“Something is flawed within the system of the I.C.C. and … now the process has degenerated into some kind of race hunting.”[i] These remarks made by the Chair of the African Union (A.U.), Ethiopian Prime Minister Hailemariam Desalegn, at the close of the 21st African Union summit were in reference to the I.C.C.’s indictment of Kenyan President Uhuru Kenyatta on grounds of crimes against humanity for the post-election violence that occurred after the disputed 2007 Kenyan elections.[ii] Such accusations of racism have damaged the institution’s credibility amongst developing states, particularly within Africa, and have given momentum to the Court’s numerous critics, arguably diminishing its legitimacy and thus its effectiveness in matters of global justice. This article shall examine the validity of such criticisms as well as analyse the gradual evolution of international law. It shall demonstrate that the creation of a permanent international institution to deal with global matters of justice necessarily makes it effective and that claims of racism are in fact baseless.
The I.C.C. is revolutionary in the context of modern international affairs; in direct opposition to much of the selfish, state-centric assumptions of international political theory, the I.C.C. is demonstrative of states voluntarily ceding authority to an external global institution in matters of international justice. “The Rome Statute has helped to break away from the realist notion of the ‘society of states’ with the state at its core, to a vision of ‘Kantian world society’ with the individual at its core.”[iii] It is the first permanent international institution to prioritise the rights of victims and individuals above the rights of states.[iv] In 1920, the Advisory Committee of Jurists appointed by the Council of the League of Nations asserted, “inasmuch as states were subjects of international law, individuals could only be punished in accordance with their national law.”[v] This position was completely reversed with the Nuremberg Trials and the revival of the notion of individual criminal responsibility accountable to international law.[vi] Yet despite the precedence established at the Nuremberg Trials, the state continued to be the focus of international law – subsequent international institutions concerned with justice such as the U.N., its Security Council and the International Court of Justice were all state-centric.[vii] Thus whilst the I.C.C. is the culmination of a decades long evolution of international legalistic thought, it is still revolutionary as through its institutionalisation of the precedence established in 1946, it confirms the paradigmatic shift of international law.
As such, the I.C.C. is to a certain extent necessarily effective since before its establishment, temporary institutions were created on an ad hoc basis. This may be seen through providing a brief contrast of the I.C.C. with the International Criminal Tribunal for Yugoslavia (I.C.T.Y.). After the atrocities that were recognised to have occurred during the wars in the territory that was Yugoslavia, there was a large-scale international consensus for the establishment of a war crimes tribunal.[viii] Thus the I.C.T.Y. was established; yet its effectiveness was mitigated by factors such as the associated large start-up costs as well as the lengthy process of establishing an ad hoc tribunal due to bureaucratic foot-dragging and the constant political in-fighting within the Security Council.[ix] The establishment of a permanent home for future such tribunals that would by-pass such difficulties, necessitates an intrinsic degree of effectiveness for the I.C.C.
However, recent allegations of racism and neo-imperialism have damaged the progressive reputation of the I.C.C., as well as its effectiveness. Its detractors point to the fact that all eight of the current states under investigation as well as all 26 active cases against individuals at the Court are in relation to African states and persons.[x] Many are incensed at the hypocrisy of the referral of cases to the I.C.C. by the Security Council, as in the case of Sudan; despite the fact that three of the permanent members are not signatories to the Rome Statute and thus do not officially recognise the legitimacy of the I.C.C. themselves.[xi] However a closer scrutiny of the situation undermines such allegations. With the exception of Kenya and Sudan, all six other cases before the court were self-referrals from the African state themselves.[xii] In the case of Sudan, whilst there is no permanent African representation at the U.N. Security Council (which is in itself a completely separate issue worthy of investigation), there were three African states with rotating seats at the time of the referral: Algeria, Benin and Tanzania.[xiii] Benin and Tanzania voted in favour of referral whilst Algeria merely abstained in protests at the perceived hypocrisy of non-Rome Statute signatories deciding to refer a case to the body created by this very Statute.[xiv]
Nonetheless this would seem to suggest the current cases active in the I.C.C. were not the result of a deliberate ‘race hunt’. Perhaps, as the leading Cameroon jurist Roland Abeng pointed out, it is more reflective of the fact that it is doubtful whether there are “even five African countries with judicial systems that could try grievous international crimes fairly and equitably through effective national court structures…The I.C.C. is a court of last resort because it is doing the job of failed judicial systems in many African countries.”[xv] The baselessness of the racism allegations is further compounded by the fact that the I.C.C. has additional preliminary investigations open against other non-African states such as Colombia, Georgia, Afghanistan and Korea.[xvi] Consequently, though such allegations may have diminished the I.C.C.’s reputational standing amongst certain African communities, they are without substance and so does not impede upon the I.C.C.’s ability to administer effective and impartial justice.
The “adoption of the Rome Treaty has worked a quiet, albeit uneasy, revolution that has the potential to profoundly transform the landscape of international law.”[xvii] It has contributed to the gradual shifting of international law away from a state-centric tradition towards a more ‘Kantian world society’ whereby an emphasis is placed more upon the individual. The institutionalisation of this shift, in the form of the I.C.C., is demonstrative of a growing global constitutionalism where values codified by the Rome Statute, such as the crime of genocide, are universally recognised. It replaced temporary, ad hoc tribunals (such as the I.C.T.Y.) and created a permanent home for international justice, free from the inefficiencies and extensive costs of constant ad hoc tribunals. It is this that makes the I.C.C. necessarily effective. Whilst there have been accusations of racism, which may have diminished such an interpretation, a closer scrutiny would seem to find such criticisms are in fact baseless. It may be fair to perhaps nuance such a conclusion with the recognition that the Court is far from a completely perfect, seamlessly efficient institution, yet it is neither the ineffective, racist witch-hunter that it is often depicted as by its detractors.
[iii] Holmes, Oliver. The International Criminal Court and Problems of State Sovereignty. Santa Cruz: Grin Verlag, 2013. p. 52
[iv] Ibid. p. 52
[v] Alfaro, Ricardo J., ‘Report on the Question of International Criminal Jurisdiction’ Yearbook of the International Law Commission Vol. 2. 1950. p. 4
[vi] Brown, Bartram S. Research Handbook on International Criminal Law. Cheltenham: Edward Elgar, 2012. p. 18
[vii] Holmes, Oliver. The International Criminal Court. p. 53
[viii] Whiting, Alex. “In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered.” Harvard International Law Journal 50.2 (2009): pp. 323-364. p. 323
[ix] Ibid. p. 341
[xi] Goldstone, Richard, and Adam M. Smith. International Judicial Institutions: The Architecture of International Justice at Home and Abroad. London: Routledge, 2009. p. 112
[xii] Sriram, Chandra Lekha, and Suren Pillay. Peace versus Justice?: The Dilemma of Transitional Justice in Africa. Oxford: James Currey, 2010. p. 322
[xiii] Ibid. p. 322
[xiv] Ibid. p. 322
[xv] Mendes, Errol. Peace and Justice at the International Criminal Court: A Court of Last Resort. Cheltenham, UK: Edward Elgar, 2010. p. 166
[xvi] Phooko, Moses Retselisitsoe. “How Effective the International Criminal Court Has Been: Evaluating the Work And Progress of the International Criminal Court.” Notre Dame Journal of International, Comparative, & Human Rights Law 1 (2011): pp. 182-209. p. 205
[xvii] Sadat, Leila Nadya. The International Criminal Court and the Transformation of International Law: Justice for the New Millennium. Ardsley, NY: Transnational, 2002. p. 8