With South Africa, Burundi, and the Gambia all having withdrawn or beginning the process of withdrawal from the International Criminal Court (ICC), the Court is now facing a crisis of sociopolitical legitimacy among other African countries. Some journalists fear South Africa’s exit will prompt even more countries to leave, and Uganda, Kenya, and Namibia have all threatened to leave the ICC. Interestingly, Namibia claimed it would stay in the ICC if the United States joined.
The ICC was formally established in 2002, though most of the drafting and negotiation process finished in the Rome Conference in June 1998. African governments were actively involved in establishing the ICC, likely due to collective memory of the South African apartheid and Rwandan genocide. Recently, however, relations between the ICC and African government have soured.
Opponents of the ICC have noted that all individuals ever indicted by the court have been from African countries. However, the prosecutor has only initiated two of those cases—indicting individuals from Kenya and Ivory Coast. The U.N. Security Council referred another two cases—Sudan and Libya—and the rest of the cases were brought by the states themselves. Recently, ICC investigations have been initiated outside the African continent. The ICC has studied at least five investigations outside of Africa, including Afghanistan, Colombia, Georgia, Honduras, and South Korea.
The ICC has found it difficult to separate itself from the West’s legacy of colonialism and oppression. The Rome Statute provides qualifications standards for judges presiding at the ICC, including representation of the principal legal systems of the world as well as geographic and gender diversity. The Court has tended to deemphasize African customary law, focusing instead on civil and criminal law systems.
Richard Goldstone, the first chief prosecutor of the International Criminal Tribunals for both the Former Yugoslavia and Rwanda, explains that the ICC focuses on crimes against humanity in Africa is because there are an alarmingly high number of war crimes committed within the African continent. Additionally, he argues that many African countries lack the domestic capacity to prosecute war crimes because their parliaments have failed to enact the necessary laws. Other human rights advocates point to testimony of citizens of African nations critical of the ICC, whom advocates claim are still supportive of remaining in the ICC. George Kegoro of the Kenya Human Rights Commission, and Luis Moreno Ocampo, former ICC prosecutor, have accused African leaders of exiting or threatening to exit the ICC to avoid judicial oversight of their alleged abuse of the law.
Still, the ICC has focused almost exclusively on crimes committed in Africa. Some of the most powerful countries in the world have not yet joined the ICC, including China, Russia, and the United States. The ICC has yet to initiate any investigations against citizens of nations that hold significant power in international law.
Jenia Turner, professor of law at Southern Methodist University’s Dedman School of Law, argues that the ICC can regain some of its sociological legitimacy by becoming a mixed court—composed of both international and national judges—explaining that “[a] less hierarchical international criminal justice system that relies significantly on national governments is likely to be better informed by diverse perspectives, more acceptable to local populations, and more effective in accomplishing its ultimate goals.” This is because local judges “are more likely to be attuned to the interests and preference of local populations.” This argument also reflects an emergent soft law norm—the principle of fair reflection—which requires that judicial selection be a fair reflection (i.e. a descriptive representation) of the society.
The accusations of anti-African bias facing the ICC can likely be attributed to both the historical wrongs of colonialism justified under international law and the inherent difficulty of applying international law equitably when international criminal jurisdiction requires a country’s consent. Either way, the ICC is facing historic opposition that could gain further traction and likely shape the court’s actions to come.