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.
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.
- 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.