Following the twenty-seventh African Union summit, it seems brighter days may lie ahead for the tumultuous relationship between African states and the International Criminal Court (ICC). In the wake of the summit, which took place earlier this month in Kigali, Rwanda, numerous reports suggested that African states stood up in support of the ICC and actively prevented the issue of a mass, Africa-wide withdrawal from the ICC landing on the official agenda of the gathered African heads of state.
Following the collapse of the cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto, the need to expend valuable political and diplomatic resources on condemning the ICC as “biased” and “neocolonial” seems to have dissipated. Still, tensions between African states and the ICC are unlikely to evaporate any time soon, and there were still pockets of dissent among certain African officials.
One outspoken critic of the ICC’s interventions in Africa and role in global politics was the presiding officer of the Economic, Social and Cultural Council of the African Union, Joseph Chilengi. During the summit, Chilengi lambasted the Court’s record:
“How can the Security Council made up of America not a member and state party to the ICC, Russia not a member and state party to the ICC and all other countries who are not members be given prosecutorial right to refer a head of state to the ICC?
“What kind of international justice system is that? This international justice system is constipated with a lot of nonsense, and the consequences will come back to haunt us again.”
Few would, indeed could, argue that there is balance on the global political playing field upon which the ICC plies its trade. It has and continues to favour the powerful. The Court has not been able to transcend the global institutions and regimes, like the United Nations Security Council, that reinforce the might of great powers, often at the expense of weaker and developing nations. It also hasn’t managed its relationship with heavily politicised bodies like the Council or with powerful states particularly well. But neither has the ICC established an “international justice system”. One simply does not currently exist.
In 2009, professor of law Cesare P.R. Romano observed that there was no international judicial system because the existence of one would imply “a level of coordination that does not exist yet”. More recently, Stephen Rapp, the former Ambassador at-large for War Crimes Issues under U.S. President Barack Obama, bluntly pronounced that “[t]here isn’t a global system of justice, just some cases in The Hague and a few other places”. At best, there currently exists a loose and thin network of actors and institutions that espouse and pursue international criminal justice. It only works sometimes, and not always on the basis of the gravity of crimes or the need for accountability, as the absence of any justice in Syria, South Sudan and North Korea make clear. The application of this network remains piecemeal and, despite the permanency of the ICC, ad hoc.
These two observations — that no system of global justice currently exists and that international criminal justice is applied unevenly across the globe — are not unrelated. On the contrary, it is the absence of a more coherent and consolidated system (or at least more entrenched network) of global justice that permits international criminal justice to be applied so asymmetrically. Thus the conundrum for opponents of the ICC, including those seeking to undermine the institution by having African governments withdraw their membership in the Court, is that doing away with the ICC would likely exacerbate rather than alleviate the conditions that produce the uneven application of justice in the first place. Continue reading