from Africa in Transition

Misaligned Incentives Handcuff the ICC

November 17, 2016

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Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

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This is a guest post by Cheryl Strauss Einhorn. Cheryl is an adjunct professor at Columbia Business School.

Burundi, Gambia, and now South Africa have all recently announced their intentions to withdraw from what they deride as a “biased” International Criminal Court (ICC). The permanent tribunal responsible for investigating crimes against humanity, genocide, and war crimes that was created in 1998. It’s the latest indignity to the court that has been weakened not only by misaligned incentives that enable it to bring cases globally and yet rely mostly upon member states to enforce its actions, but also by the cozy relationship that has emerged between the ICC’s members and its cases. Thirty-four of its 123 members are African states and all thirty-one individuals that the office of the prosecutor has charged with crimes since the ICC began operating in 2002 are African.

Since the court doesn’t have a police force, its supranational mission has fallen largely to its African member states to execute, meaning that the ICC needs those countries to carry out arrests even as they need, as sovereign nations, to conduct foreign policy initiatives that may involve the individuals being accused of a crime. That’s proven to be an unrealistic expectation.

A year ago President Omar Hassan al-Bashir of Sudan, whom the ICC indicted for charges of crimes against humanity and genocide related to the Darfur conflict dating back to 2003, attended an African Union summit in South Africa, where he could have been arrested–and indeed a South African high court judge forbid him from leaving the country pending a hearing on whether to hand him over to the ICC. But back in 2015, South Africa’s President Zuma visited Sudan to reinforce political, economic, and social relations between the two countries which already have sixteen bilateral agreements in a number of fields including trade, agriculture, defense, policing, arts and culture, social development, and scientific cooperation. Result: Bashir was let go.

South Africa is not alone in shirking enforcement duty for the ICC. Bashir has evaded arrest for years; in 2013, ICC-member Nigeria also declined to arrest Bashir when he attended a conference there. But again, Sudan and Nigeria have had a long history of economic, cultural and social ties. Sudan was offering scholarships for Nigerian students to study at its universities back then, but now ties are even closer. In August they announced that they’d work together to diversify their economies away from being so dependent upon oil revenues, partnering to build capacity in the film industry. More than five million Nigerians live in Sudan today.

The court’s predicament is further complicated by its inefficiency, only five individuals have been tried in fourteen years. Yet by some estimates, the court’s activities have cost at least $1.5 billion.

Thus the ICC doesn’t just suffer from the fact that major countries like the United States, China, and Russia have refused to subject themselves to the ICC’s jurisdiction. There are endemic problems in supranational bodies that must rely upon member nations to behave uneconomically in order for the organization to function. Yes, of course not all decisions should be made based upon economic factors–especially those related to genocide and war crimes–but evidence suggests that the ICC is having a hard time operating in its current form.

Incentives drive behavior and when an incentive is behaviorally salient, organizations, like countries, are responsive to incentive-based cues.

What may make the African nations change their behavior? As of now, it appears that the answer is nothing, for they’ve decided the value proposition of belonging to the ICC isn’t strong enough and so they’ve decided to drop out and move on.

More on:

Sub-Saharan Africa

South Africa

International Law

International Organizations

Burundi

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