Category Archives: Africa

International Justice Tribune Podcast on ICC withdrawals and Africa Bias

For those who are interested, I recently did an interview for a new International Justice Tribune podcast series on recent developments at the ICC, including the reason why some States are leaving the Court and whether the ICC is biased against Africans. The discussion also goes into the political motivations of referrals and budgetary issues.



World Cup Interlude

Since the beginning of the World Cup, I’ve been racking my brain to find some link with international law to justify posting about it. I did find this unlikely link a few weeks ago, when Bashir was threatened with arrest if he showed up for the opening match. Since then, there hasn’t been much.

You could probably find some international law connection with the two Dutch supporters arrested for wearing orange mini skirts offered by a beer brand not a official sponsor. According to this article, there seems to be an exceptional national law that allows for the arrest. One would have to see the conformity of this with constitutional norms and international human rights standards…

Even more of a stretch would be to discuss the international law nature of FIFA regulations in light of its hypothetical status as an international organisation. It’s technically an association under Swiss law, with the national football federations (and not States) as its members  (thank you to an astute reader for pointing that out to me). But with some “outside the box” thinking, one could come up with a de facto nature as an international organisation, in light of its powers… I said it was a stretch! If that works out, what kind of international law responsibility wouldit have following mistakes made by referees, which are arguably its agents? When you see the outlandish decision disallowing the third US goal yesterday, it’s a legitimate question.

In relation to that, you could also make a study of international law interpretation when referees systematically penalize forwards trying to prevent the ball from going out for a goal kick, when the defender is blocking it. This is clearly an obstruction, as the defender never has any intention of playing the ball. But it is tolerated here, because beyond the black-letter interpretation of the law, it supposedly fits with the “object and purpose” of the rules. So the question beckons: does the Vienna Treaty apply to FIFA game rules?

Apart from these vague links with international law, the only topics I could think of are: the ridiculous decision of FIFA to prevent local vendors from selling food around stadiums to protect official sponsors, thus defeating the purpose of having a world cup in Africa, the surprisingly poor level of some of the major teams such as Spain and England, the unsurprisingly poor level of France, the more than annoying vuvuzelas, tolerated because they are supposedly “traditional”, when in fact they are a mere savvy commercial endeavor…

No, as much as I would want to, I can’t come up with any really relevant topics justifying a post on the World Cup on this blog…

Q&A on the ICC and Africa: is the criticism on the legitimacy of the Court legitimate? Part 2

Question 4: The increased dissatisfaction with the ICC from the African Union seems to be based largely on the al-Bashir indictment (please correct me if you think I’m wrong). Some ICC advocates might say that this is merely a sign of African despots guarding their future impunity, and thus, the AU criticism actually shows that the ICC is heading in the right direction – that is, going after ‘the big fish’. Do you agree with this? Also, should one differentiate between support from African leaders and support from the civil society in this regard, or do you think that disappointment with the ICC is widespread in Africa?
I think I’ve broadly answered this question within my previous answers. You are right in considering that the dissatisfaction with the ICC in Africa is largely due to the Bashir arrest warrant which has made other African leaders a little weary of ICC intervention in their affairs, without their consent. As for this meaning that the ICC is going in the right direction, I told you before how skeptical I am of the “big fish” approach, despite its apparent appeal. If you really want my opinion on Darfur, I have exposed part of it in an opinion on the Hague Justice Portal, where I comment on the recent Bashir decision. I actually have my doubts, both in international law and from a policy point of view, of the Prosecutor over-insistence on the genocide charge and his reading of the political situation in Darfur. But should the prosecutor have to “read” political situations? I put some general remarks on this at the end of question 5.
On the complexity of African support for the ICC, I mentioned previously the variety of actors involved who will all have different reasons to be dissatisfied or satisfied with the court, so I think you have a good intuition in asking this question.
Question 5: What could the ICC do to regain some of the legitimacy that it appears to have lost in Africa? (Someone has suggested that the court should expand its focus beyond Africa – might this be helpful?)
Again, I have already started to answer your question in my previous answers. Legitimacy is not this monolithic object that an institution possesses or doesn’t possess. The question makes no sense as a general question. The answer depends on who you are trying to be legitimate to. For a lot of Human Rights activists, the question of Africa is irrelevant. What constitutes the legitimacy of the court is whether it is prosecuting the crimes that these activists consider as important, be that child soldiers, or forced marriage. The same is true for victims of crimes. Generally, the Court will always be “legitimate” to some and “illegitimate” to others, depending on each person’s or group’s agenda.
Linked to “legitimacy” is the question of expectations. Depending on your expectations, your disappointment will be more or less strong. And I think this is the real question that runs through all your other questions. What are the expectations of the court, and are those expectations legitimate? In my opinion, in my cases they are actually not, and this is where perception problems arise. Indeed, fundamentally, this is a Criminal Court, not an actor in peace negotiations, not primarily a “reconciler” or a granter of reparations to victims. Of course, I’m not naïve, politics are everywhere. But it is totally different to acknowledge that the ICC is one actor in a complex international political scene, and another to want to “import” international politics within the workings of the court. For example, is it really the role of the court to prosecute both sides to a conflict? I’m not sure. More broadly, should the situations investigated be equally distributed across the globe? Again, I don’t think so. Defenders of the ICC have created in my opinion too many and too high expectations of what the court is and what is should and can do, and for me this, correcting these incorrect perceptions  is the first place to start before dealing with the actual question of legitimacy.
Of course, moving back to more pragmatic considerations, and I’m sorry if my previous remarks are too theoretical for the purposes of your article, if the ICC does move to other parts of the world, it will obviously help its case in relation to this criticism. And as I mentioned before, this could happen both in Columbia and in Gaza. But one musn’t forget one important thing: the prosecutor is dependent on the fact that States must have signed and ratified the Statute. And the fact remains that the African continent contains, after Europe, the biggest number of State parties, and there are indeed a lot of crimes being committed there that are within the jurisdiction of the court. Other situations in the world would require a Security Council referral, but this is beyond prosecutorial policy and the power of the ICC as an institution. It is not really fair that the ICC should receive the criticism that should be aimed in fact the at the Security Council.
Question 6: The question of crimes of aggression is up for debate later this year. According to the Daily Telegraph, there has been talk in Britain about whether an agreement upon this crime opens the possibility of an indictment of Tony Blair. I know it is probably unlikely that an agreement would have retroactive effects, but even leaving that aside, is it not unrealistic that we will ever see Western leaders appear before the ICC (perhaps this also goes for Western soldiers, given the OTP’s refusal to go after British soldiers in Iraq)? If so, does this make the ICC vulnerable to charges of a ‘Western bias’?
In relation to aggression, you are right to point out that even  if there is an agreement on the definition at the Review Conference in Kampala later this year, it will in any case not apply retroactively.
As for the likelihood of seeing western leaders and soldiers being prosecuted at the ICC, you are probably right. But again, I’m not convinced about the “western bias” argument. The Iraq situation is quite specific, and there is no doubt (in my opinion) that the invasion of the country by the US and UK is an aggression under international law, and that specific war crimes have been committed. But most situations where western soldiers are involved are less ambiguous humanitarian or UN operations. There are often isolated cases of war crimes, but rarely the widespread situations of crimes that we all expect the ICC to deal with. Calling the fact that the ICC will more likely prosecute a perpetrator of crimes against humanity in Africa rather than a western soldier who committed a rape a “western bias” is just misplaced political correctness. Moreover, soldiers of western states are more likely to be prosecuted nationally, thus triggering the principle of complementarity. But it is totally disingenuine to use legitimate outrage about Irak to generalize on “western bias”. The fact is that in most cases, the widespread and systematic crimes that affect world peace will not be committed by western leaders and western soldiers.
Again, there is the specific situation of Irak and you mention the Prosecutor refusing to prosecute british soldiers. But this decision does make sense in the context of the ICC. For one, for reasons of jurisdiction, the prosecutor could not look at aggression. Second of all, he could only look at nationals of State parties, given that Irak is not a State party. With this in mind, the prosecutor did acknowledge that there was evidence of some cases of war crimes from british soldiers (based also on evidence provided by the British MoD), but that there was no evidence of a widespread commission of them by british soldiers and therefore decided not to pursue the investigation. Beyond the general issues with Irak, would it really be understandable that so much money be spent to prosecute these crimes (however reprehensible they are) when other situations legitimately deserve more attention, particularly applying the big fish theory? 

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?