I was tempted to answer the above question in JiC’s first-ever one-word post: “No.” However, in the past few weeks a number of individuals, including some whose views I respect greatly, have told me that they believe that the ICC is racist. I thus felt compelled to grapple with the question.
I recently had the opportunity to see a talk by and meet Courtenay Griffiths, the chief defense lawyer for former Liberian President Charles Taylor at the Special Court for Sierra Leone. Griffiths believes that the racism which he sees as pervasive in the domestic adjudication of crimes in Western countries has been transplanted into international criminal law:
“If one goes down to the Old Bailey…on any given day if you troll around the court, you’ll find that roughly ninety percent of all the defendants on trial in that Court are, guess what? Black. …What we’re seeing in terms of international law currently is the replication of that association between criminality and black-ness which one sees at the national level not only here in the United Kingdom but in any significant Western country with a black population.”
It is important to note that levying the charge of racism against the Court does not simply bring into question whether the ICC is biased or selective, two critiques often raised with the Court by its critics and often admitted by its more honest proponents. No, the bludgeon of calling the Court racist takes the matter one step further by suggesting that the ICC targets African contexts because they are African.
No honest, self-reflecting advocate of international criminal justice can say he or she is satisfied with the reach of the ICC. It is selective and that is a problem. Further, some, including myself, are wary that the ICC’s practice of eagerly cozying up to the UN Security Council will only act to entrench the selectivity and bias of international criminal justice further.
But, while problematic, the Court’s selectivity does not mean that the ICC is a racist institution. Defenders against charges of the ICC being a neo-colonialist institution often point to the fact that thirty-three African states are signatories of the Rome Statute and members of the Court. That’s no paltry number.
Furthermore, African states have engaged, and continue to engage, on a significant level, with the Court. African states lobbied heavily to successfully ensure that an African, Fatou Bensouda, was named the successor to Luis Moreno-Ocampo as the Court’s top prosecutor. Some states have seen cooperation with the Court strategically. The Government of Uganda, for better or worse, viewed its self-referral to the ICC as an opportunity to increase pressure on the Lord’s Resistance Army.
One might now ask, well then why do some African member-states describe the ICC as neo-colonial? There are a few reasons for this.
First, in the context of African politics it is important to realize that it remains popular to describe international institutions as neo-colonialist bodies unduly and unfairly targeting Africa and Africans. The charge is seemingly levied as much because it retains purchase in domestic politics as it is because its authors truly believe the ICC is a neo-colonialist institution bent on focusing on Africa.
Second, while the rhetoric against the ICC may be lofty, much of it is intended for the ICC as it has functioned under the direction of Moreno-Ocampo. It was telling when Jean Ping, the African Union Commission’s Chairman and a vociferous opponent of the ICC’s role in Africa, remarked:
“Frankly speaking, we are not against the International Criminal Court. What we are against is Ocampo’s justice — the justice of a man.”
The bad blood between many African states and the ICC does not derive from the obvious fact that all of the ICC’s official investigations and prosecutions have taken aim at African contexts. As William Schabas rightly argues,
“The root of the problem is not an obsession with Africa but rather a slow but perceptive shift of the Court away from the apparent independence shown in its early years towards a rather compliant relationship with the Security Council and the great powers.”
African states have always been skeptical of the UN Security Council’s permanent five, a group from which they have continuously been excluded, being the determinant of international peace and security. In this context, the increased proximity of the ICC to the realpolitik machinations of the UN Security Council make African states uneasy. One reason so many African states supported and joined the Court was precisely because it retained independence from the Security Council. That independence has shrunk in recent years and, with the Court enthusiastically taking on the Council’s referral to Libya and subsequently being instrumentalized by the intervening powers, the Court’s independence may well be on shaky ground.
None of the above, however, addresses what I believe to be the worst implication of calling the ICC racist. If the Court is racist, then it holds that African states have supported and engaged in a racist process. The racist critique would suggest that these African states have been somehow fooled into joining the Court by duplicitous, white, Western states. But who truly believes that states like South Africa, Ghana, Uganda, etc. are, to put it bluntly, that stupid? What African state would willingly join a Court that was racist against it?
Claiming that the ICC is racist is thus to believe that African states and Africans in support of the Court are virtually agent-less in their conduct as states. In this account, they could not have decided upon their own volition, out of their own political interest, or out of a commitment to end impunity to join the ICC. They must have been powerless against the persuasion of Western states to join the Court and aren’t smart or strong enough to not join an institution that is racist against them. Not only is this an erroneous reading of the relationship between the Court and African states, but, in the end, isn’t this removal of agency part of the problem in racism itself?
There are serious problems facing the ICC. It is selective and its independence today is not as secure as before. But to call it racist is not only wrong, it deflects from the real problems facing international criminal justice.