretary Chris Huhne was sent to prison for perverting the course of justice.[1] Secondly however, there is no evidence that these leaders were involved or responsible for atrocities in the same way the African leaders were. Western leaders have not authorized individual killings of civilians, or massacres, genocides or other crimes that are prosecuted by the ICC.

[1] Mr Justice Sweeney, ‘Chris Huhne and Vicky Price jailed: judge’s sentencing remarks in full’, The Telegraph, 11 March 2013

The ICC can only investigate situations that are referred to it by either the host country, or the Security Council[1]. A power also exists for the prosecutor to seek investigation, though this has as yet only been used twice. As such, most atrocities that occur across the world are shielded from prosecution because such a prosecution would be against the interests of a member Security Council. Leaders do not seem to be brought for investigation until they offend the west; Charles Taylor was not prosecuted until he had a falling out with the USA, despite their soft support for him in overthrowing the Doe regime[2]. Another case in point is Uganda where the Lord’s Resistance Army has been charged, but not the Pro-US government forces, despite evidence existing they have also committed crimes[3]. It is clear then that the ICC makes decisions by broad external factors, which biases it against Africa which does not have any countries on the UNSC or any patrons sitting on the council.

[1] States parties to Rome Statute, ‘Rome Statute of the International Criminal Court’, ICC, 2011

[2] ‘Charles Taylor – preacher, warlord, president’, BBC News, 13 July 2009 

[3] ‘ICC, A Tool To Recolonise Africa’, African Business

The need in most cases for a referral from the UNSC certainly makes it unlikely that those states will be investigated but this does not make the court biased against Africa. Some of the cases in Africa have involved countries or their judiciaries referring themselves. In the case of Kenya’s election violence in the five years after the violence occurred very little action occurred from the domestic forces; there was a commission lead by Philip Waki that recommended a special tribunal to prosecute those involved.[1] However this never happened as a result the Waki commission handed their report over to the UN and ICC for action[2]. Unsurprisingly the case of Kenyatta has seen accusations of witness intimidation on large scales, showing that a fair trial would have been very difficult to guarantee in Kenya itself[3].

[1] Waki Report, October 2008, (large pdf)

[2] Wachira, Muchemi, ‘Annan did not ambush Kenya says Justice minister’, Daily Nation, 13 July 2009

[3] ‘Perceptions and Realities: Kenya and the International Criminal Court’, Human Rights Watch, 14 November 2013

Far from the ICC being biased against Africa it is Africa’s embrace of the ICC and the opportunity for international justice that has led to so many Africans being tried at the Hague. The reality is that the only nations to refer themselves to the ICC have been African –the DR Congo, Central African Republic, Mali and Uganda were all self-referred[1]. Likewise, the Ivory Coast referred itself to ICC jurisdiction, and referral of Darfur to the ICC from the Security Council was done so with the African Union’s support[2].  The ICC has clearly not as an institution been targeting Africa, rather it has been investigating, and then engaging in trials on situations that have been brought to it by the countries involved. Other regions of the world have not embraced the opportunity for justice in the same way so it is taking longer for investigations into war crimes in those situations by the ICC.

[1] Clark, P. “Law, Politics and Pragmatism: The ICC and case selection in the DRC and Uganda” in Justice Peace and the ICC in Africa at 37.

[2] Lamony, Stephen A., ‘Is the International Criminal Court really picking on Africa?’, African Arguments, 16 April 2013

While these countries referred themselves, they did under enormous pressure from the ICC. The Prosecutors chose to ‘follow closely’ African cases to the exclusion of others and then actively invited these countries to refer themselves, under threat of seeking prosecutions on their own if the country did not comply[1]. Self-referral under pressure does not show that the ICC is not biased against Africa rather it shows either that the ICC has been more interested in Africa than elsewhere, or that it has put more pressure on African states to self-refer.

[1] African Business 

The ICC has gone to great lengths to involve all parts of the world in all aspects of its operations. Fatou Bensouda, from Gambia, was recently appointed Chief Prosecutor of the ICC. Moreover, Africans have twice been Vice-President of the court, and have had a fair representation of judges presiding over the court, with five of twenty-one current judges on the panel[1].  Moreover, the Africa Union played a large role in the negotiations over the Rome statute and the creation of the ICC, reflected in the large proportion of countries who are members.[2] As such, Africa’s voice is strongly heard in the ICC.

[1] ‘Judge Sang-Hyun Song re-elected President of the International Criminal Court for 2012-2015; Judges Sanji Mmasenono Monageng and Cuno Tarfusser elected First and Second Vice-President respectively’, International Criminal Court, 11 March 2012

[2] Murithi, Tim, ‘The African Union and the international Criminal Court: An Embattled Relationship’, IJR Policy Brief, no.8 March 2013, pp.1-2 

One of strongest current criticisms of the African Union is that the ICC is ignoring its opinions. In particular, the AU has very strong views on the treatment of the Kenyan President and his deputy by the ICC in the Kenyan investigation, which the ICC has failed to engage with. Tanzanian President, Jakaya Kikwete, said 'The ICC continues to ignore repeated requests and appeals by the African Union' and this 'attitude has become a major handicap that fails to reconcile the court's secondary and complementary role in fighting impunity'[1]. This has led to African Union seriously considering leaving the union – not evidence of them being an important part of the process. Having Africans as a part of the ICC itself does not mean it listens to the African states that are parties to it.

[1] Dersso, Solomon, ‘Unplanned obsolescence: The ICC and the African Union’, AlJazeera, 11 October 2013

At the most fundamental level, many of the world’s atrocities of recent times have occurred in Africa, where weak government and mass war are rampant. Taken per head of population Africa has the most conflicts of any continent and unlike Asia its most brutal conflicts have occurred in the last couple of decades.[1] As such, it is not surprising that a focus has existed in Africa from the ICC. That the ICC has not been as strong in other continents is not evidence of bias against Africa, rather that they have work to do in other areas. But the victims of atrocities in Africa deserve their perpetrators to be brought to justice. As such, Africa is not a ‘victim’ of the ICC, but the greatest beneficiary. Africa had the greatest desire and push for international assistance in obtaining justice, and are now receiving that. This simply shows that Africa is forging a path that other regions should follow in terms of its acceptance of international criminal law.  

[1] Straus, Scott, ‘Wars do end! Changing patterns of political violence in sub-Saharan Africa’, African Affairs, 111/143, March 2012, pp.179-201, p.186

The point isn’t that the ICC has prosecuted in Africa; it’s that they have focused exclusively on Africa. This presents the rhetoric that Africa and Africans are somehow more violent and less moral then the rest of the world – or that Africans require more intervention than other places. This biases Africa again the rest of the world and marginalizes them in the international community.

The ICC’s jurisdiction is limited to those countries that have ratified the Rome statute. This combined with the likelihood of deadlock in the UNSC, means that many of the worst conflicts are off limits for the ICC. Using data from the Uppsala Conflict Data Program and UNHCR database since the Rome Statute came into effect in July 2002 (up to 2011) Ben Shea of the UCLA Law School finds that there has been little bias against Africa.

Not only have most of the gravest conflicts taken place in Africa but the countries that were not investigated are not party to the Rome Statute. This eliminates Algeria, Ethiopia, India, Indonesia, Iraq, Myanmar, Nepal, Pakistan, Palestine, Russia, Somalia, Sri Lanka, Syria, Thailand, Togo, Turkey, Yemen and Zimbabwe. Others such as Liberia, and the Philippines only signed up after their conflict had ended. Others such as Columbia, Georgia and Mexico can be eliminated due to Complementarity (where the states are willing to investigate themselves).

In conclusion “Despite the fact that several very grave conflicts outside of Africa have occurred sometime between 2003 and 2011, once taking into account the jurisdictional obstacles of the ICC, only one country remains: Afghanistan. The fact that Afghanistan has been under preliminary examination by the ICC suggests that the Court is not biased toward Africa.”[1]

[1] Shea, Ben, ‘Is the International Criminal Court targeting Africa inappropriately’, ICCForum, 17 March 2013, Ben’s analysis is much more detailed than we have room for here so do read it for yourself. 

That the ICC is investigating the conflicts that under some analyses may be the gravest within its jurisdiction does not mean it is not biased. Complementarity in itself shows bias; it allows countries that are considered more developed off the hook ensuring that the ICC will only look at the least developed. African states have signed up to the ICC but the result of their belief in international criminal justice has been that those who attempt to avoid international justice by not signing up to the statute have succeeded while those who accept some form of justice have been targeted.