Is the International Criminal Court a Colonial Institution?

The International Criminal Court (ICC) was established in 1998 to ensure that war crimes and crimes against humanity do not go unpunished. Although governments usually have capable systems to enforce laws, when it comes to mass atrocities, they often lack the framework to deal with crimes of such proportions. Since its inception, the ICC has been criticized for being a colonial institution, one perpetuating the “powerful versus the powerless” paradigm. On February 28, 2018, the Center for International and Regional Studies hosted the talk, “Is the International Criminal Court a Colonial Institution?” presented by Mia Swart, a visiting fellow at the Brookings Doha Center and research director at the Human Sciences Research Council (HSRC) in South Africa. In addition to raising the presentation question, she also offered suggestions for reforms of the ICC.

Swart provided some background on the ICC and its relationship to the United Nations Security Council, which has played an important role in international criminal justice, such as by establishing ad hoc tribunals in the aftermath of large-scale crimes, like with the former Yugoslavia and Rwanda in the 1990s. These organizations were the predecessors to the ICC and led to its establishment. Unlike these tribunals, however, the ICC is based on the Rome Statute, the treaty that established the ICC’s jurisdiction and functions. States voluntarily become party to the statute by ratifying it and, as of 2017, 123 states are members.

Swart argued that, “it is uncontroversial that international law has been shaped by colonialism and imperialism,” as it is rooted in the Westphalian system that was devised by the European States. And, the idea of certain states having all the power “is inextricably bound-up with international law as a discipline.” She believes that international law cannot be conceived without its colonial roots. The paternalistic idea of the UN or Western states caring for other nations is still given a lot of importance today, she said, and “at the center of this debate is the ICC’s nearly exclusive focus on African countries until very, very recently.”

This matter of whether the ICC is colonial is of particular interest for Swart, as a South African. And the issue has been a “burning issue nationally,” as South Africans are deeply concerned over how many of the institutions within their country are deeply colonial, she said. Additionally, when Sudanese President Omar Al Bashir arrived in Johannesburg in 2015 to attend an African Union summit, it triggered an enormous debate over colonialism in South Africa. Subsequently, the South African government attempted to withdraw from the ICC, and the African Union continues to support a mass withdrawal by its members.

Al-Bashir had been charged by the ICC with crimes against humanity and genocide in Darfur in 2009, and it was the obligation of South Africa, as a member of the ICC, to have him arrested upon entering the country. That did not happen. The expectation of the ICC was that member states were obliged to arrest Al-Bashir if he stepped foot in their countries. What is notable about this situation is that Sudan is not a state party of the ICC. In fact, Al Bashir had travelled to thirteen member-countries with a fair amount of immunity and without being arrested.

Swart said immunity and impunity for sitting heads of state is an international hot topic. “My view is that the Rome Statute trumps traditional rules of immunity and if you signed that statute then you are obliged to operate and arrest.” However, she said, it was simply inconceivable that South African President Zuma would arrest Al-Bashir because of long-standing diplomatic relations between the two countries. During this incident, there was a lot of opportunistic use of the term colonialist, she said. Claims were made that Al-Bashir should not be arrested because the ICC is colonial, whereas “what was really going on was friends protecting friends.” Certain governments just refused to break diplomatic ties even if they knew that international crimes were committed, she said.

This was the context that really created a lot of the debate around whether the ICC is neocolonialist, Swart said. She clarified that using the term colonial really means neocolonial. That the word colonial does not mean literally invading and taking over other countries; rather it’s a continuation of economic and political control, and is equally damaging. Especially, she said, “China these days is a major neocolonialist on the African continent, and the United States, certainly.”

Swart believes the ICC is capable of evolving and becoming more understanding of global diversity, and she noted that international law can also be counter-imperialistic. International law both reinforces the idea of colonialism and it also talks about liberation, which is “the unstable nature of the international law,” she said. However, she said it should not be ignored that some entities like Third World Approaches to International Law (TWAIL) are deeply critical of international law, as it views the system as continuing the exploitation of the Third World by the West. And there are plenty of critics from the West who would agree that the system is internally flawed, she said.

The ICC is fundamentally colonial in two ways: in its design and in its funding, Swart argued. Its relationship to the Security Council allows it a measure of decision-making power, and this influence can be obstructive, as in the cases of Syria and the Al Bashir debacle, she said. In terms of funding, whereas the ad hoc committees are funded by UN, the ICC is funded by a variety of states. The top funders are all from Europe (and Japan), giving them considerable ability to “pull strings in all kinds of ways.” This is an under-acknowledged way in which Western states plays a role in influencing the situations, Swart said. Additionally, the ICC prosecutor is acutely aware of the interests of these states, she said, “so she will never threaten the interests of United States and Japan, for example.”

Selectivity is another critical factor, Swart said. “In a world full of international crimes where a lot of international crimes are being committed, the ICC is fairly arbitrary.” The ICC does not choose a country, it chooses a situation, she explained. For example, they will not choose Sudan or Congo, but will select a particular situation within a country. All of the issues that the ICC focuses on make a statement about how it views its role in the world, so how it chooses these situations is extremely meaningful. “Selectivity is the Achilles’ heel of international criminal justice; the aspect that gives it a dubious legitimacy,” she said.

This gives rise to the question: Why did African nations chose to become a part of the ICC if they had initial reservations? One theory is that some African states were pressurized to sign the agreement because the UN refused to provide them aid if they did not do so. An alternative explanation is that the African nations believed in the ICC’s ability to make a difference. In its early years, the organization did not seem to be characterized by the traditional dialectic of North and South. The opinion about South Africa’s position on the ICC today is divided. “There is no question that the African nations are hostile toward the ICC,” Swart said. The African Union is now in the process of creating their own instrument for international justice.

Swart argued that the effect of the ICC on African states has not only been negative; it has had some positive effects in that it has given African states something to mobilize around. For example, Kenyans have strongly mobilized against ICC and they are not afraid to assert themselves in the Assembly of State Parties (capitals), she said. A pivotal question that this leads to is: How can the ICC be reformed? Swart offered the following strategies. Structurally, it can be amended, as their statute allows for it. The assembly of state parties can also play a much more important role in advocating for change, and the ICC can be much stronger in its own rhetoric. “Perceptions matter,” she said, so the way the ICC communicates with the public is of key importance. The gravity threshold of the ICC prosecutor remains very unclear, and they can have a more inclusive focus. And, finally, she argued that it is important to note that the constant focus of the ICC on Africa and their condescending attitude threatens the very existence of the court. There is a real chance that African states might actually withdraw, which would mean over thirty states leaving the ICC, greatly affecting its influence and legitimacy.

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Mia Swart is a visiting fellow at the Brookings Doha Center and research director at the HSRC in South Africa. Her research focus is on transitional justice, international criminal law and comparative constitutional law. She is currently a Visiting Professor at the University of the Witwatersrand and was Professor of International Law at the University of Johannesburg and Associate Professor at the University of the Witwatersrand before joining Brookings. Her work has been cited by South African courts as well as by the International Criminal Court. Her co-edited book, The Limits of Transition: The South African Truth and Reconciliation Commission 20 Years After, was published in 2017.

 

Article by Khansa Maria, CIRS Student Assistant