Q&A on the ICC and Africa: is the criticism on the legitimacy of the Court legitimate? Part 1

I gave a lecture last night at the Grotius Center on the Lebanese Special Court (more on this some other time) where my blog was mentioned as being updated at least weekly! So I have no other choice than to make this a reality…
I wanted to share with you an email Q&A session I did with a researcher in ICL on the relationship between the ICC and Africa. There were 6 questions, so I’ll post 3 today and 3 later. Please comment at will!

Question 1: There seems to be an increasing agreement among scholars that the ICC has an ‘image problem’ on its hands when it comes to its involvement in African states. Obviously, the crudest critique that has been leveled at the Court and the Office of the Prosecutor is that it’s a neo-colonialist institution. In your opinion, does the ICC’s troubles with African nations (i.e., what seems to be a growing distrust from the African Union) amount to a mere ‘publicity’ issue, or do they have a basis in the actions and rationales of the ICC?
In relation to the « image perception » of the ICC in Africa, I think it is only partly grounded in reality. Indeed, when the ICC is accused of investigating crimes only in african countries, one musn’t forget that all, but for Darfur, are self-referrals. So it is a little disingenuine for African leaders to turn around some years later and claim that this is not what they wanted. Moreover, statistically, it’s hard to ignore the fact that Africa does host some of the most violent and active civil wars in the world, with regional dimensions that are quite important.
The Darfur case is very different because it is a Security Council referral imposed on a country without its consent. There are actually quite strong arguments in international law against this procedure, which is suprisingly little discussed in academic littérature, but I don’t think that’s the focus of your article. Politically, I really do believe that this is where the disatisfaction takes a new turn, because it seems like a unilateral imposition of international will, in a sort of « neo-colonialist » way, as you pointed out. Before that, the main point of contention in Africa had been in Uganda, where it was considered that the ICC was hindering peace. But it hadn’t led to such large-scale disatisfaction.
Another point, which is in relation to another one of your question, is that there is not one « african public opinion ».  African leaders will try and protect themselves, so will be weary of an active ICC. But there are other sources of disatisfaction. For many human rights activists, it is inaction in many situations which is considered a problem. The same is true of victim right’s advocates who consider that the reparation mechanisms and protection of victims and witnesses are insufficient. And even among the « justice » community, you will find disagreements, between the tenants of international prosecutions through the ICC, and the defenders of more flexible methods of transitional justice, such as traditional mechanisms (gacaca in Rwanda) or truth commissions.
It is therefore very difficult to « map » a unidimensional « african opinion » on the ICC. And although I’ve voiced my concerns and criticism about the ICC, especially the prosecutor, time and again, I don’t really buy this « anti-african » criticism.
Question 2: Critics of the ICC have claimed that the OTP has been politically pragmatic or even opportunistic in its choice of cases, going after rebel groups in Uganda, Congo and CAR while leaving alone government leaders – possibly due to the OTP’s dependency of state corporation during investigations, possibly because of their status as Western allies. In your opinion, are these allegations well-founded?
The cases being investigated do seem to confirm the allegation. The most clear-cut case is Uganda, where the direct rebels are being prosecuted. In CAR, the OTP even manages to indict the main political oponent of the DRC President ! in DRC, this is also largely true, even if the position of the rebel leaders vis-à-vis the governement has been more fluctuating in recent years.
The real question is whether the OTP can realistically act differently ? I don’t think that Ocampo is pandering to western interests. It is a real pragmatic position of needing the cooperation of the States in the investigation of the crimes. I believe it was necessary to proceed in this way in the early life of the ICC. What kind of criticism would the prosecutor have heard had he chosen cases impossible to investigate and prosecute? In this sense, there does seem to be an evolution in the approach of the prosecutor. In other situations he is now looking at, most notably Kenya, but also Colombia and hypothetically Gaza, the focus is on “both sides” of the conflict, therefore including the government.
Question 3: In the same vein: does the OTP run the risk of becoming a tool for the governments that have made self-referrals? One person I interviewed considered this a very real risk, and said that the ICC will only have reached a sufficient level of maturity once the OTP starts going after ‘the big fish’ (government officials etc.) like del Ponte did at the ICTY – regardless of whether these leaders are supported by the west (as Museveni, for instance, has been). Do you agree with this?
Which leads to question 3, as you rightly put it. Which is in fact two questions.
The first one relates to  self-referrals. As you know, it was not at all considered as an option or discussed during the negotiations of the Statute before and in Rome. You are right to point out that a self-referral will always carry a risk of political manipulation of the ICC by the government. When the ICC prosecutor announced the investigation in Uganda in a press conference with Museveni, it obviously sent a such a message.
However, I’m not sure that the situation is as “bad’ as described by some. In Uganda, even if the OTP has not opened any cases concerning government officials, it has been very clear in not giving in to Museveni in relation to dropping the arrest warrants in the context of the peace negotiations. More generally, as I pointed out earlier, I don’t think it was necessarily a bad strategy initially, when the court was looking for its first cases. I think that today, the OTP seems to be leaning towards more autonomy.
The second part of your question relates to case-specific prosecutorial strategy. The “big fish”/”small fish” debate has been going on as long as there have been international tribunals. The first ICTY case, Tadic, was a typical situation where the tribunal went for whatever it could get. There is no doubt that if Tadic had been arrested 10 years later, he would have been transferred for trial in a national court. 
Is the same true for the ICC? I’m not too sure, because, to say the least, the strategy of the prosecutor seems a little obscure sometimes. Of course, he didn’t open an investigation against Museveni, but he did indict the top leaders of the LRA. In CAR, Bemba is clearly a “big fish”. And the same is true in Darfur, with the indictment of Bashir. As for DRC, the policy seems to be “crime specific” rather than “person specific”. The prosecutor seems to have chosen a crime, child soldiers, and then chosen an alleged perpetrator (although he has slowly evolved towards a focus on sexual violence, which has created so many problems in the Lubanga trial, as you probably know). The same is partly true in CAR, where is a strong insistence on rape.
Personally, I must admit that I don’t have a fixed opinion on the “perfect” prosecutorial strategy.
The “big fish” theory is very popular, but I’m not sure how effective it actually is. For one, one has to wonder towards whom the court is trying to be “legitimate”. The arrest and trial of Milosevic and now Karadzic have done nothing to increase positive responses towards the ICTY in Serbia. And if any reconciliation is to happen, it will have to include the Serb population.  Linked to this is the relative notion of “big fish”. For example there is a lot of talk about Mladic not being arrested yet, while the international press never mentions that his superior is currently on trial (I’m sorry, I don’t recall his name right now… which kind of proves my point I suppose…).  Second of all, is it so illegitimate for the Prosecutor to focus on the crimes, which are labeled as the worst, rather than picking and choosing the perpetrators, which will also always be a political decision?

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