A Different Kind of Court: Africa’s Support for the International Criminal Court, 1993–2003

This article seeks to understand the contemporary crisis in Africa’s relationship with the International Criminal Court (ICC) by going back to the Court’s founding moment. It investigates African states’ participation in the creation of the ICC, asking: Which kind of international criminal court did African countries seek to establish when negotiating the Rome Statute? To understand their vision for the ICC, the article provides an interpretive and systematic analysis of statements by African diplomats on the establishment of the ICC as delivered to the UN General Assembly between 1993 and 2003. Identifying and analysing the most salient themes found in these statements, the article argues that African diplomats sought to establish a court that differed in important respects from the existing ICC. The African diplomatic vision of the ICC centred on particular understandings of universality, participation, complementarity, court independence and sovereign equality. Importantly, the creation of the ICC was never solely about justice; it was also about sovereign inequality and global order. The alternative diplomatic vision for the ICC makes sense of the contemporary critique of the ICC by the African Union and many African countries. This makes the contemporary crisis both intelligible and deep-seated. Africa’s relationship with the International Criminal Court (ICC) has seemingly nosedived. Since 2009, African state parties have made a number of decisions that have damaged the ICC’s project of international justice: deciding to prohibit cooperation * Associate Professor, Department of Social Sciences and Business, Roskilde University, Denmark. Email: lgissel@ruc.dk. I wish to thank participants to the ‘ICC and Africa’ roundtable discussion, organized by Sarah Nouwen at the conference of the African Studies Association in the United Kingdom in September 2016, for useful inputs to the initial research and members of iCourts at Copenhagen University for helpful comments on an earlier version of this article. All errors remain my own. 726 EJIL 29 (2018), 725–748 with the ICC in its cases against Sudanese President Omar al-Bashir and Libyan President Muammar Gadaffi, hosting wanted individuals, threatening to leave the ICC en masse and even voting indicted individuals into the highest office.1 In 2016, governments in Burundi, South Africa and Gambia announced their decision to withdraw from the Rome Statute, with Burundi’s decision taking effect in October 2017.2 Although the Court has 33 African states parties, the legitimacy of the ICC has been fundamentally challenged by African states and their regional organization, the African Union (AU). Scholars and practitioners have proposed different explanations for the current crisis, such as state elites fighting the Court because they want to avoid criminal accountability; governments objecting to the ICC prosecutor’s Africa bias or the AU seeking to assert its authority vis-à-vis a United Nations (UN) Security Council that ignores its deferral requests.3 To the ICC’s first prosecutor, the recent withdrawal announcements even aim to give elites free hand to attack civilians.4 These explanations have different and contrasting implications for our understanding of Africa’s relationship with the ICC. The focus on impunity suggests that governments are at odds with the fundamental premise of the ICC, an interpretation that begs the question of why they were so keen to ratify the Rome Statute.5 In contrast, if the crisis derives from objections to a perceived prosecutorial bias, it may signify a call for a truly impartial Rome system. In this sense, states may be questioning the current practice, rather than the mandate and idea, of the ICC. If Africa’s strained relationship with the ICC is instead about the AU and the UN Security Council, it should be understood within a broader context of global order. To gain a deeper understanding of the relationship between Africa and the ICC, this article goes back to the founding moment of the ICC and asks: which kind of international criminal court did African countries seek to establish when negotiating the Rome Statute? To answer this question, it analyses African states’ deliberation in the UN General Assembly about the Court’s establishment. It provides the first systematic study of statements by African countries in the negotiations to establish the ICC, 1 Ssenyonjo, ‘The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders’, 13 International Criminal Law Review (ICLR) (2013) 385; Vilmer, ‘The African Union and the International Criminal Court: Counteracting the Crisis’, 92 International Affairs (2016) 1319. 2 ‘Gambia Is Latest African Nation to Quit International Criminal Court’, The Guardian (26 October 2016), available at www.theguardian.com/world/2016/oct/26/gambia-becomes-latest-african-nationto-quit-international-criminal-court. 3 Mills, ‘“Bashir Is Dividing Us”: Africa and the International Criminal Court’, 34 Human Rights Quarterly (2012) 404; Reinold, ‘Constitutionalization? Whose Constitutionalization? Africa’s Ambivalent Engagement with the International Criminal Court’, 10 International Journal of Constitutional Law (2012) 1076; Schabas, ‘The Banality of International Justice’, 11 Journal of International Criminal Justice (2013) 545; Scheffer, ‘How to Move beyond South Africa’s Notice of Withdrawal from the ICC’, Justice Security (24 October 2016), available at www.justsecurity.org/33778/move-south-africas-notice-withdrawalicc/; Vilmer, supra note 1. 4 Moreno-Ocampo, quoted in ‘Gambia Is Latest African Nation’, supra note 2. 5 Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. A Different Kind of Court 727 identifying and interpreting the most salient African diplomatic concerns about the ICC: universality and participation; complementarity; independence and sovereign equality. From these concerns, it derives the African diplomats’ vision of the ICC and relates it to the contemporary African critique of the Court. The article argues that African states sought to establish a global court that differed in important respects from the existing ICC. This makes the ICC’s current crisis in Africa both intelligible and deep-seated. The article is structured in the following way. It first situates the study in the context of scholarship on Africa’s relationship with the ICC and summarizes the contemporary African critique of the ICC. It then follows with an introduction of the data and the methods of data collection and analysis, after which the article briefly discusses the international negotiations to create the ICC in the 1990s and early 2000s. The rest of the article presents the research findings by analysing the most salient African state concerns, from universality to sovereign equality. The article formulates the African diplomatic ICC vision and uses these ideas to understand Africa’s contemporary critique of the ICC. 1 Africa and the ICC: Towards Nadir? Most analyses about Africa’s relationship with the ICC centre on rupture: African states were initially very supportive of the ICC but then became critical of it. Scholars highlight how African countries ‘seemed infected with enthusiasm’ for the Court, which was an unexpected development given the nature and frequency of conflict in Africa.6 Signifying ‘the continent’s deep commitment’, Senegal was the first country in the world to ratify the Rome Statute, while most African states parties ratified it before 2005.7 Moreover, the ICC’s first three investigations took place on the basis of an invitation – the Democratic Republic of Congo (DRC), Uganda and the Central African Republic. A decade after the Rome conference, the relationship between Africa and the ICC ‘turned sour’.8 As a result, the AU Assembly and Secretariat as well as several countries have taken a number of hostile political decisions directed at the ICC project. The crisis was triggered by the prosecutor’s July 2008 indictment of al-Bashir for genocide, war crimes and crimes against humanity and deepened following the cases against members of the Kenyan and Libyan political establishments.9 While the Sudanese and Libyan situations were referred to the ICC by the UN Security Council, the investigation 6 Schabas, supra note 3, at 548; see also Jalloh, ‘Regionalizing International Criminal Law?’, 9 ICLR (2009) 445; M. du Plessis, The International Criminal Court That Africa Wants (2010). 7 D. Akande, M. du Plessis and C. Jalloh, An African Expert Study on the African Union Concerns about Article 16 of the Rome State of the ICC (2010), at 7. 8 Reinold, supra note 3, at 1088. 9 Prosecutor’s Application for a Warrant of Arrest against Omar Hassan Al Bashir, Al Bashir (ICC-02/0501/09-3), Pre-Trial Chamber I, 4 March 2009; for scholarship on the crisis, see Mills, supra note 3; Murithi, ‘Between Reactive and Proactive Interventionism: The African Union’s Peace and Security Council Engagement in the Horn of Africa’, 12 African Journal of Conflict Resolution (2012) 87. 728 EJIL 29 (2018), 725–748 of the Kenyan situation was initiated by the prosecutor.10 In these cases, therefore, ICC involvement was involuntary. The African critique can be summarized under four general points.11 i. Selective prosecution – so far, the ICC has only prosecuted African individuals. Until January 2016, when it launched an investigation in South Ossetia, Georgia, the ICC had only investigated African situations. Yet atrocities are also committed outside Africa. Given the prosecutor’s discretionary power, African states increasingly perceive the ICC’s pursuit of justice as being at best biased and at worst a ‘race hunt’.12 They voice ‘suspicion’ about the ICC’s ‘prosecutorial justice’ and a ‘perception of a double standard against African States’.13 Claims of Court bias are among the ‘most popular arguments’ in Africa.14 ii. Interference wi