This week, President Obama is hosting in Washington the first-ever U.S.-Africa Leaders Summit. This occasion is to be welcomed for many reasons, not the least of which is the opportunity it provides for African leaders to voice their concerns about the International Criminal Court (ICC), and their wish to establish an African Court of Justice.
Believing the ICC would be a genuine universal court, many African states joined it. Twelve years later, along with many international observers, however, Africa’s conclusion is that the International Criminal Court is unfit for its purpose. Africa has come to realize that it was sold a false bill of goods.
The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed, and the court’s reputation has been damaged by corruption and judicial irregularities. The ICC is not a global court. The United States, Russian and China are not are members. The world’s most-populous democracy, India, has refused to sign up. All in all, despite its name, ICC members represent just over one-quarter of humanity.
Political interference was written into the court’s own statute. Far from being an independent court, the ICC grants special prosecutorial rights of referral and deferral to the United Nations Security Council — by default its five permanent members (three of which are not even ICC members). The court is also inextricably tied to the European Union, which provides more than 60 percent of its funding. The ICC has come to be seen as a child of the EU — either by conception or adoption.
The Obama administration’s position with regard to the ICC is contentious. The United States has refused to become a member of the ICC, describing it as a politicized, dysfunctional institution and has generally sought to oppose, obstruct and inconvenience the court for most of its existence. Supreme Court Justice Antonin Scalia has called the ICC a kangaroo court, and Washington has made it very clear that no American citizen will ever come before it.
Africa’s case against the court is clear. Despite having received almost 9,000 formal complaints about alleged crimes in at least 139 countries, the ICC has chosen to only pursue Africans. In its 12 years of existence, it has only ever indicted or tried Africans.
It is a matter of record that the court’s proceedings thus far have often been questionable where they’re not simply farcical. Its “judges” — some of whom have never been lawyers, let alone judges — are the result of grubby vote-trading among member states. Far from securing the best legal minds in the world, this produces mediocrity. At least one elected Japanese judge had neither law degree nor legal experience, having been picked primarily because she could speak English. The court’s first witness in its first trial recanted his testimony the moment he got into the witness box. Dozens of other “witnesses” have similarly disavowed their “evidence.” Then there has also been the ICC chief prosecutor who threatened to criminalize third parties who might argue a presumption of innocence on the part of those indicted — and as yet unconvicted — by the court.
The ICC’s first trial proceeded erratically because of crass prosecutorial misconduct and attempts to add new charges halfway through proceedings. The court has been making things up as it went along. The ICC claims to be “economical” and to bring “swift justice,” yet it has consumed more than a billion euros and still has not even fully completed its first case, the deeply flawed trial of Thomas Lubanga, a militia leader from the Democratic Republic of Congo, accused of using child soldiers. Despite being held in ICC custody since 2006, as of July, the appeal stage of Mr. Lubanga’s case is still going through an appeal.
For Africa, the ICC’s many flaws are not just academic or procedural. One of the central claims made by the court and its supporters is that it deters conflict. Far from doing so, however, the ICC’s double standards and legal blundering in Africa have derailed delicate peace processes across the continent — thereby prolonging devastating civil wars. The ICC’s involvement in Uganda, for example, destroyed peace talks in that country. ICC indictments of several rebel leaders saw them going back into the bush with the conflict, then spreading into the three neighboring countries, South Sudan, the Central African Republic and Congo.
In a time when political correctness permeates so much of Western culture, it is surprising to see the political nomenclature on both sides of the Atlantic turning a blind eye to what clearly amounts to racism when it comes to the ICC. It is puzzling, therefore, that Mr. Obama insists that Africans surrender themselves to what is, in effect, an inept, politicized European court funded by Africa’s former colonial powers.
During African leaders’ visit to Washington, Mr. Obama should listen. Behind the set-piece dialogues, sessions and discussion about good governance, the case they will doubtless make in private against the ICC is clear. It is time that Africans stop paying the price of European legal adventurism on its continent.
David Hoile is the author of Justice Denied: The Reality of the International Criminal Court (The Africa Research Centre, 2014).