Africa and the ICC: Some Unsolicited Advice

(Photo: VOA News)

(Photo: VOA News)

Allegations that the International Criminal Court (ICC) is biased against Africa aren’t going away. On the contrary, in the wake of the victory of Uhuru Kenyatta in Kenya’s recent Presidential elections, they seem to be increasingly common. Most recently, at the African Union summit in Addis Ababa this week, Ethiopia’s Prime Minister Hailemariam Desalegn declared that the ICC is “hunting” Africans because of their race.

I continue to maintain that the Court is not biased against Africa, neo-colonial nor racist. Africa is not monolithic and many states continue to support the ICC and its mandate. As has often been pointed out, many African citizens don’t share the views of their governments and, in fact, would like to see them held accountable. At the same time, even if some cases that aren’t before the Court should be, no case or situation currently before the Court shouldn’t be. As Abdul Tejan-Cole writes, “while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case before the Court that one could dismiss as being frivolous or vexatious.” Moreover, in cases where the Court has functioned to bolster the legitimacy and the political and military aims of African leaders (like Museveni in Uganda, Ouattara in Cote D’Ivoire, and Kabila in the Democratic Republic of Congo), governments have been more than happy to accept and manipulate the Court’s interventions for their own political purposes.

At the same time, it would be folly to deny the fact that the ICC works within an international structure that is far too unequal and within an international hierarchy that no longer reflects the distribution of power in the world. This structure reinforces the reality that powerful states are too often shielded from accountability. The Court’s promise was to transcend this by being an impartial institution independent of the realpolitik machinations of institutions like the United Nations Security Council and ‘great powers’ like the United States. It hasn’t been able to do so. That’s no secret. No honest advocate of international criminal justice can say that he or she is satisfied with the current reach of international criminal justice. The Court is selective and that is a problem.

So how did we get here? In my view, part of the problem comes down to the ‘perception game’ – how the ICC has communicated its work and decision-making.

Too often the ICC and its strongest proponents have responded to criticisms by being reactionary and defensive rather than reflective and measured. Far too often the Court has blamed its negative perception on external sources, refusing to take responsibility for how it is perceived by others. In an interview that touched on the question of the Court’s perceived bias against Africa, Bensouda suggested that it was the media’s fault. More recently, when recently asked about whether the Court has dealt poorly with the perception that it is biased against Africa, Bill Pace, the head of the Coalition for the International Criminal Court, responded by apportioning blame on the media and academia (update: see Pace’s response to this post in the comments below).

It is unwise and possibly even dangerous to refuse to understand how you are perceived by others, whether you are a state, an institution or an individual. It is a refusal that demonstrates, above all, immaturity. The ICC needs to – and can – avoid going down this path. But it can only do so if it is honest and accepts that it has an active role to play in the ‘perception game‘. It also has to realize that its current messaging strategies aren’t working.

(Photo caption from 'The Prosecutor')

(Photo caption from ‘The Prosecutor’)

Working against the Court is the fact that the playing field in the ‘perception game’ is highly uneven. In comparison to states like Kenya and institutions like the African Union, the ICC has very few resources for counter-messaging. Sadly, key states that ostensibly support the Court’s work haven’t picked up the slack.

But there’s also another problem. As I recently argued, the ICC has responded to allegations of being biased by consistently repeating the same set of responses: the vast majority of African states have signed and ratified the Rome Statute; there are numerous preliminary investigations in situations outside of Africa; the Court can only investigate situations under its jurisdiction; the argument that the ICC is biased is the work of a few autocrats and anti-ICC dictators afraid of justice, etc. All of these arguments are, to varying degrees, true. The problem is that they seem to be falling on deaf ears and have been for quite some time. They may be well-versed amongst proponents of the Court but, again, it is worth asking: has anyone who initially believed that the ICC was biased against African been convinced that it isn’t?

So what can the ICC do? Here are a few suggestions from an ICC supporter who wants to get beyond this ICC-Africa debate.

- Don’t externalize blame to the ‘media’ and ‘academia’. If a particular article or post is unfair or inaccurate, Court officials should feel free to engage and respond. Some journalists and academics will be inclined to support the ICC and some will not but the institution is not unique in this instance. It does no good to blame academia or media and can easily come across as petulant. If the media is consistently not reporting the narrative that the Court is trying to establish, it is probably time to try a new communication strategy.

- Assemble a working group of experts on the politics of the ICC, including staff who work on ICC-state relations, along with communications experts. Ask them to come up with a professional communication strategy which does not shy away from political controversies or rely exclusively on legal arguments.

- Carefully consider where criticisms of the Court are coming from. Do not dismiss them out of hand. Again, don’t blame it on ‘bad apples’ even if they clearly have a role to play. It is virtually impossible that a persuasive line of criticism has no legitimate grounds whatsoever. Invite and welcome fair critics to come to the Court and voice their opinions. Take the time to understand where critics and criticisms are coming from. Some of the suggestions below may help in this regard.

Official (green) and preliminary (red/pink) investigations by the ICC

Official (green) and preliminary (red/pink) investigations by the ICC

- Publicly accept that the limitations on the Court are a result of the current international political context in which the ICC operates. Make it clear that the Court is not satisfied with these limitations. Reiterate how the Court was intended to challenge and transcend the uneven distribution of power and will continue to do so.

- Publicly address the relationship between the ICC and the UN Security Council. This should be relatively easy as numerous key ICC figures (including former ASP Presidents Christian Wenaweser and Bruno Stagno Ugarte and now current President Tiina Intelmann) have written and commented on the subject. Accept that the proximity of this relationship has caused problems and declare a renewed commitment to the original vision of the ICC as an impartial institution independent of the Security Council.

- Accept and state that the Court’s relationship with the United States is not ideal.  Despite the US not having ratified the Rome Statute, the US-ICC relationship gets more attention than the Court’s relationship with any other state. And while that relationship is undoubtedly better than it was and is of clear importance to the success of the ICC, there are clear dangers in appearing overly dependant on a powerful non-member state. Renew the pledge to be a Court for committed member-states above all.

- Be more transparent and open about developments in preliminary investigations taking place outside Africa. The Office of the Prosecutor (OTP), as it regularly points out, is investigating numerous situations outside of Africa, including in Georgia, Colombia, the Korean peninsula and Afghanistan. However, civil society groups, academics and media have too often failed to push the OTP to state their position on these investigations.

- Consider making the theme of the next Assembly of States Parties conference ‘Africa and the ICC’. Invite any and all African heads of state (or their representatives). Allow them to speak and openly debate the relationship between the Court and Africa. It will demonstrate a clear willingness to engage with critics and it would be a unique opportunity to apply new communications strategies.

Of course, it isn’t sufficient to suggest that this advice should be taken up by ‘the ICC’ as a whole. The Court is composed of numerous organs and departments, all of which have constraints imposed on what they can say and how. As a result, some of these suggestions and messages could be taken up by the Prosecutor, some by the President and some by the President of the Assembly of States Parties. Moreover, it may also be worthwhile considering the creation of a communications unit and representative who represents the interests of the institution as a whole and who can speak to the legal and political challenges facing the Court.

The allegations of the ICC being biased against Africa are a distraction from the Court’s work and its potential role in international politics. But while it has long been clear that these allegations can’t be ignored, repeating the same rebukes and responses clearly isn’t working.

For too long the ICC and Africa have been talking past each other. It isn’t too late to have an open, honest and respectful conversation.

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About Mark Kersten

Mark is a PhD student in International Relations at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution. Specifically, he is examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya.
This entry was posted in African Union (AU), International Criminal Court (ICC), UN Security Council, United States and tagged , , , , . Bookmark the permalink.

29 Responses to Africa and the ICC: Some Unsolicited Advice

  1. Tony Irungu says:

    Well said Mark. However, perhaps the ICC could also assert its independence more from the major powers by putting a limit to how much funding it can receive from any one country. It is very hard to convince highly sceptical Africans like myself that the ICC authorities are not immune to political pressure to skew its investigations a certain way from their major European donors to achieve political objectives. In fact, this is the common view of many Africans i know, except sections of the tunnel visioned and obnoxious civil society of course. He who pays the piper calls the tune after all, and if the ICC addressed the issue of funding more transparently, perhaps even very wealthy nations like China may also become members and balance out the source of funding with wealthy European nations, which is what i think allows the ICC to be vulnerable and to cosy up to a powerful non-member like the US in order to get said funding, never mind that the US has laws that threaten violence on states that may arrest US citizens suspected of war crimes to hand them over to the ICC, such as George Bush.

  2. Mark Kersten says:

    Thanks for the comment Tony. I have to say I’m a bit surprised that you agree with me, but I’m glad nonetheless!

    On the funding issue, I don’t think that it is skewed towards any particular state(s). I haven’t seen evidence that the Court gets disproportionate levels of funding from ‘Western’ states or that this has bearing on the Court’s activities. In the case of the US, it is actually barred by domestic legislation from giving any financial support to the ICC. Indeed, as I understand it, this caused some delays in getting Ntaganda to The Hague after he showed up at the US embassy in Kigali. Moreover, the UK has often pushed for the ICC’s budget to have ‘zero growth’.

    I would actually argue that with more funding the Court could investigate more situations – including those outside the African continent. It would be very bad indeed if funding restrictions from states preventing the ICC from continuing or opening investigations/prosecutions (see here: http://justiceinconflict.org/2011/12/22/ome-potentially-very-bad-news-for-the-icc/).

    Nevertheless, if this is a widespread perception then, in line with my post, it should be addressed through clear messaging by officials at the ICC.

    Thanks again!

    Mark

  3. william pace says:

    I agree with most of Mark Kersten’s views and advice. Since he referred to a comment I made, I thought I should clarify this in a few aspects.

    First, among key sectors that make up the ‘international political environment’ that will determine whether the Rome Statute and the International Criminal Court will succeed or fail– governments, ICC, UN, NGOs, media [and academia] – my main point was that governments, ICC, UN, NGOs all are taking the RS and ICC very seriously, however the media have been a tremendous disappointment. [Honestly, while academia is very important, it is not a distinct or determinative sector, and I mentioned it because I likely made the comment at an academic institution.]

    The ‘major’ media organizations have never given international justice or the new ICC system the attention it deserves, from 1995 to 2013. Every time I meet with the few key national and international media journalists covering international justice they complain that their editors and managers assign very low priority to IJ reporting. The downsizing of international media bureaus, reporting, and wire services is a disaster and it is also very negatively effecting IJ reporting. The major world capitals national and international media have never recognized that the ICC treaty is one of the greatest achievements and advancements in multilateralism and international law since 1945, or ever. These media institutions have never appropriately recognized that the ICC became a major ‘actor’ in international peace and security within a few years while the most powerful nation in the world was trying to kill it.

    Thus, with all due respect, I believe Mark significantly underestimates the “perception game” issue. The continuing major failure of the international media could have existential impacts on the future of the RS and ICC. It goes way beyond the very legitimate advice that the ICC and others to develop much better communication strategies.

    Second, the media and academia very often treat RS and ICC supporting NGOs, like the Coalition for the ICC, as cheerleaders and uncritical defenders of the ICC. This is such BS. It is so inaccurate that it undermines credibility. Mark appears to do it in this article, which is why I am making this point. The Coalition NGOs have been the most critical and persistent on virtually every issue he raises in his article since the treaty entered into force and the ICC began establishing itself in 2003. However, the Coalition NGOs have exercised their criticisms within constructive frameworks specifically to not reinforce the destructive critics – of which there are many. For example, every year for the last 8 years CICC NGOs have been the most critical of the outreach and media strategies of the ICC. All the IJ bodies, except Sierra Leone perhaps, made this same mistake. The CICC has campaigned with governments and ICC officials to strengthen and augment their outreach and communications work and budgets every year. It has been the major government contributors to the ICC budget that have opposed increasing outreach and communication during the last five years.

    The Coalition NGOs have been working on virtually every point of Mark’s advice for the last decade, and even a half day of research would verify the scope and volume of the work done- whether on the ICC and Security Council, ICC and US government, OTP investigation strategy, criticism of the preliminary investigations process, ICC-AU relations, and 50 other issues Mark does not raise in his article.

    That CICC NGOs confine their criticism and reform proposals to constructive frameworks should not be considered a weakness.

    My main point again is that of the key sectors that can have an existential impact on the future of the RS and ICC and international justice, the international media, and major world capital national media, have failed the most to recognize and report on the historic developments.

    Bill Pace, convenor, CICC

  4. Mark Kersten says:

    Bill – Thanks for taking the time to comment on the post. It’s greatly appreciated and it’s fantastic to have your opinions voiced here.

    I agree with and very much appreciate a lot of what you are saying and very much appreciate the CICC’s role in both advocating for the Court but also offering (and disseminating) thoughtful critiques of the ICC’s work.

    Still, I can’t see how it is a good *strategy* for the Court or NGOs that support it to blame the media – even if we assume that you are right that “the international media, and major world capital national media, have failed the most to recognize and report on the historic developments” at the ICC. It is hard to imagine how it will help improve the Court’s image or dispel widely held, if at times erroneous and misleading, perceptions of its work. Above all, this post was intended to offer potential ways for the Court’s officials and representatives to move beyond the ICC-Africa debate by employing fresh communication strategies that take criticisms (even the misplaced ones) seriously. Blaming external sources – whether it be the media or academia – won’t do (and hasn’t done) the Court any good so far as I can see.

  5. Alexander says:

    Bill, I wrote and write about the ICC. The problem are not only the journalists, though there is only one Afua Hirsch, and she has given up on legal reporting. Yes, journalists are ignorant of the legal issues that count, floating on surface of communiqué journalism and ruminating the accused’s press releases; even much more ignorant in the Common Law world than in the Civil Law culture. Nevertheless, they could be taught – some of them at least.
    But the real problem, the crucial problem are the editors. And short of the neutron bomb, I really see no way to remedy this. :-((

  6. Mark Kersten says:

    Alexander – thanks very much for your comment.

    I must disagree with you. Surely it must be the responsibility of the ICC and its communications people to communicate the Court’s work in a manner in which journalists (and anyone interested) can understand. Journalists aren’t going to go out and become experts in international criminal justice. The Court’s decisions and work must be made accessible through the use of accessible language. The burden, in my view, is not on journalists but on the ICC itself as well as its supporters. Indeed, this blog is intended to contribute in that regard by writing about the politics of the ICC and the Court’s effects in an accessible manner.

  7. Alexander says:

    Sorry Mark, I could not see your comment since we wrote at approximately the same time. Had I read it, I certainly would have rebutted it in my above posting, but a retro-edit or addition is not possible here.
    All your suggestions in your above article are very valid and inspiring. But you preach to the faithful. The real problem is on the recipient side of the court’s endeavours- and the media simply do not WANT to report accurately and thoroughly on international justice. The readers would certainly appreciate that, but their interest is not honoured.

  8. Alexander says:

    For the second time, our postings overlap, again without me seeing your second response while rebutting the erstwhile – that is annoying… sorry for that. You will have noted that we talk _past_ each other not only temporally, but also contextually.

  9. Selemani says:

    Thank you Mark for the post. It elucidates and grasps many of the issues that are in play leading to the tensions between the AU and the ICC. I would advise the media and certain commentators to move away ‘sensationalist’ reporting. Take for example many of the stories that were run in advance of the AU Summit stating that African signatories to the RS were considering pulling out of the ICC. This is completely unfounded. Even the very draft resolution sponsored by Kenya, Uganda and South Sudan spoke nothing to this. You will also see stories of the Ethiopian PM’s statement being attributed to the AU. This in my view is deliberately manipulative. As you rightly mention let us differentiate personal vendettas of certain leaders, the formal policy position of the AU and the views of African citizens INCLUDING those of the victims of these heinous crimes. You will find vast differences.

    However, there is one last thing that I feel contributes to these tensions that has been left out of the post. It is the concept of “Justice” and with it the sequencing of peace and justice. I feel western values and interests place an undue emphasis on punitive and retributive justice. The (O)AU’s position that can be traced from the creation of the African Commission on Human and Peoples’ Rights through to its approach to resolving conflict (for example the positions on the Zimbabwean Crisis, Kenyan PEV, the two Sudans as espoused in the Mbeki Panel Report and Libya etc) focuses more on reconciliation and primarily the peaceful settlement of disputes. This difference in perspectives also needs to be addressed at all levels, not just in the context of the work of the Court.

    • African says:

      Hi Selemani,
      A very interesting view on the concept of Justice in regards to peace in Africa. I think it’d be very convenient for Africans to use lack of emphasis on reconciliation and peaceful settlement of disputes in dismissing ICC. AU definitely lack the capacity and jurisdiction to pursue punitive and retributive justice among member. And even if they had jurisdictions, they’d never do anything because AU is a politician’s affair, toothless and simply do not give a damn about victims of savagery perpetuated by the political class that AU is working overtime to shield from prosecution.

      Ideally, our local jurisdictions are very much in line with the principles of punitive and retributive justice, just like ICC and never have I ever heard that being questioned or ever being a debate. For a country like Kenya where government’s only method of intervention in dealing with disputes stemming from historical injustices is extra-judicial killings and military operations, it’s laughable that lack of emphasis on reconciliation and peaceful settlement would be used as a scapegoat to dismiss ICC.

      The Kenyan case is very interesting as we took ourselves to ICC. We had two options to either set up a local tribunal that would facilitate the delivery of justice and reconciliation or go the International criminal tribunal way like Rwanda or the former Yugoslavia. But the same mortals now wasting our tax money in shuttle diplomacy rallying Africa to pull out of ICC system and their troops in Parliament refused and turned down a Bill that was meant to facilitate the creation of a local tribunal. They all sang in unison in Parliament “Let’s not be vague, let’s go to Hague”. I’m surprised that after inviting ICC, now we are calling them racists and accusing them of witch hunt.

      Africans, we can’t be that stupid and always crying foul even when we have failed in our responsibilities.

      • Wilson says:

        Kenyans did not take themselves to the ICC, Koffi Annan did. The Waki Commission at its conclusion prepared a sealed envelope containing suspected individuals. Taking the matter to Parliament unnecessarily politicized and prolonged the issue, Koffi Annan handed the envelope to Moreno Ocampo who then on his volition and discretion decided to initiate an investigation. Did Koffi Annan skew the investigation to cover certain individuals? That is indeed debatable considering his failed attempt to influence whom Kenyans should vote for.

        When the ICC finally turns around and cites nations such as the US, Britain or Israel for Iraq, Afghanistan and Gaza atrocities and demonstrates a zeal to investigate and where necessary prosecute without fear of favour save for the predictable veto at the security council, then the perception of the ICC might change, until then perception is simply the reality that is there for the world to see.

        When 93 Kenyan victims declare that they want no part of the ICC case for the OTP has failed to prosecute individuals they feel were they actual perpetrators and has resorted to pursuing the sham of a case against scapegoats, it is an earth shaking indictment of what the Kenyan cases are built on and the reality that the victims see the exercise as a charade when it is quite clear who called for and encouraged the violence to happen. Kenyans heard and saw, the individual(s) who called for mass action aka violence. It is time the real perpetrators were brought to book be it in Kenya or outside Kenya, VIP status notwithstanding. Perhaps the OTPs response to the 93 will be yet another spurious and unproven allegation of tampering and intimidation.

  10. mmnjug says:

    I agree with Mark wholly.
    But it should not be lost on us that 90% of the cases that ICC is handling from Africa have been referred to them by the countries themselves. The Kenyan case for instance was as a result of a failure of the parliament to create a local tribunal to handle the issue…not once,not twice, but thrice by the Justice ministers and once more by a member of Parliament. Thus, in as far as the Kenyan constitution is concerned, the ICC became the court of last resort to sort out the culprits and bring justice and closure to the victims of the 2007/8 violence.
    Finally, it will be important to see how these cases play out and also how ICC will play its role in the days to come.

    • Mark Kersten says:

      Thanks for the comment.

      I agree with you and am constantly surprised how easy it has been for observers to forget that the ICC encouraged local proceedings in Kenya. It only proceeded to issue summonses after the government demonstrated that it was disinterested or unwilling to investigate and prosecute crimes pertaining to the post-election violence itself. The AU, in my opinion, should not have asked the Security Council to ‘return’ the cases to Kenya but requested Kenya to demonstrate that it was actually willing and able to independently and effectively investigate and prosecute the crimes itself. The AU put the cart way before the horse.

      • mmnjug says:

        Thank you too.

        In Kenya, the funniest thing is that Dep President Ruto did say he was for the Hague issue because it would takes ages for their convictions to take place. His lackeys started the slogan, “Don’t be vague, go to the Hague” and the Hague it was. Now, here we are.

        As for the AU, I simply have no words for them. They lost the plot ages ago and it tells alot when the one championing for a return of the cases to Kenya is Museveni…..he who called ICC on Kony! The guy leaves a lot to be desired.

        But I liked the stand by Botswana, the only country that voted against the AU agenda.

        Finally, as I always say, these ICC cases are not about Uhuru or Ruto or Sang, they are about the IDPs still in camps, 6yrs after the violence. It is about justice, it is about fighting impunity that has pervaded Kenya’s electoral cycles which have been marred by violence since the re-introduction of multi-party politics in 1992.

        That is what this is all about. An interesting thing is that, one of the perpetrators/sponsors in 20017/8 violence has been highlighted for the same indulgence during 1992 violence by the recently released TJRC Report. These cycles of violence need to end and it may just take ICC to end them, that is why I am for ICC Uhuru and Ruto being president/deputy or not!

        Thank you.

    • Wilson says:

      The ICC Kenya cases are on their death bed, it is only a matter of time and they will most likely end in no conviction. The ICC is simply looking for an exit strategy in which it saves the court face. Like the OTP often does, you make the spurious claim the DP said “because it would takes ages for their convictions to take place”, he may have said he prefers the Hague option, but he did not talk about the time taken to convict, that my friend is a figment of your imagination. In regards to 1992, 1997 and 2007 violence, the OTP has charged the DP with the Kiambaa church burnings, however we have a good friend and associated of the former PM free who in his own words implicated himself as an elder who ordered the youths to engage in the violence. The youths who participated in the burning said they did not do anything without the blessings of their elders. If in doubt listen and decide. The same individual is named in the AKiwumi report. It is such hard evidence that makes it clear that the ICC has the wrong individuals before it:
      Complete BBC Interview: http://bbc.in/WGKNW6

      http://fb.me/20aNaj0Rf — 2012 Kenya Presidential Campaign
      Human Rights watch notes in its report: http://www.hrw.org/sites/default/files/reports/kenya1211webwcover_0.pdf

      Republic v. Jackson Kibor Jackson Kibor, an ODM politician, was arrested on February 20, 2008, and charged with incitement to violence. In a January 31, 2008, interview with the BBC, Kibor, recognized as an opinion leader in Eldoret, declared “war” against Kikuyus and promoted their removal from the area. Kibor was released on bond on February 28. The case was to proceed to trial, but on April 6, 2009, the attorney general’s office withdrew the charges. The withdrawal of charges, known as a nolle prosequi, does not require any official justification from the state. However, a lawyer in Eldoret told Human Rights Watch that the case was withdrawn in part because the prosecution never submitted into evidence the recording of the BBC interview. A judicial official also told Human Rights Watch the withdrawal of the Kibor case was based on the absence of the BBC footage.

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  12. fredokono says:

    Reblogged this on FredOkono and commented:
    A remarkably balanced and rational piece – the kind of debate we should be having on the ICC, not the self-serving hypocritical jingoistic tirades we have seen in recent times!

  13. william pace says:

    Dear Mark, again, it is a very good piece. I should clarify that I do not make the point i am making about the failure of the international and major national media to the media in press briefings, etc. I make this point in NGO or academic settings where the issues are being debated. If the Court is criticizing the media in forums being reported on, that is another matter. Mine was a more political, intellectual observation for consideration by those who might be concerned and could assist in addressing the issue.
    One more point. It is mostly true that the ‘editor class’ are people, at least in the most serious media organisations, very linked in with the foreign policy elites – who are a class very linked in with academia – thus another reason why i made the link between academia and media on this.

    Today, for example, in a meeting i was attending, two of us raised the issue of the recent UN Security Council decisions on Mali and DRC peacekeeping and peace-enforcement – potentially major decisions which could have tremendous impacts – which could be tremendously constructive or destructive in how the new ‘robust’ peacekeeping measures are operationalised. I do not think i have heard or read one article on this in any major media ? I hope i am wrong – but if such potentially major developments in ‘maintaining international peace and security’ are not being covered even minimally – how dangerous is this?

  14. william pace says:

    I forgot to add, that your article will inspire the CICC to attempt to restart our media ‘education’ efforts. in the 3 years running up to Rome, CICC, HRW, AI and others held briefings for the media 2-3 times a year to update the UN press corp on the developments – and with all the UN renovations and dislocations, we let this effort fall off and we should start it up again.

    i agree with you that attacking the media is not a good strategy – and i know my communications staff fully agree – and hope we can develop strategies along the line you suggest – but keeping in mind the scale of the challenge we are confronting – and we would benefit on continuing more confidential discussion of these issues.

    • Mark Kersten says:

      Thanks again for the comments and clarifications. I should reiterate that I appreciate what the CICC does and hope to see it continue holding the Court – and its critics – to account with honest criticism.

      I’m glad to hear that we agree that criticizing the media is not a good strategy and I’m heartened that the CICC will restart media ‘education’ programmes. It sounds like a very useful project. This is also something that the ICC coul invest in – ie. giving subsidized ‘bootcamps’ to media, especially to those in affected countries. I think the ICC could also invest in strengthening its communications staff and having them – or Court officials – regularly and consistently available for ‘media availabilities’ where they update, in non-legalese, all of the major developments from the previous week(s). Otherwise, they leave it up to bloggers and media to decipher!

      Thanks again and all the very best!

      • Alexander says:

        I continue to strongly disagree with Mark here in this instance (not otherwise), and I feel that he is not quite on the plane with William Pace, though he asserts to be so. This may be a misperception on his part.
        There is a fundamental – if well-intentioned – misconception about (notably African) media and their role here. I have written for them; I know that. The bootcamps that Mark thinks about, already do exist; they are funded, and have operated for some time (e.g. Wayamo Foundation). Their effect has been next to zero; and on the contrary, they have even been COUNTER-productive, as can be easily shown and demonstrated.

        The issue here is not – and I say this from knowing the media in question quite well, better than Mark – that of one court haughtily taking over the heads of its presumed recipients, keeping a snotty wigged “pro attitude” plus stiff upper lip, and telling journalists to become more deferential. There is indeed no need to be deferential, because there is enough to criticise about the ICC, as any international jurist knows. To criticise from a knowledgeable perspective, that is.

        The real issue is – and let me underline this again, so that it finally might seep in – that these media do not WANT to write (or report) about the ICC and its work interestingly, knowledgeably and critically. They expressedly do not want. Who do you think you are addressing with your – Afua Hirsch? She has given up on legal reporting, and she knew why. They Kenyan media, exempli gratia, misreport every single day about the ICC, addding one egregious falsehood to the next. They do so because they are paid to misreport, not because the Court does not address them properly.

  15. Maya says:

    This is certainly an interesting article, full of criticisms, ideas and constructive proposals. I have voiced my opinion about these issues in the comments section on a few occasions, and I wouldn’t want to repeat the same observations and criticisms. Also because Mark’s article – though admirably thoughtful and constructive – is, in my opinion, not going to change the fundamentals of the problem / discussion.

    At the end of the day, I completely disagree with statements like this: “The allegations of the ICC being biased against Africa are a distraction from the Court’s work and its potential role in international politics.” I don’t see how one can still credibly argue that this is a distraction. By now, after six or so years (= the entire history of the Court’s real-time operation) of constant tension between Africa, the AU and the ICC, it should be clear that this is the single most important issue with which the Court is grappling. This is no longer about perceptions – this goes to the heart of what the ICC is and should be. I find William Pace’s comments disturbing because it proves beyond any doubt that the key people at the heart of the IJ enterprise just refuse to see or engage with the criticisms emanating from Africa. It’s premised on some naive belief that if only we explain long enough that we are do-gooders, mean no harm, want the world to be a better place, that surely those Africans will finally understand that they are misguided. “They, the Africans, just don’t get it but we can make them understand.”

    Despite that rather harsh remark, I sympathize with people like William. He is operating within the constraints which he has inherited (background, education, etc.) and he sincerely believes this is the only way forward. It may well be that he is right in some real-politik policy-making sense.

    I do, however, continue to believe that the media can try to sell and embellish this IJ endeavor all they want, but the truth is that many people see right through it and realize that this has become a grossly unfair and neo-colonialist enterprise. Forget words like “plot” or “racism” – this distracts from the substance of the criticisms lying at the heart of “neo-colonialism” and “double-standards.” Until the Court shows the resolve to actually investigate non-African countries, non-African leaders, its paeans to justice will ring hollow to the subaltern. By all means, the CICC can and should spend time and resources and explain to the Africans – both the victims and the critics – the aims of the IJ enterprise. But until the CICC and the rest of the NGO world manage to a) “bamboozle” the Great Powers into submitting to the Court’s jurisdiction, and more realistically perhaps b) convince the Court’s officials to press ahead with controversial and truly explosive investigations in real hotspots like Israel – the subaltern will rightfully claim that your version of justice is not impartial and not fair. Unfortunately, no media outlet, no spin doctor can obscure that truth.

  16. redpoz says:

    Perhaps we could even “turn around” the discussion and say out loud that at the present time Africa (” “) is the most difform continent from the standard of justice supported by the ICC.
    Than, it is no suprise that most of the cases and investigations of the Court focus in Africa.
    This, of course, has many different reasons and it’s considered here only as a matter of fact.

    I mean, the ICC has been built on a legal structure based on “euro-american” standards, standardas which required centuries to be met both on philosophy of law and on practice.

  17. Pingback: Anton’s Weekly International Law Digest, Vol. 4, No. 3 (4 June 2013) | Anton's Weekly International Law Digest

  18. dan says:

    Reasons why Kenyan case proves this ICC court is a kangaroo court, a court also used for political assassination and its not about justice or fighting impunity as cunningly sold by western media and there loyal African salesman
    Reason 1.
    Kenyan case was not referred to ICC by the Government of Kenya neither by the security UN security council. but it was sole started by the then prosecutor Luis Ocampo, who justified his action is to teach African leaders a lesson.

    Reason 2.
    A key prosecution witness admitted lying in Kenyatta’s case his evidence was that he had been a guest of Kenyatta at a meeting in State House, Nairobi, on 26 November 2007. OTP-4 said he had been there as a representative of the Mungiki, described as a secretive mafia-like gang of organised criminals inspired by Kenya’s Mau-Mau fighters.

    Kenyatta’s defence lawyer told the court in a written submission “After the confirmation hearing, on 25 May 2012, OTP-4 resiled from his evidence and admitted he had lied and was not present at the meeting as alleged. OTP-4 has also admitted lying about another meeting at which he alleged he was present with Mr Kenyatta and Mungiki personnel on 17 November 2007.”

    Kenyatta’s defence lawyer noted that the prosecutor was no longer listing OTP-4 as one of her proposed witnesses. At the pre-trial hearing she had also been relying on his evidence to establish that Kenyatta and Muthaura had met Mungiki members at a key planning meeting in January 2008. The witness had admitted in 2010 he was not present at the meeting but his statement was kept from defence lawyers for two years and not disclosed until after the confirmation hearing.

    The ONLY eye witness the prosecution entirely relied on to get this case to trial. testified he lied, What sort of justice do you call that for the victims of the Post election violence .

    Complains about him being a liar was raised by the defence, but the prosecution during the confirmation hearing and the chamber during its decision choose to believe him. Facts about him is well known.

    Reason 2.
    KEY witness number 8 alleging being threaten by ICC from withdrawing as witness in the Ruto case at the ICC.

    Reason 3.
    Another three witness, retracted their testimonies against Uhuru case siting they were couched by political opponents of uhuru to assassinate him and the court still confirms the charges.

    Reason 4.
    The prosecution had lined up a total of about 30 witnesses to testify against Kenyatta and Muthaura, but 12 have dropped out.

    Reason 5
    Prosecutor defence is that the drop out of large number of witness is cause of death, intimidation. then the so called witness who have died and intimidated, resurrects from the grave and Sworn affidavits to the ICC president of how they lied and were couched and bribed by some human rights and members to lie against Uhuru and ruto.

    And then you tell me to believe this Court seeks Justice for Africans. The witnesses speak volume what the ICC is a kangaroo court.

  19. william pace says:

    Apparently, the discussion continues and i should comment on more recent replies. The previous respondent – Dan – is likely working for the defense. Fair enough. But, let us consider the truth, that the Kenyan and East African NGOs, not the international NGOs, have clearly presented: the ICC made every effort and the AU commission headed by Kofi Annan, made every effort, to seek a Kenyan judicial solution to the alleged crimes, and only after 3 or more years of refusal, did the AU commission turn over the ‘boxes’ to the ICC. My own perception was that the ICC was very reluctant to take this jurisdiction.

    Another observation: now we have a defendant(s) at the ICC that not only have more money that the Office of the Prosecutor, but more financial and even legal resources than the entire court. And the power of an entire state apparatus.

    Third observation to previous reply is that it is a flat out truth that there would not be a Rome Statute without the strong support of the African governments in Rome in 1998. The US-demanded vote was 120 yes, 7 no. The Western group – Europe, US, Canada, Australia, New Zealand is about 40 governments – so twice as many non Western governments are primarily responsible for this extraordinary treaty – and the Africans and South American were fundamentally crucial. US, France, China, India governments, Vatican and the dictatorships were the main opponents in Rome. US and France though presented many good elements of the treaty, but they and China wanted a Security Council (read veto) controlled ICC. Russia voted yes. 27 African states, of the needed 60 states, ratified the ICC treaty between 1999-2002. This was also while the Bush 2 administration was waging a world-wide campaign to kill the ICC.

    To say the major issue is whether the ICC is ‘really’ an anti-African court is simply not accurate or true. African governments have been the only ones to refer crimes in their countries to the ICC. CICC national and international members have been campaigning fiercely for non African situations to be referred to the ICC. (The CICC as a whole does not advocate on specific situations for many obvious reasons.). Any state party, including the 34 African state parties could refer situations out of Africa – Colombia, Georgia, etc. But, governments tragically do not refer each other, which is why the 120 governments gave the ICC prosecutor the power to ask the judges to approve taking on a jurisdiction – as was done only in the Kenya case.

    The human and humanitarian campaigns against empires, dictatorship, war, slavery have not been “Western”, but i believe, “anti” Western since the Western empires were the worst perpetrators of massive human rights violations, and what we now recognize as ‘crimes against humanity and genocide.’

    While certain African heads of government are primary and most vocal ICC opponents, the truth is that many, probably most of African government officials and certainly most of the African human rights and international democracy NGOs continue to be strong supporters of the ICC.

    I think that even during the last 6 years of anti-ICC AU head of state resolutions, more ratifications of the ICC treaty have come from Africa than any other continent.

    Lastly, i find the observation that the media are paid not to report the truth and so we should give up on them as tragic and depressing. I have lived fairly long now and i have seen the media – and now social media and technology – to be the vanguard of democracy, justice, human rights and the rule of law (not the rule by law).

  20. Alexander says:

    If you observe, say, the Kenyan cases carefully, you will see that the Court *HAS* taken up Mark’s suggestions and has actually improved some things, as to outreach aspects. This is encouraging.

    On the other hand, if you look at the media, both national and international, the quality of their ICC reporting has, if anything, become worse. And I have laid open _why_ this is so in Kenya and in Africa.
    However, I am a bit at a loss to explain why the same is ostensibly true for the international media as well. It is really not the fault of the Court, they in fact do much more in this outreach and engagement field than ANY national court anywhere in the world, and amazingly so.

  21. Pingback: Africa and the ICC | Maison de Liberté

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