In less than 5 years time there has been turmoil in numerous African countries. Rulers of countries in Northern Africa have been removed from power in 3 countries. There was an ouster in Tunisia, Libya, and in Egypt twice. However the political unrest is not isolated in the North. There are ongoing conflicts in Sudan, Chad, Côte d’Ivoire, Central African Republic, and in Mali. Over the course of these conflicts the International Criminal Court (ICC) has opened up investigations into War Crimes and Human Rights abuses that have occurred in these conflicts. One of the most recent formal investigations the ICC has launched was in January when it launched an investigation into possible war crimes committed in Mali.
The Conflict in Mali erupted in January of 2012 in the Northern part of Mali. Insurgent groups began to rebel against the government in Northern Mali for independence in Northern Mali known as Azawad. The insurgent group is the National Movement for the Liberation of Azawad (MNLA) to make Azawad an independent homeland for the Tuareg People, a historically nomadic group. They gained control of the region by April 2012. The President of Mali, Amadou Toumani Touré, was ousted in a coup by soldiers who later created a group called the National Committee for the Restoration of Democracy and State (CNRDR). The CNRDR suspended the Constitution after they took control. There was a peace deal made, but the rebels in September backed out of the truce. France has also intervened in the conflict by helping the CNRDR.
As the conflict roared on, War Crimes allegations were being made against the MNLA. One instance was at a military camp where the MNLA attacked the camp and during the conflict took innocent civilians, notably students at the Training Institute for school-teachers. The MNLA used the hostages as human shields. After the MNLA overran the camp, the report concluded that the MNLA executed and tortured 153 Malian soldiers. This instance directly violates Article 3 of common to the Geneva Conventions and under the terms of Section 8.2.c) on war crimes in the Rome Statute of the International Criminal Court.
However, there are some in the African Union who feel that the ICC is biased against the continent of Africa and the indictments and investigations are unjust. At the African Union summit earlier this year, the Prime Minister of Ethiopia Hailemariam Desalegn said the ICC is “hunting” Africa because of their race and it is unjust and biased. Ethiopia however is not a signatory to the Rome Statute, but Kenya is. Their President, Uhuru Kenyatta said “We would love nothing more than to have an international forum for justice and accountability, but what choice do we have when we get only bias and race-hunting at the ICC?” As a side note, President Kenyatta is currently under indictment by the ICC. I am sensing some bias on his part, but that could just be me.
The ICC on a part of their website discussed Mali with a question and answer forum. It actually had a Q and A with “There are allegations that the ICC is only targeting African countries. Is that true? The ICC responded by saying No, the ICC is free form political control. In fact from 2003-2005, the Democratic Republic of Congo, Central African Republic, and Uganda referred their situations to the ICC. Other situations like Libya and Sudan (Darfur) were referred to the ICC by the United Nations. The ICC then goes to point out Africa is the most heavily represented region in the Court’s membership. The ICC is also having examinations into infractions in Afghanistan, Colombia, the Republic of Korea, Georgia, Guinea, and Honduras.
The Situation in Mali and the formal investigation the ICC launched in January into War Crimes has opened up the discussion of whether the ICC is biased towards Africa. However, with many uprisings and instability in Africa there can be abuses against Human Rights and War Crimes committed in countries with little centralized control. The ICC in these circumstances needs to do what they were created to do and investigate/prosecute the criminals.
Is there validity to the claim some African Union members are making that the ICC is biased? Or is there an unfortunate real interest in investigating abuses that the ICC has to look into in many African countries?
International Criminal Court Q& A on Mali
International Criminal Court: Article 53(1) Situation in Mali
International Federation for Human Rights
The ICC’s Rome Statute has been signed and ratified by 122 countries. Superpowers such as the United States and China have failed to ratify the statute and are therefore not under the jurisdiction of the court. However, almost one third of the states that have ratified the statute are African nations. That coupled with the tumultuous nature of the continent naturally attracts ICC’s attention like a laser beam. Yes, in the 11 years since ICC has been created the court has issued arrest warrants for two African heads of state and has turned a blind eye to other crises occurring in Venezuela and other member nations but that is solely due to the mission of ICC. The ICC intervenes when a state is unable to fairly and impartially investigate and prosecute crimes within their jurisdiction. Other nations have not established a failure to appropriately adjudicate their claims whereas African nations have. This can not logically be considered a bias towards prosecuting that nation. It’s a double-edged sword had the ICC not prosecuted African nations some would argue that the ICC turning a blind-eye was a sort of bias.
As far as I know, there does not appear to be any well documented evidence of discrimination on the part of the ICC. Ultimately, I think the remarks of some of these African Union leaders are nothing more than hollow accusations. If there is a disproportionate amount of ICC prosecutions against African states, it is most likely because African states and leaders commit a disproportionate amount of war-crimes compared to other nations. Furthermore, not all African leaders are opposed to the ICC. For example, South African anti-apartheid icon and Nobel peace laureate Desmond Tutu, recently criticized the accusatory nations and compared the ICC opponents to Nazis seeking to evade justice. He stated: “They [African ICC opponents] simply vilify the institution as racist and unjust, as Hermann Göring and his fellow Nazi defendants vilified the Nuremberg tribunals following World War II.” Accordingly, Tutu believes the number of African cases before the court merely reflects on the poor human-rights records of many of the continent’s governments. I tend to agree with him.