On Oct. 8, the president of Kenya, Uhuru Kenyatta, returned to The Hague for an International Criminal Court (ICC) hearing and returning with him were several questions that have dogged both his trial and the organization facilitating it. Did Kenyatta play a role in the violence that followed the disputed 2007 elections? Are active heads of state subject to prosecution? And perhaps most importantly, does the ICC unfairly target Africans?
At a quick glance, the list of ongoing ICC investigations involves many situations in African nations and for some critics this is enough evidence to condemn the organization as racist or even neo-colonialist. Such a condemnation ignores many details. The court is currently conducting preliminary examinations for situations in places such as Colombia, Afghanistan and several others outside of Africa.
In order to explain why the only individuals currently under indictment by the court hail from the African continent, we have to understand how the eight situations under investigation were brought to the court’s attention. Half of these situations (those in the Democratic Republic of the Congo, Central African Republic, Uganda and Mali) are all under investigation at the request of the governments of those very countries. Two of the situations (those in Libya and Sudan) are under investigation at the behest of the United Nations Security Council. The final two (those in Côte d’Ivoire and Kenya) are under investigation on the initiative of the ICC’s chief prosecutor.
It’s obvious that self-referrals to the court don’t reflect any sort of animosity between certain African governments and the ICC. In fact, it arguably shows enthusiasm for the cooperation with the court. This enthusiasm for cooperation is not without precedent; many African nations and individuals were heavily involved with the court at the time of its founding and many still are today. The organization’s current chief prosecutor, Fatou Bensouda, is Gambian, and one quarter of its judges (including the first vice president) are from various African nations. The heavy involvement of African countries and individuals in the ICC is a direct contradiction to the claim that the court is a neo-colonialist mechanism.
The situations in Sudan and Libya were both referred to the ICC by the UN Security Council with the support of African nations sitting on the Security Council. Clearly, for the majority of current investigations, the ICC was not intentionally targeting Africans, but merely investigating heinous crimes where it was asked to do so.
The investigations of the situations of Côte d’Ivoire and Kenya also fall squarely under ICC jurisdiction. The organization operates on what it calls the “principle of complementarity,” meaning the court functions as a last resort when the national judicial systems of states under its jurisdiction are “unwilling or unable genuinely to carry out the investigation or prosecution” of certain individuals. The ICC’s prosecutor only opened an investigation in Kenya after the national parliament failed to pass legislation to establish a tribunal for those suspected of organizing the post-election violence. As for Côte d’Ivoire, ex-President Laurent Gbagbo (who accepted ICC jurisdiction in his country in 2003) only seemed concerned with the courts “imperialist” agenda when he himself was arrested.
Africans aren’t being unfairly targeted in a judicial witch hunt. With preliminary examinations for Iraq and Afghanistan underway, we may even see the indictment of Westerners. Critics should closely examine the protocols of the ICC before making baseless accusations.