There have been about 30 cases before the International Criminal Court (‘The Court’). All involve individuals from either the Central African Republic, Côte d’Ivoire, Sudan, Democratic Republic of the Congo, Kenya, Libya, Mali or Uganda. Whilst scholars have debated whether this is evidence of The Court unfairly targeting Africa, they do agree that systemic issues plague the institution. I would argue that it is these systemic issues which cause a regional focus on Africa. British Queens Counsel, Karim Khan, has very recently taken over The Court’s prosecutorial office. Khan has been described as “tough” and “a fiercely clever advocate”. But will he be capable of correcting the alleged bias against African defendants and encourage more imaginative approaches to address international crimes in the region?
The task ahead of Khan will not be an easy one because of the numerous systemic issues that plague The Court. Notably, the power held by the “Big Five” over the United Nations Security Council (UNSC). Neither the United States, China nor Russia are members of The Court, yet the UNSC has the power to refer situations to The Court or defer The Court’s investigations or prosecutions. The only UNSC referrals to date have been of African situations, Darfur in 2005 and Libya in 2011. Therefore, the UNSC exerts great power over The Court and the permanent five members can exercise their veto to prevent investigations into their own crimes. This creates a situation where non-African cases have been less frequent, despite being just as deserving of The Court’s scrutiny.
The Court is indeed founded upon a deliberate exclusion of crimes that would have placed The Court in a better position to address its alleged prosecutorial bias against Africa. Prior to the creation of The Court, The International Law Commission, through state, inter-governmental and non-governmental consultations, produced a Draft Statute. Included in the 12 drafted crimes were the crimes of colonial domination, other forms of alien domination and wilful and severe damage to the environment. However, the Special Rapporteur was forced to remove several of the drafted crimes due to state disapproval. It is unsurprising that such disapproval was forthcoming, particularly from those states that would risk being prosecuted for their colonial crimes, including in Africa.
The Office of the Prosecutor’s (OTP) policy of only prosecuting the “most responsible” for crimes, including crimes against humanity and war crimes, means that the OTP’s motivation to conduct rigorous investigations is somewhat undermined. Furthermore, in the instances where States have used The Court’s self-referral mechanism as per Article 14 of the Rome Statute, the OTP has been inclined to target rebels as opposed to government officials. It is thus highly questionable whether The Court has a deterrent effect. It is of critical importance to emphasise that African cases should not be avoided, and the seriousness of atrocities committed on the Continent discounted. However, The Court does a disservice to the individuals and communities affected by the crimes when it focuses on the narrative of a “single perpetrator” and fails to deliver the kind of justice sought by victims. This consolidates the perceptions of bias toward Africa as Western and other powerful actors are permitted to act with impunity, redirecting The Court’s attention to Africa’s perceived lawlessness.
The Court’s prosecutorial strategy must be critically re-evaluated as it makes admirable promises that it has proven incapable of guaranteeing. Notably, “end[ing] impunity” for grave crimes and “respond[ing] to the suffering of victims and communities affected by them”. This is reflected by the immunity enjoyed by the global superpowers and The Court’s unsuitability to addressing the root causes of conflict. Such promises should only be made when The Court is taking a more concerted effort to enhance the judicial capacity of African States as opposed to being narrowly concerned with “regaining” its legitimacy.
The OTP set six strategic goals for the 2019-2021 period, including increasing prosecution success in court and achieving improved efficiency of preliminary examinations and investigations. Karim Khan’s predecessor, Fatou Bensouda, has said that her term as Prosecutor saw several “accomplishments”. Counted among the successes were the prosecutions of more African nationals in the Al Mahdi and Ntaganda cases. However, these high-profile prosecutions do not detract from the fact that a significant number of non-African situations remain in the preliminary examination stage. It is thus expected that Khan will expedite these examinations and despite the political challenges, further efforts to ensure that crimes committed by non-African actors do not go unpunished.
If the systemic issues plaguing the OTP, and more widely, The Court, are not addressed, the next nine years with Khan at the helm will have limited prospects of improving the credibility of The Court. Whether Khan is positioned to take The Court beyond Africa whilst demonstrating a more responsible approach to the African region will depend on the OTP’s willingness to implement bolder and more sensitive strategies. The selectivity in The Court’s prosecutions demonstrates that the rule of law does not apply to all, particularly the UNSC permanent five. Finally, victims are politicised to justify the narrative of a single perpetrator, meaning that the true healing that could be realised through more victim-centred justice is ignored, and the cycle of violence continues.
Adjoa Assan is a fifth-year student at Western Sydney University studying a Bachelor of International Studies/Law and a Bachelor of Applied Leadership and Critical Thinking. In 2017, she was selected to represent the Academy of Western Sydney University at a Democracy and Citizenship summer program at Stellenbosch University, Cape Town, South Africa. She has a particular interest in African affairs and global perspectives, founding the first Africa-focused student society at Western Sydney University – the African-Australian Youth Collective. Adjoa would like to work in the areas of international diplomacy, policy-making and human rights, also pursuing opportunities at multilateral institutions.
Adjoa is an intern with the Australian Institute of International Affairs NSW.