Nkurunziza Lambasts the ICC. Don’t Listen to It.
It’s official: Burundi has withdrawn from the International Criminal Court, potentially sparking a chain reaction of exits that dissolves the ICC and allows warlords to run rampant. Though Burundi’s exit doesn’t exactly come as a shock, considering their lower house of parliament overwhelmingly voted to leave over a year ago, it still remains to be seen whether or not the divorce will have broader implications. If other signatories follow suit, it could open the floodgates to a never-ending cycle of human rights abuses well beyond the borders of the small African nation.
The timing of the withdrawal is all too perfect to be a mere coincidence. In April, the ICC opened up a preliminary investigation into Burundi regarding crimes against humanity- torture, rape, murders, sexual violence, etc. Moreover, just a month ago, UN investigators requested that the ICC open a formal case against Burundi, with all fingers pointed at the heads of state, namely President Nkurunziza himself. Brilliantly, rather than face the inevitable wrath of the international justice system, Nkurunziza and his “supporters” rescinded Burundi’s signature and bashed the ICC’s reputation in the process. Nkurunziza accused the ICC of targeting Africans and deemed it as a proxy for western-colonial governments.
The anti-Africa bias argument is not a new one. Back in early 2016 both South Africa and Gambia shared similar sentiments and threatened to leave, and earlier this year the African Union even called for a mass exodus by all states. Fortunately, Burundi is the first to actually make good on their promise to exit. But, considering this concern is widely felt, we must ask the question: Is the ICC inappropriately targeting Africans?
On the surface, there is an overwhelming amount of evidence that corroborates Nkurunziza’s story. Since its founding in 2002, the ICC has indicted 41 individuals, 36 of whom are African. Furthermore, of the ten currently open investigations, nine are in African states- including two in the Central African Republic. Beyond that, there are additional preliminary investigations into four other African countries.
Though outwardly suspicious, these statistics don’t tell the whole story. The International Criminal Court is limited in its authority and only has jurisdiction over states that are party to the Rome Statute. Consequently, while there may be human rights abuses in places like Saudi Arabia, Syria, Myanmar, or Pakistan, the ICC cannot intervene without a referral by the UN Security Council. In addition, of the signatories, African countries are not the ICC’s only targets. The international court has also indicted individuals in Libya and opened preliminary investigations into Afghanistan, Colombia, Iraq/UK, Palestine Ukraine, and Registered Vessels of Comoros, Greece and Cambodia.
While jurisdiction issues do not completely explain the imbalance, what might is that six of the nine African investigations are self-referrals. The ICC was founded upon the notion that it was to serve as a court of last resort. For Africa, a continent constantly struggling to combat relentless death squads and despots, it was seen as a beacon of hope and as “Africa’s court.” Throughout its lifespan, the ICC has assumed its role well and has actively sought to help Africans free themselves from tyranny. The ICC is not intentionally targeting African leaders or attempting to undermine their sovereignty, but instead trying to protect those who are persecuted.
Although the International Criminal Court has had little success as an adjudicator, the African citizenry still sees it more as a protector than predator. In a study conducted by a team from The Hague Institute for Global Justice, 507 Kenyans were randomly selected and asked whether they agree or disagree with the statement, “The International Criminal Court, ICC or The Hague is biased against Africa.” Of the 507, fewer than 35% agreed that there was a bias, and more than 60% of the victims or witnesses of human rights abuses (N=247) disagreed while fewer than 20% agreed. In other words, there is still faith in the ICC.
There is no disputing that the International Criminal Court has suffered multiple devastating failures over its lifespan. In Kenya especially, the ICC and chief prosecutor Moreno-Ocampo botched a great opportunity to bring down criminal President Uhuru Kenyatta. Nevertheless, the ICC is still the only hope for an international justice system that properly compensates the victims and deters aspiring demagogues and incendiaries. The alternative model, ad hoc tribunals, is too weak, inconsistent, and vulnerable to biases. Experience teaches that ad hoc tribunals lack the same gravitas and are inevitably too concerned with proper proceedings. The Saddam Hussein trial is a fine example of how this dynamic leads to both diminished trial quality and victim neglect. Furthermore, the “pop-up” nature of ad hoc tribunals utterly fails to discourage future human rights abuses. In contrast, the ICC is widely regarded as a preemptive power that perpetually stands guard and defends innocents from injustices.
While the International Criminal Court may not be living up to its potential, this is not the fault of its administration. Any mismanagement of the Kenyatta case must be judged with an understanding that the ICC is given insufficient resources to carry out full and proper investigations of such magnitude. As Moreno-Ocampo’s prosecutions coordinator said, the case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime.” It defies logic that an organization with the ICC’s responsibility lacks police, subpoena power, and surveillance capability. In addition, the meddling of overseeing superpowers- the United States, China, and Russia- incessantly undermine its authority and interfere with its business. For the ICC to be effective, it needs to separate itself from its overseers and broaden its resources. Until then, all assessments are premature. One certainty, however, is that a world without the ICC is a world that can expect to see a lot more chaos.