Is the ICC selective? Yes. Is the ICC racist? No. (Cartoon: Cartoon Movement)
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 face of a racist institution?
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.
Justice in Conflict 
I’m not convinced that you can really settle the question on the grounds that you provide, for two reasons.
The first being your rather restrictive (implicit) definition of racism, one actually so restrictive that it’s hard to see how anything could be racist on the principles you imply. On the “because they are African” front you seem to invoke quite a high burden of intentionality – that race must be the over-riding deciding factor in a decision for it to be racist. But a decision can be racist in its effects regardless of its intentions, and it can reproduce and perpetuate existing racist systems without the principal actors really agreeing with it. Since Griffiths raised the domestic example, you may find it useful to look into institutional racism, a terminology coined precisely to deal with the fact that the UK police produced such consistently racist outcomes and exhibited consistently racist behaviours, all the while denying that they had any racist beliefs.[1] You also seem to imply that if subjects of racism in some way accept given institutions or policies, then those institutions or policies can’t be racist, pretty much by definition. Moreover, that it’s actually racist to call those institutions or policies racist! I’m sorry to say that this is a rather classical reversal, and not one with a proud heritage. It would mean that if there were significant ‘community leaders’ who accepted or conformed with apartheid or segregation or ethnic cleansing, then those things couldn’t be racist. Well, there were subject peoples (sometimes quite a lot of subject peoples) who participated in racist systems, but we don’t tend to think that settles the question.
This brings us to a second issue, which is the general neglect of power politics. You seem to offer two options. Either institutions are bad for those asked to join them, in which case they won’t join, or they’re good for them, in which case they will. Moreover, as with racism, to say that a country joined even though the institution was bad for them is to deny their agency and patronise them! But things aren’t so simple. There is indeed a debate to be had about whether membership in international institutions is ‘voluntary’ in any meaningful sense, especially for less powerful countries. In the case of NAFTA for example, it is plausible to see Mexico and Canada joining despite their distaste because they were responding to rules set by a hegemon and felt they were getting the least bad of a range of bad options.[2] It is possible to see this dynamic in relation to the ICC too: that dominant powers came to see membership as a sign of good citizenship and appropriate ‘development’ (like the performance of elections) and so African countries signed up because they felt it was the best political move (not because it reflected their true beliefs about justice and global governance). Moreover, it’s pretty convincing to me that smaller, weaker states would see an advantage to being inside a major institution, trying to push it in a certain direction, without that meaning that thought it was free of race politics. I won’t even get into how plausible it is to suggest that Benin or Lesotho have as much ‘agency’ in deciding these matters as France or Germany. International politics is not a freely arrived at social contract.
You might as well ask the same sorts of questions about democracy promotion initiatives or structural adjustment: why would states adopt these policies if they didn’t really believe in them? And isn’t it racist to deny their agency? But it would be a strange analysis, I think, which neglected the role of power here. Now, none of this shows that the ICC is racist, but it at least demonstrates that you can’t answer that question without some sharper tools both for analysing racism and for thinking about states and how they interact.
[1] Indeed, Colin Wight has a clear and interesting piece which expressly deals with agency/structure issues in light of ‘institutional racism’: Colin Wight, ‘The Agent-Structure Problem and Institutional Racism’, Political Studies, 51(4), 2003
[2] I borrowed this analysis from Lloyd Gruber, ‘Power Politics and the Free Trade Bandwagon’, Comparative Political Studies, 34(7), 2001
I read this post earlier this morning intending to respond as soon as I could. I just came back and find I have no need to respond. I wholly concur with everything Pablo K says. I read this post and immediately thought, “This analysis of racism is woefully unaware of the scholarly literature on the subject and quickly slides into harmful popular discourse around race that makes racism an overly personal and subjective phenomenon.”
On a related note, the legacy of international transitional justice, especially the strong retributivist strand, is to emphasize individual motives over structural analysis and thus oversimplify the nature and scope of justice. It seems the same harmful and reductionist phenomena is occurring here.
This is a simplistic view of racism Mark. Reducing complex issues in such a way is a shame. What needs to be done is to untangle who creates the ICC, for what purpose and also understand the epidemiological assumptions behind the so called transitional justice. These assumptions, are they universal or Western. Do they make sense at all to the ‘Other’ I mean, non Westerner?
Stating that African countries’ engagement with the ICC is evidence that the organisation is not racist without delving into the pressures, incentives, constraints and national politics of those participating countries is to thoroughly miss the point.
ICC is yet another organisation that the world, Africa in particular does not need.This organisation is a reification of the White man’s images and representations of the region that Africa cannot do anything meaningful on its own, yet it needs help on all fronts including Justice.
International law does not work my friend. Racism is inherent and the fact that we have different skin colour means that it is with us until the end of human race.
‘epistemological’ not epidemiological:)
‘The racist critique would suggest that these African states have been somehow fooled into joining the Court by duplicitous, white, Western states’…
The African states HAVE not only been fooled, something their leaders realised too late, they have also been coerced to cooperate with the ICC by powerful Western powers. Is it not strange how the US President, the leader of a nation that is itself not a member of the ICC, has refused to join the ICC and even threatened war if any of its citizens were ever to be arrested for crimes against humanity, has tied cooperation with the ICC to AID especially in the Kenyan case? This is the kind of obnoxious arrogance most Africans who are honest, and not mesmerised or been bought by the West, mistrust and detest. For such Africans to therefore buy the idea that the ICC is noble, impartial and well intentioned is laughable.
Sorry to jump on the criticism bandwagon here – I’d underline Paul’s comments about racism, but also add that you’re account of what it means to claim the ICC is neo-colonial is problematic. International law not only enabled the hierarchical politics of colonialism but was importantly defined by the political need to separate the world into spheres of civilization and barbarity, with the later needing to be administered by the former. So, the criticism is deeper than you suggest – Simpson, Anghie, Chimni and Miéville (and many others) give sophisticated and convincing accounts of the historical and contemporary pertinence of this critique.
Just to reiterate what my predecessors have already alluded to. In the US, which happens to have the most developed anti-racist system (though still very imperfect), there is a fundamental difference between intentional racism and so-called disparate impact. If a policy, though racially neutral on its face, has the practical effect of excluding / severely limiting a minority’s viewpoint, then that policy is racially discriminatory. Whether that amounts to racism qua racism is a somewhat different topic. But the point is indeed, as has already been stated, that there is no need for a smoking gun for racial discrimination or race to be an issue. In fact, Mark, under your model, there’s practically no way to discern racism bar the ICC issuing a resolution formally endorsing by majority vote racial discrimination as an official policy. Then, and only then, would your test of intent be met. Because if, say, Ocampo happens to say something racist, then what does that really say about the ICC as a whole anyway?
A separate issue that needs to be raised is that this post — and many others on the web — throw around these accusations of neo-colonialism, etc., but how many countries have — as a matter of policy — actually denounced the court in those terms? The AU doesn’t talk about neo-colonialism in its official resolutions? Who does that leave? I would be curious to know.
Thanks to everyone for your comments. I don’t want to try to tackle the points raised in a comment but rather mull them over and produce a new post in the coming days that deals with these issues, especially the definition of racism that I employed to discern whether or not the ICC was racist or not. Many thanks again for taking the time to share your thoughts on the post.
@Maya – you’re right that charges of neo-colonialism are not part of any official resolutions. They tend to be brought up in speeches or conferences. Indeed, the fact that these views are rarely spelled out in print has been highlighted by some academics. (see Chandra Lekha Sriram’s piece here: http://humansecuritygateway.com/documents/ISA_ICCAfricaexperiment.pdf)
Mark- this topic is desperate for intelligent commentary. It is so important. Please keep writing on it.
I would just add that an unhelpful assumption is that “African” states are homogeneously black African. We can talk about the targeting of Africa states as one conversation, and also racial dynamics in the Court as another. Obviously the two are deeply interconnected, but it would be worth going for specificity as you tackle this in the future (“African” doesn’t mean black, and vice versa). Also, you mention Uganda wanting to use the LRA, but it would be worth mentioning that in fact all three of the first African cases were self-referrals. Another counter-argument I use against accusations of African bias is simply that some of the most violent conflicts in the world are in fact happening on the African continent, and so it is logical a Court with this mandate would be working there. I also was curious, also to see Jean Ping’s comment in the midst of this, since she is clearly pointing to a gender dynamic that is unaddressed in your post here.
‘…Another counter-argument I use against accusations of African bias is simply that some of the most violent conflicts in the world are in fact happening on the African continent, and so it is logical a Court with this mandate would be working there…’
‘Most violent’ in the world on the African continent? Such as which conflict? Can you name EVEN ONE that instantly comes to mind and that rises to the level of the genocidal conflicts in Syria, Gaza and the West Bank, Pakistan, Yemen, Iraq and Afghanistan? Your claims are either ignorant or just dishonest, and very patronising. The conflicts in Africa are mostly low intensity power struggles that have been going on for years, and Congo and Darfur immediately come to mind. The death toll in those African conflicts comes nowhere close to what has been happening in the middle east and Pakistan, where US drones have been used indiscriminately to target ‘terrorists’ but in the process thousands of innocent people have died. Whole caravans are attacked to kill just one suspect, and it does not matter that women and children end up getting killed, injured and maimed for life. The same malevolent violence has been applied by Israel in the occupied territories. In all these instances, there hasn’t been a squeak of protest from Ocampo or the Western media about the perpetrators of these atrocities answering for clear war crimes at the ICC. Reason? The ICC has different standards for people of colour when they commit the same crimes, simple. I would challenge you to explain why Israelis, the US are not before the ICC. Why has an arrest for Assad not been sought by Ocampo as he did for Gaddafi? Isn’t he waiting for orders from the Western powers to do so? The hypocrisy, double standards and obvious racism is sickening.
Surely you are sarcastic, the number of people killed in the congo conflict alone is in the hundreds of thousands. The US could not even afford enough hellfire drone missiles to kill a hundred thousand people, the cost would be in the trillions of dollars.
Also bizzare that you lay the failure of the ICC to go after Assad at the feat of the west, correct me if I am wrong but I believe it’s Russia and China that have blocked even so much as an official condemnation of Assad, let alone his referral to the ICC.
Last I checked, neither Russia or China were considered part of the west, though perhaps they moved since the last time I looked at a world map!
Simple- (a) Syria has not signed or ratified the Rome Statute of the ICC (b) any attempts to indict Bashar al-Assad by the ICC would be blocked by Syria’s allies/patrons on the Un Security Council-such as Russia and China!
Hanna small correction Jean Ping Chairperson of the African Union Commission is a man. He is not pointing to any gender dynamic. Jean Ping was expressing african opposition to Moreno Ocampo’s patronizing attitude and cavalier attitude toward justice..
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Is it racist? Is it colonialist? These are perhaps separate but related questions. The conditions on the entirety of the African continent has been shaped so heavily by imperialism that any issue of international significance (i.e. that could be taken up by the ICC) can be traced back to an imperialist cause. Yet the ICC was created by those very same imperialist powers, and it serves the world order that they created and enforce on the rest of the world, the system of nation states. African states indeed have less agency because they were created out of colonialism. And yes, I understand that this implies that they will always have less agency under a nation state system. They join international institutions largely because the alternative is to be excluded from a world order to which there is no alternative. That is, it would lead to their being completely isolated and vulnerable. This would not protect them from the pressure that world order could bear down on them, but it would remove even a small voice in in the institutions of that still-hostile world order that they might otherwise have. Thus, there really is no choice. Only a country as powerful as the US can freely choose to join the ICC. The US, as it happened, was instrumental in the ICC’s creation. African states, being products of colonialism are systematically and perpetually in the periphery of the current global order, are not in that position. African states (as well as many other colonialist creations the world over) are compelled to join the ICC, the way a worker in a capitalist economy is compelled to find a job, be it making shirt sleeves or making bombs. So the ICC is most definitely a colonialist institution. The next question is, is colonialism inherently racist?
Good observations, and absolutely correct.
I.m confused- HOW are African nations COMPELLED to join the ICC? Even the smallest and weakest nation(in Africa or somewhere else) can REFUSE to join the ICC if it so desires(pace Turkey, India, Russia or China)!
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The ICC is one of the most complex transnational judicial institutions but from its recent activities, it seems it is more like a African or Balkan affair. Names like Milosevic, Karadzic, Lubanga, Koni, Bashir have all come up for war crimes, genocide and crimes against humanity all because such crimes are considered grave and should not go unpunished wherever they were committed we can even assume such crimes are abhorred under customary international law but what is amazing is that names like Bush have not appeared on any indictment for such crimes which were committed in Iraq and Afghanistan all because the USA is not a party to the Rome Statute and thus not a subordinate to the ICC. What an interesting maneuver from the “Great Defender” of international peace and cooperation who has the yam and the knife to suggest who has committed such crimes and be the next to stand in the box of the accused. Africa congratulations to you for the monster you helped create for when you try to bar the way to neo-colonialism you will be hailed as the perpetrator for such grievous crimes as those cited above.
The ICC is indeed racist. All an intelligent and educated person needs to do is to figure out its inner workings as well as the number of people prosecuted. In human resources management, there is something called disparate impact. For example, if a company is using a certain instrument to make hiring decisions and the impact is that certain people are systematically excluded from the hiring process and are not being hired, this company would face legal actions. Therefore, it is time that the ICC becomes the target of a legal action from leaders and/or citizens. Why didn’t the ICC prosecute Western Leaders who foment military coups in African countries? Where was the ICC when atrocities were committed in Iraq or Afghanistan? Where is the ICC when criminal actions are taken by Western leaders? An interesting example is that the French government organized and funded a rebellion in Ivory Coast. In most French-speaking African countries, France is behind most military coups. Why does the ICC prosecute the successive French governments behind these coups? In 2004, the French army killed civilians in Ivory Coast. When is the ICC going to care about this case? The ICC is acting the same way as the legal systems in Western countries. These legal systems are biased against Blacks and this is proven. The ICC is worthless and African countries should move away from it. The world does not need the ICC. How can Western countries that championed slavery, colonialism, and where racism is a daily experience for Black people can provide justice to the world?
Any reason Mark why the US still does not want to be part of it? I’d quote the African reggae singer Alpha Blondy here: La democracie du plus fort est la meilleur et c’est comme ca. (democracy of the strongest is the best and that’s the way it is!)
By the way Mark, in addition to the fact the US still refuses to be part of the ICC for reasons we all know, I forgot to add that IT IS YOUR SCHOOL london school of economics that granted a doctorate degree to Sayf al Islam El Gaddafi – who of course donated a lot of money to YOUR SCHOOL….Have you heard his interviews?? does he sound like someone who earned a doctorate from an English speaking institution (let alone fancy)???
so please the skepticism of White/Western institutions is legitimate…
The ICC is racist for all the good reasons and comments of previous posters, and because you judge people and organisations by their history and their actions, not by their words. It is so blindingly obviously institutionally and historically racist that for one to think otherwise, as you do from your article, reveals a total lack of understanding of what racism is and the history of the world over the last 200 years and more.
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Given that Russia(which of course is NOT an African state) has recently announced its withdrawal from the Court(it signed the Rome Statute but NEVER ratified it), one wonders how the ICC can be termed “racist”???
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