The International Criminal Court does not, and cannot, exist outside politics and its activities reflect that.

‘Cheers and chants, tears and embraces, rhythmic stomping and applause’: such was the reaction by diplomats at the close of the Rome Conference in 1998 establishing a statute for the creation of an International Criminal Court (ICC). Such wild displays of enthusiasm are a distant memory today. Burundi, South Africa and now the Gambia have all announced their plans to withdraw from the Court and a host of other African countries may follow: Kenya, Uganda, Namibia, Chad and the DRC have all been touted as next in line.

Defenders of the ICC are understandably defensive. The absence of the world’s major powers—the US, Russia, China—has long posed a legitimacy problem for an ostensibly global court. But now even once staunch supporters as South Africa are jumping ship.

Ban Ki-moon, the UN Secretary General, was reportedly ‘totally shocked’ by South Africa’s announced withdrawal last week. One wonders why. Already in 2013 the African Union was calling for African states to cease cooperating with the ICC, and since last year has gone further in openly pushing for their departure.

Bias is the most common complaint about the court—bias specifically against Africa. Ethiopia’s Prime Minister Hailemariam Desalegn has gone so far as to accuse the ICC of ‘hunting’ Africans because of their race. And just this week, in announcing his country’s departure, Gambian Information Minister Sheriff Bojang dismissed the court as an ‘International Caucasian Court’. To date, all but one ICC investigation has focused on Africa; Georgia is the single exception. All of the individuals indicted by the ICC—some 39 so far—have been African.

South Africa and the Gambia’s recent announcements have forced the court’s liberal boosters to once more confront this charge and defend the court against its detractors. And yet, reading liberal international lawyers respond to these developments this past week, one is struck yet again by the hollowness of their arguments. Here I want to briefly consider just four examples—the most common defences against the charge of bias—before suggesting that this whole debate in fact distracts from more fundamental problems with the ICC.

The Court Has African Officials

The court’s alleged bias, Alex Whiting complains, is a charge ‘relentlessly peddled’ by its detractors. (To be fair to Whiting, he also accepts that bias is also a ‘concern for many fair-minded observers’.) But it’s also a charge, he insists, that is simply wrong:

The notion that the ICC Prosecutor targets Africa out of some kind of bias against the continent is both ludicrous and pernicious. The current Prosecutor is African (and was the Deputy Prosecutor under the first Prosecutor) and many of the prosecutors and judges at the Court are African. … There is simply no agenda at the Court to single out Africa. Full stop.

An indigenous legal elite represented in the ICC hierarchy: case closed. But of course to identify Africans in the court’s leadership is a red herring. A black president, attorney general, and senior judges in the US has hardly stopped that country and its criminal justice system reproducing systemic racism. More to the point, though, the ICC’s judges don’t decide what cases to investigate (although they do authorise the Prosecutor’s choices). And no one seriously thinks that Fatou Bensouda, one-time Justice Minister and Attorney General in the Gambia, is single-handedly pursuing a vendetta against her continent.

Whiting has some insight into this, having worked in the Office of the Prosecutor. And it would frankly be surprising to find an ‘agenda at the Court to single out Africa’. But institutional biases don’t require an overt agenda. Racism in the US judicial system, to return to an imperfect analogy, is perpetuated not (only) by overt racists but by institutional biases not always, on their face, immediately apparent.

Insisting that Bensouda doesn’t have a biased agenda is very different from suggesting that the court, and her office in particular, are subject to political pressures—pressures that militate, if not towards targeting Africa, then certainly against pursuing extra-African crimes in which the world’s major powers are implicated.

Avowals of apolitical neutrality would ring less hollow if the court’s functionaries had not enjoyed such a cosy public relationship with the US. Luis Moreno Ocampo, Bensouda’s predecessor, went out of his way to assure US officials that he ‘could not imagine launching a case against a US citizen’. For all the beltway brickbats under the Bush administration, Washington was quite happy to see the ICC do its bidding in Sudan. And under Obama, détente gave way to a warm rapprochement. ICC officials quickly started receiving invitations to the State Department and White House. By 2009, Ocampo was giving distinctly political briefings to US diplomats, even advising Susan Rice, Obama’s hawkish Ambassador to the UN, on how to reassure China about regime change in Sudan.

Ocampo’s eagerness to please Washington reached embarrassing levels when in 2011, as the seven-month NATO bombardment to ‘protect’ Libya’s citizens dragged on, the Prosecutor announced he had evidence of Libya acquiring ‘containers’ of ‘Viagra-type medicaments’, with Gaddafi personally ordering the rape of hundreds of women. By evidence he actually meant simply claims made by Rice to support the US’s efforts to escalate military intervention, a task to which he was only too happy to lend his office’s support.

African States Were Key Backers of the ICC

How can the court be biased against Africa, defenders demand, when African states were key supporters of the effort to create an international tribunal in the first place? Sure, the court’s jurisdiction may be such that a lot of extra-African crimes fall outside its reach, but that didn’t stop African states supporting negotiations at Rome and subsequently signing up to the court. For William Pace, head of the NGO group Coalition for the ICC, South Africa’s withdrawal now is a betrayal of that history and in particular Nelson Mandela’s legacy. David Scheffer, former US Ambassador for War Crimes at Large, also insists, with no less chutzpah, that Mandela should be remembered primarily as a ‘champion for the enforcement of international criminal justice’ and an end to impunity. Others may have a different recollection of where Mandela stood on the reconciliation and forgiveness versus criminal prosecution debate in the face of the apartheid leadership’s impunity.

While some African states may well have been motivated by principled support for an international criminal court, many others faced competing pressures. As Kamari Maxine Clarke has written, there is ‘another reality that contributed to the perceived zealousness of African participation in ICC jurisdiction: the expressive will to demonstrate a commitment to international membership through the signing of successive treaties.’ It is worth recalling her argument at some length:

The related political questions that shaped African participation are connected to how shortly following African independence movements in the 1960s and 1970s, African economies became deeply enmeshed in debt-ridden obligations and dependence on International monetary lending and raw material exports. And by the end of the Cold War as new economic liberalization agreements were signed, the impact of international competition on local economies became increasingly difficult. But this restructuring took place alongside expectations of democratization and adherence to new internationalisms in which discourses related to the rule of law, good governance, and membership to a world system constituted what was described as ‘the new world order’. In relation to this reordering, new index metrics for measuring the viability of state democracies developed. The signing of international treaties provided relevant index increases for measuring state commitments to good governance and compliance. . . . These measures contributed to the boosting of indexes by which trade, measures for economic viability, and the renewal of IMF loans provided the basis for state support and economic viability. Signing the Rome Statute and related African participation in ICC treaty membership provided the terms for concretizing African commitment to good governance.

In short, Clarke argues, any moral imperative for deterring future violence was accompanied by concrete ‘neoliberal underpinnings that provided incentives for participation’.

While the history of African support of the ICC is more nuanced than either cares to acknowledge, Scheffer and Whiting are still eager to remind us that African states have themselves invoked the ICC’s jurisdiction over the past decade. If almost all the ICC’s investigations are focused on African states, several were referred to the Court by those countries themselves: DRC, Uganda, Côte d’Ivoire, Mali, Central African Republic. ‘None of these State Party self-referrals were technically initiated by the ICC, as they were launched by each of the relevant sovereign African governments’, Scheffer quips.

Scheffer’s careful wording—‘technically’—is telling. As he well knows, these self-referrals did not emerge out of a vacuum. Uganda’s followed ‘encouragement’ from Ocampo, while the DRC referred its territory only under significant European pressure. This isn’t to say that these states did not have their own interests in inviting the ICC to investigate. Museveni’s referral asked the Prosecutor to investigate narrowly—‘the situation concerning the Lord’s Resistance Army’ and not government forces’ horrific crimes—instrumentalising the court for his own political purposes. Ocampo officially interpreted the referral as including ‘all crimes committed in Northern Uganda’ but unofficially there was a tacit understanding with Museveni that he would prosecute only rebel leaders. More generally, as I have written elsewhere:

In Uganda, only the leadership of the LRA faces prosecution while Museveni, a Western ally, enjoys impunity. In Sudan, a single-minded campaign to indict Bashir has awarded rebel movements an undeserved imprimatur and undermined efforts at a lasting peace. In the DRC, the court has prosecuted small-fry militia leaders while turning a blind eye to the ravages of the Kabila government’s forces and the Ugandan and Rwandan armies that have plundered the country for decades

Much the same is true of the Central Africa Republic where Francois Bozizé sought to use ICC intervention to suppress opposition to his repressive and dictatorial rule. These leaders’ use of the court and its referral procedure hardly speaks to a principled commitment to the institution.

It’s Africa’s Own Fault

A related argument, set out by Scheffer in some detail, holds that if there is bias against Africa, it is African states’ own fault. If in practice state referrals to the ICC have all been self-referrals, this need not have been, or be, the case. As originally conceived, referrals would allow one state party to refer crimes allegedly being perpetrated in the territory of another state.

‘The fact remains’, Scheffer notes, ‘that no African State Party to the ICC—and there are 34 of them constituting one of the largest and well organized blocks in the court—has used its power to refer to the ICC Prosecutor any situation of alleged atrocity crimes outside of Africa that does not involve that African nation.’

African leaders could have readily overcome the perception of bias against Africa arising from Security Council referrals (Darfur and Libya), the apparently inexplicable African self-referrals, and the ICC Prosecutor’s judicially-approved undertaking to investigate alleged atrocity crimes in Kenya, by referring situations outside of the continent of Africa. They never chose that option and continue to fail to exercise it in parts of the world where the ICC can exercise jurisdiction

It’s a curious argument, for it says nothing one way or the other whether there is a bias, just that African states could overcome it by referring other extra-African situations. But as Scheffer well knows, if a situation is ripe for investigation and warrants referral by an African state, then it could—and presumably should—be open to investigation by the Prosecutor of her own volition using her proprio motu powers. The Prosecutor receives a constant flow of information about, and requests to investigate, situations around the world from NGOs, international organisations, interested parties and individuals. It’s just not credible to suggest that an African state referring a situation on another continent will bring to the Prosecutor’s attention crimes which have until then gone unnoticed.

And yet, Scheffer suggests, referral is ‘a powerful tool that African States Parties could utilize better to diversify the investigations of the ICC beyond Africa’. Perhaps, to be fair, a referral by a state party would put greater pressure on the Prosecutor to investigate than requests from NGOs or intergovernmental agencies. Yet it’s hard to escape the conclusion that this is a rather frank acknowledgment that without African states actively pushing for investigations of situations outside the continent, they will not otherwise happen.

Scheffer also overlooks the very real reasons why African states might be disinclined to refer, say, US crimes in Afghanistan or Israeli crimes in Palestine. Many of these are heavily dependent on US economic and military aid and are hardly inclined to call for the prosecution of their patron or its Middle Eastern satrapy.

Even if they were to refer such situations, there is no reason to think it would suddenly launch the Prosecutor into action. Bensouda must still decide whether the situation warrants a full investigation, let alone an indictment and prosecution. When the US, via the Security Council, asked her predecessor to investigate Libya amidst anti-Gaddafi protests, he was holding a press conference within days, with no on-the-ground investigation, naming ‘criminally responsible’ Libyan officials. In sharp contrast, when confronted with the UN’s own Fact-Finding Mission report on Israel’s ferocious attack on on Gaza in late 2008—a report that had found evidence of widespread war crimes and crimes against humanity—the Prosecutor took three years to decide that he could not even investigate. Of course, this time he had Rice counselling against any action.

More recently, the Gambia has been pushing the Prosecutor to investigate European states’ responsibility for the deaths of thousands of African refugees and migrants making their way to the EU. Indeed, the Gambia’s Information Minister Sheriff Bojang has cited the Prosecutor’s lack of interest in this attempted referral as one of the chief reasons for the country’s decision to leave the court.

Scheffer wants us to believe not only that African states can change the court’s investigatory focus, but that if they were really concerned about an African bias, they should ‘press the Security Council to refer . . . obvious non-African situations for ICC investigation, such as Yemen or the ISIS-fueled horrors in Syria and Iraq’. No doubt, in the face of African pressure, the US will be happy to see its proxy-bombing of Yemen before the ICC. Likewise Russia’s wholesale destruction of Syria. Neither power, after all, ever makes self-interested use of its veto.

A Flawed Court Is Better Than No Court

‘Better to have an imperfect court than none at all’, has become a commonplace in court commentary. ‘It’s like saying because we don’t catch all the criminals we shouldn’t hold trials’, Thuli Madonsela, South Africa’s former anti-corruption chief, has said in criticising South Africa’s announced withdrawal. But that’s not quite right. The problem isn’t that the court doesn’t catch all the criminals: it’s that it only appears interested in catching a certain class of criminals, while systematically indifferent to all other perpetrators.

It’s true, of course, that no criminal justice system is perfect. Lots of individuals who commit crimes in, say, the US are never caught. And that alone isn’t reason to abolish the criminal justice system. But what if police systematically ignored crimes committed by the wealthy and only arrested and prosecuted poor defendants. Or only defendants of colour? Could one so glibly insist that the criminalisation of one part of society alone is better than no trials?

But wait, the liberal cries out, we can still make the system better. Sure it’s imperfect, but that isn’t a reason to scrap it altogether. ‘The perception in parts of Africa and elsewhere that the Court is not impartial, and that big powers who are not members apply double standards, is undermining its credibility and effectiveness’, warns Kofi Annan, chair of the so-called Elders. ‘We urge all states to commit to universal, impartial International Criminal Court’. No doubt the US, China and Russia will be rushing to sign up, swayed by a group of retired statesmen formed under the sage counsel of Richard Branson and Peter Gabriel.

The court’s defenders, who insist that a reformed, impartial ICC is just around the corner, wilfully ignore the concrete reality of the present political juncture. They want us to evaluate international criminal law and its institutions abstracted from the real world, insisting that we weigh up the choice between no court and a court untarnished by politics, imperialism and neo-colonialism.

But the ICC does not, and cannot, exist outside politics and its activities reflect that. The court’s actual practices form a clear pattern: Western military intervention in Africa accompanied by the justificatory apparatus of ICC juridical intervention. In Mali, the Prosecutor’s investigation was opened in response to a referral by the short-lived military government of Amadou Sanogo, pushed by Paris which quickly sent military forces. Bensouda’s investigation, like those of her predecessor in Uganda and elsewhere, once again limited itself to one party to the conflict, focusing on alleged crimes by rebel fighters. Of government forces or French paratroopers, accused of their own atrocities, there was no mention. Much the same was true of Côte d’Ivoire in the wake of the post-election crisis and French intervention: charges were brought by the ICC against the defeated candidate, Laurent Gbagbo, his wife Simone and the Minister for Sports and Youth for ‘crimes against humanity’ during the post-election violence; none were filed against the French-backed opposition, also accused of widespread violence, or the intervention force itself. And in Libya, of course, Ocampo was more concerned with supporting US designs than the civilians under NATO’s ‘humanitarian’ bombs.

That military intervention in the continent by former colonial powers has been followed, almost without exception, by juridical intervention by the ICC, leaves Africans understandably suspicious. But if the ICC is not motivated by an anti-African agenda, as Whiting insists, it is no less concerning that it acts, without fail, in concert with its North Atlantic backers. And from this perspective, the Prosecutor’s recent decision to launch an investigation into South Ossetia does little to assuage that concern. It may be the court’s first extra-African investigation, but it is of a piece with its earlier interventions. It reproduces a Western narrative of Russian aggression that justifies not intervention in Africa now but NATO’s largest build-up of military forces in eastern Europe since the Cold War.

None of this should make us romanticise the motivations of states withdrawing from the ICC. Burundi’s primary concern may well be Bensouda’s announcement of an investigation into post-election violence; South Africa’s the embarrassment faced by Zuma in the wake of al-Bashir’s June 2015 visit to the country; and the Gambia’s a potential crackdown on the political opposition as Yahya Jammeh seeks his fifth term as President.

But nor should their self-interest distract from a trenchant critique of the court. Writing in New Left Review in 2014, I made the following assessment:

That the Court’s investigations have coincided with imperial concerns is apparent; that they are motivated by simple racism is less evident, although this is not to downplay the court’s role in reproducing a longstanding dynamic of racialization in international law. On the Court’s record, crimes against humanity and war crimes are acts committed by non-Westerners. The Hague’s courtrooms replicate a historical pattern in which, as Makau Mutua puts it, ‘morality comes from the West as a civilizing agent against lower forms of civilization’. Images of a white-suited prosecutor stepping from his helicopter onto the hot plains of Africa—one of Ocampo’s many unfortunate penchants—reproduce, like the very idiom of international criminal law and humanitarianism, the racialized metaphor of savages, victims and saviours: the violence of international crimes lies outside the civilized West; its victims are powerless, in need of saving by NATO intervention or US-trained human-rights lawyers. … far from ending the de facto impunity long enjoyed by the powerful, the ICC has helped to institutionalize it. The Court’s selective and highly politicized interventions have operated to reproduce one-sided narratives of complex conflicts, demonizing some perpetrators as hostis humani generis, while legitimating military interventions in the name of humanity. The logic of ‘international criminal law’ on this model was spelled out with refreshing frankness by the former Prosecutor in a recent interview on Canada’s CBC. NATO and the Court should work hand in hand, serving one another: ‘Integrate the SC, the ICC, NATO forces.’ Once celebrated as an avatar of Kantian cosmopolitanism, the ICC has served rather to shield and strengthen the imperial powers, less a tool of international justice than the judicial concomitant to Western intervention.

Little has changed since then to warrant any different conclusion.

Tor Krever is a PhD candidate in law at the London School of Economics and a visiting research fellow at the Centre for Social Studies, University of Coimbra in Portugal.