Africa and the International Criminal Court

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Introduction

In July 2008, the chief prosecutor of the six-year-old International Criminal Court (ICC) presented evidence that Sudanese President Omar al-Bashir committed genocide, crimes against humanity, and war crimes in Darfur. The announcement rekindled a debate over the purpose of the world’s first permanent court dealing with grave crimes. The ICC has focused its initial efforts on Africa, but some on the continent are questioning the court’s ability to provide justice. Meanwhile, the United States, initially one of the ICC’s most fervent opponent, appears to be softening its position on the court.

What is the International Criminal Court?

Established in 2002, the ICC is a permanent court to try individuals who commit the world’s most serious crimes: genocide (the extermination of a group of people based on race, class, or creed), war crimes (violations of the Geneva Conventions), and crimes against humanity (systematic abuses based on political, social, or cultural differences). The Court will determine its jurisdiction over the crimes of aggression (as yet undefined) at a review conference in 2009. The ICC does not supersede the authority of national courts; rather, it is a "court of last resort," governed by the principle of complementarity: It will only act when a national government lacks either the will or the capacity to prosecute a crime committed within its jurisdiction. Proceedings before the ICC may be initiated by a state party, the prosecutor, or the UN Security Council. As of July 2008, 108 countries had agreed to be bound by the provisions of the Rome Statute, which established the ICC. Cases can only date from the time of the court’s inception in 2002. The United States signed on to the Rome Statute during the Clinton administration, but in 2002 the Bush administration revoked the U.S. signature.

What cases are before the ICC?

Four situations have been publicly referred to the Prosecutor of the ICC: Three state parties (Uganda, Democratic Republic of the Congo and Central African Republic) have referred situations occurring on their territories, and the UN Security Council has referred the situation of Darfur, Sudan. Two potential cases were dismissed in 2006 (Venezuela and U.S. actions in Iraq), and five others (Central African Republic, Cote d’Ivoire, and three that have not been made public), remain under analysis. The following four investigations are ongoing:

• Uganda. The Court has four outstanding arrest warrants for top-level members of the Lord’s Resistance Army (LRA), including its leader Joseph Kony. The ICC does not have the power to arrest these four persons; such arrests are the responsibility of state parties. Kony refuses to negotiate with the Ugandan government unless the ICC drops its indictments. As a result, Ugandans, including victims of the LRA, have accused the ICC of undermining the country’s peace process.
• Democratic Republic of the Congo (DRC). In March 2006, Thomas Lubanga Dyilo was surrendered to the court by the Congolese government after a February warrant for his arrest. His trial was set to begin in June 2008, but has been delayed because ICC judges determined the prosecution had withheld evidence from the defense. Lubanga, a militia leader in the country’s northeast, stands accused of recruiting children under the age of fifteen to fight in the DRC’s civil war. Two other Congolese rebel leaders were indicted by the court in July 2007 as coperpetrators of four counts of crimes against humanity and nine counts of war crimes. A third rebel leader was indicted for conscription of child soldiers in August 2006, but his warrant was not publicly released until April 2008.
• Darfur, Sudan. The UN Security Council voted to refer the issue of Darfur to the ICC in March 2005 in response to ongoing reports from UN experts and others about atrocities committed against civilians on a mass scale. The ICC prosecutor told the UN General Assembly (PDF) in October 2006 that the court has started pretrial investigations, including more than fifty missions to fifteen countries, the screening of close to 500 potential witnesses, and three missions to Khartoum to assess national proceedings. In May 2007, the court issued warrants for Ahmad Muhammad Harun, minister of humanitarian affairs, and Ali Muhammad Ali Abd-Al-Rahman, a janjaweed militia leader. In July 2008, the ICC’s chief prosecutor presented evidence that Sudanese President Omar al-Bashir had committed genocide, war crimes, and crimes against humanity in Darfur. The court has several months to decide whether to indict Bashir.
• Central African Republic. In May 2008, the court indicted Jean-Pierre Bemba Gombo, leader of the rebel group Mouvement de Libération du Congo (MLC) for crimes against humanity and war crimes.

Why are so many ICC cases in Africa?

The prosecutor of the ICC has encouraged self-referrals, and the only such referrals have been from African countries. While the ICC has received some 1,700 communications to investigate alleged crimes in 139 countries, 80 percent of these communications have been found outside the jurisdiction of the court. This is "not a question of picking on Africa," says John Washburn (PDF) of the American NGO Coalition for the ICC. "The UN Security Council referred [Darfur], and the other countries came forward voluntarily." Some international law experts say the weakness of Africa’s national legal systems has led individual countries to refer situations to the ICC. Most African states have yet to implement the Rome Statutes in their domestic legislation, write Olympia Bekou and Sangeeta Shah in Human Rights Law Review, which is the first step toward retaining domestic jurisdiction. "Strengthening domestic prosecutions so that the ICC does not have to intervene should be the ultimate goal of every state," they write.

Others say despite the need for Africa to strengthen its domestic judiciaries, the continent is showing its commitment to international criminal justice. The African referrals to the ICC show "the resolve the African governments have to say that impunity must end," ICC Deputy Prosecutor Bensouda said in an interview with Newsweek.

What is the U.S. position on the ICC?

After initially opposing the ICC out of fear it would be used for politically motivated prosecutions of U.S. personnel abroad, Washington seems to be softening its stance on the court. When the Security Council voted to refer the issue of Darfur to the ICC in March 2005, the United States abstained rather than vetoing the referral. This act moved the United States "from a posture of active opposition to the very existence of the court to a position much closer to… acquiescence in the court’s existence even though it had problems with its conception," said CFR Senior Fellow Lee Feinstein in an interview with CFR.org. Washburn notes that the United States has set up a formal channel of communication between the State Department and the ICC to work on Darfur, headed by the State Department’s legal adviser, John Bellinger II.

Some experts say the U.S. position is still ambivalent. "It is encouraging that you no longer see a strong effort within the Republican caucus in Congress or within the Pentagon or the State Department to dream up new initiatives to oppose the court," says David J. Scheffer, director of Northwestern University’s Center for International Human Rights. "But that doesn’t mean the United States has now turned the corner to seek out ways to cooperate with the court." U.S. legislation continues to penalize countries that are signatories to the Rome Statute (The United States objects to the statute on the grounds that by allowing the ICC to try Americans, it threatens U.S. sovereignty). Since 2002, the United States has sought bilateral immunity agreements (BIAs)—which protect U.S. soldiers from the ICC—with as many countries as possible. Under the 2004 Nethercutt Amendment, those that have signed on to the ICC but refused to sign BIAs are penalized with cuts in foreign assistance. As of August 2006, some one hundred BIAs had been signed, and fifty-three countries had publicly refused signing (PDF).

What is the future of the U.S. relationship with the ICC?

Many experts think the best way for the United States to protect its military is to engage with the ICC. A Stimson Center report (PDF) by Victoria K. Holt and Elisabeth Dallas, based on extensive interviews with military personnel, says the U.S. government needs to inform the military about the ICC to reduce military anxiety, address U.S. interests directly by participating in the Court’s proceedings, and close any gaps between U.S. law and the crimes within the ICC’s jurisdiction. Scheffer argues that if the United States played a leadership role in the ICC, it would have the power to influence the docket of the court.

What criticisms are leveled against the ICC?

Critics say the tribunal:

• Exacerbates current conflicts. In Uganda, the LRA’s Joseph Kony is refusing a peace deal unless the ICC drops its indictments against himself and three other LRA leaders. Ugandans are increasingly dissatisfied with the ICC, which they say fails to respect their desire for traditional reconciliation and is undermining efforts for genuine peace in their country. The UN Security Council can postpone an investigation for twelve months, but most think this is unlikely. "Why would anyone want to help him [Kony] out?" asks Washburn.
• Unfair treatment of defense. Lubanga’s defense lawyer says the defense team has been given a smaller budget than the ICC’s prosecutors, his evidence and witness statements have been slow to arrive, and many documents are impossible to read because they have been so heavily redacted by the ICC, who seeks to protect the identity of victims. The International Bar Association has corroborated the defense’s concerns.
• Choice of cases is not transparent. Human rights organizations charge that the prosecutor has not been clear about his choice of cases. Prosecutor Moreno-Ocampo has defended his choices as the "gravest admissible situations" within his jurisdiction, and the charge he has brought against Lubanga as the one for which he had the strongest evidence. "Because this is the first case there are a great many unresolved issues and potential bugs in the system about how the ICC is to conduct judicial proceedings," Washburn says. "The prosecutor rightly wanted to have a case that was very simple, very clean, with very strong evidence."

On the other hand, some experts say the Sudanese government’s opposition to the court, as well as the LRA’s demands for amnesty, indicate the ICC has quickly established itself as a force for rule of law. Scheffer says the performance of the court thus far is "encouraging." The ICC’s "capacity to produce deterrence is clearly dependent on its being successful in trying people and putting them in jail," says Washburn. But, he adds, the ICC "is here for the long haul."