The International Criminal Court (ICC) and Africa: Navigating Perceptions of Disproportionate Focus.


Maxwell Boamah Amofa

The International Criminal Court (ICC) was established in 2002 to adjudicate egregious crimes including war crimes, genocide and crimes against humanity. Despite its successes, the ICC has extensively been criticised as serving western interests particularly due to its actions and inactions that seem to disproportionately target non-western leaders, especially Africans. For our purpose here, we will focus on three major controversies that have been generated through the actions of the ICC highlighted below:

1. Issuance of arrest warrant for President Vladimir Putin

2. Limited action against Western leaders for their military activities in other countries

3. Disproportionate focus on African leaders.

Arrest warrant for President Vladimir Putin

After Russia started its war with Ukraine on February 24, 2022, it was unprecedented for the ICC to issue an arrest warrant for the president of a nuclear powered State that has not ratified the Rome Statute, and was a permanent member of the United Nations Security Council. However, it is instructive to note that the warrant was issued not for the alleged violation of the territorial integrity of Ukraine in accordance with article 2(4) of the UN charter, but for alleged deportation of Ukrainian children to the Russian Federation.

Despite the Russian Federation not ratifying the Rome Statute, Ukraine accepted that crimes committed on its territory be investigated and tried by the ICC in 2014. So the question is not just about whether the ICC has jurisdiction, but also on whether the act occurred; and whether it falls within the scope of the article invoked in the Rome Statute. In the wording of article 7 of the Rome Statute, forceful deportation of children from occupied territories constitute crimes against humanity and is prohibited. The reinforcement of this provision in article 49 of the Fourth Geneva Convention underscores the importance that international law places on this provision.

The ICC has defined the notion of forceful deportation to mean if;

1. the perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
2. such person or persons were lawfully present in the area from which they were so deported or transferred.
3. the perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
4. the conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

The Russian Federation has admitted transferring children from the occupied territories of Ukraine bearing in mind the lawfulness of such act. However, that doesn’t automatically translate into meeting the provision established in section 2 and 3 of the above definition if the notion of “deported or forcibly transferred, without grounds permitted under international law “of section 1 has not been established. Section 4 and 5 however, would require thorough investigation into the intent of the act.

The notion of forceful deportation is one that raises significant questions about the threshold of force needed to meet such a requirement. The issue becomes more complicated when the exception in paragraph 2 of article 49 of the Fourth Geneva convention is applied. This is because it provides that the occupying power, in this case the Russian Federation, may undertake partial or total evacuation outside the bounds of the occupied territory if the security of the population or imperative military reasons so demand; and if for material reasons it is impossible to avoid such displacement. This means that the transportation of civilians from occupied territories without the use of force may not conclusively be regarded as a crime once the lives of civilians are threatened and other requirements are met.

During a public event at the Luzhniki stadium in Moscow on February 22, 2023, Ukrainian children shared their experiences regarding their transportation to Russia. On stage at Luzhniki, for instance, 15-year-old Anya Naumenko expressed her gratitude, saying: “Thank you, Uncle Yura (a Russian soldier who took them from Mariupol), for saving me, my sister, and hundreds of thousands of children from Mariupol.” Anya’s statement unequivocally reflects support for their relocation to the Russian Federation as they considered it a safe haven due to the war in their country. While the event echoed Russia’s justification for its war with Ukraine, namely the ‘De-nazification’ and ‘De-militarization’ of the country, which became imperative because of alleged inhumane treatment of citizens by primarily Ukraine’s Azov battalion, the West largely interpreted this as part of a broader misinformation campaign.

However, it is uncertain whether the Russian Federation informed the protecting power (Ukraine) before transporting the children as necessitated by paragraph 4 of article 49 of the Fourth Geneva convention. These uncertainties extend to determining the backgrounds of these children, whether they were specifically trained for the evacuation or whether they were under some level of influence. In any case, it is indisputable that there was transportation of some children from Ukraine to the Russian Federation. The legality of the situation is complex, hence one cannot be overly confident in classifying it as a crime or witch-hunting against the Russian Federation until proven by a competent court of law.

The pressing question now is on whether the arrest warrant can be enforced. This is beyond the powers of the ICC as it has no standing army for such purpose. It relies solely on state parties to execute such an arrest. In the case of the Russian Federation, the situation is more complicated, because in the wording of article 80 its constitution, the Russian President as the Head of State is, to a large extent, an organ of government by himself; despite his significant role in the executive arm of government. An arrest of a siting president may, therefore, be classified as an existential threat to the state itself. This is because it might be seen as an attempt to dismantle an organ of government. As per the context of the Nuclear doctrine of the Russian Federation, any existential threat to the country would automatically trigger the right to use nuclear weapons . Consequently Dmitry Peskov, spokesperson for the Kremlin, has argued that the ICC arrest warrant is worthless as no state party to the ICC will attempt such an arrest.

The role of the United Nations Security Council (UNSC)
The debate around the possibility of intervention by the United Nations Security Council (UNSC) raises questions about the role of its members in ensuring international security and justice. For instance, the US hitherto adopted the America Service Members Protection Act (ASPA), also known as the Hague Invasion Act, which gives the US the right to use all means necessary and appropriate to bring about the release of any person who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court. This provision extends to allied persons upon request of their governments. The US, after the 9/11 attacks, has been actively involved in exterritorial terrorism operations including operations in Syria and Iraq. These countries of interventions have, however, not ratified the Rome Statute, just like the The US and the Russian Federation. For this reason, it might be comparatively easier to avoid the involvement of the ICC.

Assuming the purpose of the ASPA was to protect service members in order to carry out their operations in these regions, one might probably prefer a law tailored for the situation at the time in those countries; but The U.S. Service Members Protection Act seems tailored to support further military interventions. Thereby, authorizing the use of all necessary and appropriate means to liberate any American or allied citizen detained by the ICC. The issue becomes more complicated if the US is to be allegedly involved in a crime on the territory of a state that is party to the ICC. Whether the office of the prosecutor will begin investigation on such cases despite the high risks is yet to be determined.

The position of the permanent members of the UNSC on issues of international justice has come under scrutiny in recent years. The power of the UNSC to make referrals to the ICC seems redundant, considering the veto powers of the UNSC’s permanent members. It is unlikely that they would approve investigations into their alleged crimes. The UNSC’s referral power to the ICC thus requires reassessment in the emerging multipolar world. The United States, The Russian Federation and The People’s Republic of China are 3 of the 5 permanent members of the UNSC. None of these have ratified the Rome Statute, but contrast have the power to refer cases to the ICC. The uncertain position of these countries regarding the ability of the ICC to deliver international justice for victims raises skepticism about the type of referrals they may make and what type of justice they seek to achieve.

Limited action against Western leaders for their military activities in other countries

This brings us to the perceived limited actions of the ICC against Western leaders for their exterritorial military activities. It is common knowledge that France, in particular, has vested interest in the politics and economy of Francophone Africa. France’s intervention in Cote d’Ivoire during the Ivorian civil war is one that led to the death and displacements of thousands of civilians. Similarly, France’s unflinching support for Alassane Outtarra allegedly helped him to take over the presidency from Laurent Gbagbo, who was subsequently tried by the ICC. Skeptics believe the ICC arrest warrant for Mr Ggagbo was politically motivated, necessitating a thorough review to determine whether the arrest was lawful, and whether France and Ouattara violated the Rome Statute. Even though Mr. Gbagbo was subsequently acquitted, skepticisms remain concerning the nature of alleged crimes by Alassane Outtarra and the French military. Similarly, the UK’s involvement in the Iraq war, initiated under the pretense of dismantling weapons of mass destruction that never materialized, has not resulted in any ICC prosecution. Tony Blair, the then prime minister, has admitted that the rationale for the intervention was a mistake as such weapons never existed .

Regarding the debate on the role of the ICC in fighting international crimes, Julius Malema, the flagbearer for the Economic Freedom Fighters(EFF), a political party in South Africa, stated that South Africa will not arrest President Vladimir Putin, except the former British prime minister, Tony Blair; and former president Barack Obama were apprehended for their interventions in Iraq and Libya respectively. However, the situation is arguably more delicate than it appears. The interventions in Iraq was carried out by NATO and not the United Kingdom as a separate state, while the ICC operates under the principle of Individual Criminal Responsibility. This means it can only issue arrest warrants for individuals involved in crimes covered under the Rome Statute, and not for organizations like NATO. Additionally, the ICC can investigate crimes by individuals from member states, or crimes occurring on the territory of states that have accepted ICC jurisdiction for that matter; based on the principle of complementarity. This principle stipulates that the ICC will intervene only when states are unable or unwilling to prosecute individuals involved in crimes covered under the Rome Statute.

In the traditional sense, NATO is not a state neither does it have nationals. Hence, ICC does not have jurisdiction over its alleged crimes in Iraq, which is also not a state party to the Rome Statute. However, if there were allegations of war crimes or other serious crimes committed by individuals associated with NATO member states during the invasion of Iraq, the ICC could potentially investigate and prosecute those individuals if their respective national legal systems failed to do so. Such cooperation from NATO member states is unrealistic considering the provisions of the US service Members Protection Act in the US for instance, as it literally shields service members of allied states from being investigated by the ICC.

The complex relationships between states, coupled with lack of a standing security force for implementation of ICC arrest warrant, are huge limitations for the enforcement of international justice. In this regard, Omar Al Bashir could not be arrested directly by the ICC despite the arrest warrant issued by the court. South Africa’s relationship with Omar Al Bashir, for instance, also prevented him from being arrested in the country, even when it was a state party to the Rome Statute. In the case of the Russian Federation, however, the situation is mainly regarding the centrality of the president to the security architecture of the State.

Disproportionate focus on African leaders

As of 23rd May, 2024 the number of active cases at the ICC according to the public information leaflets stood at about 15, out of which 10 involved African leaders. This is a reflection of what critics argue, that the court disproportionately targets African leaders. The difference between the African states and countries like Russia and the US is the fact that African states largely refer cases to the ICC themselves, in relation to article 13(a) of the Rome Statute that grants state parties the right to refer crimes covered by the Rome Statute to the ICC. The reasons are uncertain, but possible motivations may include; inadquate resources for such trials, lack of confidence in the local judicial remedies, or simply to get justice against individuals allegedly involved in serious crimes through a trusted legal institution. The first two may not be overly valid reasons as the ICC is a court of last resort, meaning states must have exhausted domestic remedies before applying to the court; and only when states are unable or unwilling to try such cases shall they refer them to the ICC. Thus, the third option seems the most viable reason for which African states may refer cases to the ICC for justice.

In an effort to uphold international justice and address the perception of bias, the ICC has issued arrest warrants for Prime Minister Benjamin Netanyahu and Hamas leaders resulting from crimes committed during the attacks on Israel and the response in Gaza, signifying attempts to ensure justice is uniformly applied. This action may foster trust among Africans in the global judicial system. South Africa has taken further steps to file complaints at the International Court of Justice for alleged genocide being committed by Israeli forces in Gaza. With the public outcry, the support of Western countries for Israel has dwindled a bit. The United States, however, supports Israel due to their long-standing relationship and is against the arrest warrant. The support dates back to 1948, when the US supported Britain in establishing a new state in the Middle East, which later became Israel. Consequently, the United States was the first to publicly declare their support for independent State of Israel. Historically, Germany’s persecution of Jews and other minorities under Adolf Hitler also influenced Western support for Israel. This may also be because any action against Israel, predominantly Jewish, might be perceived as antisemitic. Even though Israel is not a western state in the traditional sense, the prosecutor’s decision for an arrest warrant for its Prime Minister Benjamin Netanyahu, despite pressure from some Western states, signifies a massive shift from the perceived disproportionate focus on African leaders while shielding Western backed leaders. This move underscores a broader commitment to impartial justice and may enhance the credibility of the ICC on the global stage.

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