Is the International Criminal Court Really Biased Against Africa? - the Case of Burundi

 ‘Cheers and chants, tears and embraces, rhythmic stomping, and applause’, such was the reaction of the representatives of member states at the close of the Rome conference in July, 17 1998 that formerly established the International Criminal Court. Burundi, formerly registering its divorce from the jurisdiction of the court, became the first country to take such a leap, stating that the International Criminal Court is biased towards Africa. Other hosts of African countries, including South Africa, The Gambia and Namibia, have equally commenced a formal exit process.  Despite the fact that The International Criminal Court has prosecuted mainly Africans since its inception in 2002, I feel as if its relationship with Africa is wrongly perceived by the Court’s African opponents as a bias, because Africa has experienced more atrocities than any other continent in the world.

The idea of establishing a standing, independent and permanent international tribunal that transcends borders with the sole responsibility of prosecuting political leaders who have been accused of perpetrating in heinous international crimes is not new. The premise that underlies this ‘popular’ idea is   for purpose of curtailing impunity and changing the paradigm of international justice. The concept of an International court was first discussed in the aftermath of World War II (Nanda, 1998). But it was until the late 1990s that the first ad hoc international tribunals were established simultaneously to prosecute war crimes in Rwanda and the former Yugoslavia. These tribunals were inefficient, which called for the establishment of the International Criminal Court after receiving more than sixty ratifications.

The International Criminal Court is a Hague-based international tribunal, that essentially acts as a the court of the “last resort for the prosecution of genocide, war crimes and crimes against humanity (Avenue, York, n.d.). Since its inception in 2002 through the adoption of the Rome statute, the International Criminal Court has become a functioning court (Kastner, 2010) and has made very significant headway in breaking the primitive cycle of atrocity with impunity that has caused a considerable amount of unbearable devastation to humanity.

As at the time of this research, 34 (out of 55) African countries were state parties to The Court, while eleven more African countries have signed but are yet to ratify the Statute. 19 were Asia-Pacific States, 18 were Eastern Europe and the rest were Latin American and other Western European States. Notwithstanding this appreciable statistic, the mandate of The Hague-based court has become very daunting and its legitimacy has been undermined due to the simple fact that many other countries have not ratified the Rome statute, while others are not member states.

The International Criminal Court has in the first decade of its existence been faced heavy criticisms about its alleged purely African case docket since most of its activities have been on the African continent. Essentially the ICC is being accused of bias toward Africa due to its alleged ‘selective prosecution’ (Clarke, Knottnerus, & Volder, 2016).  Another frequent claim that has been advanced by some African and non-African ICC critics are the accusation that the Court is leading a new neo-colonialist revival on the African continent to help reassert western agenda and control (Clarke et al., 2016). As a matter of fact, these criticisms cannot be looked at in isolation as they do not arise in a vacuum, hence, must be understood in context of the court’s operations to fulfill external pressures to bring to justice as many perpetrators as possible, to reassert its mandate of enforcing international justice. Moreover, these criticisms begun to emerge from Africa, particularly due to the idea that Africa is presently in the “midst of a significant period of cognitive dissonance” as she attempts to come to “grips with evolving contradictory pressures on her identity” (Mills, 2012).

It is undeniable fact that the activities of The Hague-based court in Africa have stirred concerns, particularly over African sovereignty and Africa’s long and unforgettable history of foreign intervention.  (Arieff, Margesson, & Browne, 2010). The most important substantive critique in Anti – ICC rhetoric from Africa is the assertion that all the cases that the ICC is currently investigating and has prosecuted in the past are mainly African cases. This has raised questions as to whether the ICC is engaging in selective prosecution (Plessis, Maluwa & O’Reilly, 2013) or not.  

To analyze the existent evidence against The court, it is important to know that throughout the period of The Court’s existence, it has completed 17 proceedings, 10 situations (which under preliminary investigations), issued 39 public indictments, 31 arrest warrants, 8 summons with  22 investigations ongoing out of which  9 are fugitives (“Situations,” n.d.).  Kastner argues that a lion share of these situations have been and are in Africa. Essentially Africa makes up almost every single category. Kastner equally emphasized that the ICC has prioritized crimes that arise in Africa over crimes that arise anywhere else in the world (Kastner, 2010). Mills endorses Kastner’s claims, saying “to date all, the active cases the ICC is prosecuting are in Africa (Mills, 2012)”, which are very valid claims to make since the statistics are quite huge.

 In December, 2003, the alleged war crimes and crimes against humanity committed in a conflict between the Lord’s Resistance Army (LRA) and the national authorities in Northern Uganda were referred to the court by the government. This was almost like the turmoil that occurred in the Ituri region and the North and South Kivu provinces in the Democratic Republic of Congo in 2004. Also, in 2004, the Democratic Republic of Congo (DRC) petitioned the ICC to investigate the civil unrest that occurred in the said provinces. This led to the issuance of arrest warrants and trials of three alleged perpetrators (Mills, 2012).

In 2005, the ICC launched an investigation into war crimes committed in the renewed violence in the Central African Republic following the receipt of a referral from the CAR government, this lead to the arrest and two-pair trial of Jean-Pierre Bemba Gombo. The processes were not at all different in the case of Mali (Dugard, 2013). Apart from these cases, all the other situations that have been pursued in Africa by the ICC have either been selected for investigations by the Prosecutor or by referrals from the United Nations Security Council (Dugard, 2013) which both achieve the same purpose

The International Criminal Court launched a formal investigation into the conflicts in Sudan. Thus, the first warrant for the arrest of Omar Al Bashir was issued in 2009 while he was the incumbent President, the second arrest warrant was issued in 2010 after the first proved futile. This was the last straw that broke the camel’s back. International criticisms of the court heightened and many African countries expressed their disdain for The Hague-based court. Mills maintained that the list is not exhaustive as Kenya, Libya and Cote d’Ivoire have equally been investigated due to an outbreak of violence (Mills, 2012).