Why is the International Criminal Court reluctant to use African laws? Between conspiracy theory and reality
Prepared by the researche : Amro Selim – PhD researcher at the Faculty of African Graduate Studies – Cairo University
DAC Democratic Arabic Center GmbH
Some African researchers believe there may be a bias in the use of international laws against African countries. Some believe these laws were created to restrict their freedom and target them, or at least to complement the European plan for the occupation of the African continent. They also attempt to undermine the leaders and commanders of these countries and influence them to follow Western laws and legislation within their countries. This attempt aims to subjugate them and restrict their freedom of decision-making, rendering them subservient to the West, thus serving as a tool for legal pressure and international prosecution when necessary. Some support the idea that some African laws are inconsistent with freedoms and democracy, and some Africans even complain about their effects, as well as the deteriorating political and security conditions within parts of the African continent.
Overview
Some researchers address what they describe as the International Criminal Court’s hostility toward African leaders, its focus on African issues and its prosecution of African leaders without regard for their immunity. They also discuss the court’s failure to engage African experts and specialists and its legal institutions as supervisors to assist it in its specialized legal consultations, which suggests bias against the continent. They also evoke the colonial era and Western racism against Africa. The researchers cite the submission of notices of withdrawal from the ICC by Gambia, South Africa, and Burundi. In 2017, the African Union even called on African countries to withdraw collectively from the court. Although this did not happen, it illustrates the tension between the court and African countries, the lack of tools that would allow African countries to reach common understandings with the court, or perhaps the ICC’s failure to listen seriously and discuss the matter with African countries.
Ignoring African National Laws
Researchers believe that ICC judges do not refer to African national laws to interpret their legal intentions or to guide their rulings. They concluded this by examining a database containing 16,192 citations of the ICC, compiled over nine years. The database showed that in the records examined, the court rarely refers to national laws, but when it does, it pays almost no attention to the laws of African countries and other countries in the Global South. Instead, it cites more laws from the United Kingdom and the United States, does not resort to the Third World Approach to International Law (TWAIL), and does not cite Global South laws in cases brought before the ICC.
The researchers concluded this by explaining that 246 citations related to the interpretation of law were found to be from non-African national laws and only 16 citations were from African laws. By examining the previous citations, the researchers found that the ICC frequently resorts to European and American laws and avoids African laws, which deal more accurately with the realities and circumstances of the African continent. This is despite the fact that the accused are Africans and not from outside the continent. Even when they cited African laws, they resorted to African regional bodies rather than national laws. They attributed this to the ICC possibly giving greater credibility to African regional bodies rather than national laws or perhaps considering them more useful in interpreting the Rome Statute or defining principles of international law.
Darfur and Congo Models
The researchers cited the example of the International Criminal Court’s indictment of both Abdullah Banda and Saleh Jerbo, leaders of the Justice and Equality Movement splinter group and the Sudan Liberation Army/Unity Movement, responsible for participating in the commission of crimes and involvement in an attack against the African Union Mission in Sudan in Darfur on September 26, 2009. The court relied on English and American judicial rulings, and did not use African or, at least, Sudanese laws, nor did it document its reliance on them. This, the researchers explained, was examined through court records. Another example to demonstrate the court’s bias against Africans and its failure to use African laws or even to research them and record this matter in its records is the case of Congolese politician Jean-Pierre Bemba, who was accused of crimes against the administration of justice, including corruptly influencing witnesses, providing false evidence, and giving false testimony. The court relied on the laws of Germany, Italy, France, Mexico, Slovakia, Switzerland, and the United Kingdom, and the judges neglected to address and examine them. The laws of the Central African Republic, which was originally a French colony, are based on the fact that the nationality of the accused and the location of the incident are Central African.
Outcomes of the Colonial Period
The researchers addressed the impact of the European colonial period on the African continent on the nature of African legal sources. In their study, the researchers explained that colonialism negatively impacted African peoples, rendering them stateless and rendering them mere colonies of the “European” mother countries. This left African peoples far removed from participation in the issuance of international laws, and they rarely participated in the development of international law. Furthermore, most international law scholars are European, resulting in European laws that are far removed from African culture and mentality, and may be inappropriate for African societies. This suggests a Eurocentric approach to international law, as evidenced by the lack of citations to the laws of the Global South. The researchers also explained that there is an assumption that explains the reliance of international criminal justice—on the assumption that legal sources are largely found in American trials, but not in African or Chinese law, for example—which confirms the distortion of the sources of international law, which some African and Global South scholars have left in the hands of Europeans. This has led Western scholars to develop methods to separate the material and formal sources of international law. The customary, from its historical roots, is reflected in the disregard for culture and history, which supports material sources primarily related to colonial ideas and practices that are inconsistent with the nature and history of the African continent.
Researchers have cited the fact that the 1856 Treaty of Paris changed the international community’s description of European countries from “Europe” to “civilized nations.” This means that civilization was limited to Europe, and other countries would be considered outside the classification of civilization. This links Europe to the idea of the unilateral establishment of international law, which the researcher considered a failure or lack of visibility of the pivotal role of the countries of the Global South in developing international law and effectively influencing it.
European American Dominance
Researchers have assumed that international law was constructed equally across states and local and regional cultures. However, the reality is that most of the references and applications in international courts are dominated by European and American laws, as is the case at the International Criminal Court. This not only reflects the failure of ICC judges to treat African laws with the same standard and weight as European and American laws, but also a bias against countries of the Global South and parties described by researchers as “backward.” This bias has been rooted in the development of international law since its inception. Evidence of this is the ICC’s use of the laws of France, Germany, Italy, Mexico, Slovakia, and Switzerland to precisely define the scope of false testimony to omit the truth during the trial of Congolese politician Jean-Pierre Bemba. Despite Mexico being located in the Global South, the court cited it.
Countries that gained independence from colonialism relied on the law of the colonizing countries because the laws of the newly liberated countries were linked to those countries during the colonial period, as was the case in Nigeria and Kenya, whose legal systems were similar to those of the United Kingdom. This link intensified after independence. Despite this point, the researcher believes that this does not mean that the International Criminal Court can simply rely on the laws of the colonizers as an alternative to African laws. African countries have their own laws, both pre- and post-colonial, formal and informal.
The Decline of Global South Countries
The researchers point out a vital point in their study: some developing countries do not publish their legal practices in a systematic and regular manner that would allow for international monitoring. They attribute this to a lack of material and human resources, and perhaps because the documentation process is not part of the culture of these emerging countries. Furthermore, the productivity of developing world scholars is lower than that of their counterparts in high-income countries, making it difficult to find their contributions online and make them available to all interested parties worldwide in a language that the court’s judges and experts can accurately understand.
The researchers called on the International Criminal Court to make additional efforts to examine African laws, considering them “exposed to injustice and discrimination.” The court’s judges preferred to use European and American laws when considering various international cases, even if the parties are African and the events also took place on the African continent, as was the case in the trial of both Abdallah Banda and Saleh Jerbo in Darfur, as well as the Congolese politician Jean-Pierre Bemba. The researchers called on the court’s judges to look at the national laws of the countries that would normally exercise jurisdiction, which constitute one of the diverse legal systems from which general principles of law can be extracted and applied, taking into account the powers and laws of the International Criminal Court, through the presence of some terms such as “appropriate” or its use “when necessary,” because these two words give the court’s judges broad powers that may ignore dealing with African laws, considering them inappropriate or inconsistent with the general principles of law – from the court’s point of view – even if they are appropriate and consistent with the principles of international law. This means that some countries are establishing mechanisms and procedures to deal with criminal accountability for international crimes, where it can be practiced. Jurisdiction over international crimes by international courts is based on applicable treaties or UN Security Council resolutions. The court may find these mechanisms inappropriate from its own perspective.
The researchers drew attention to an important point: Article 38 of the ICJ Statute, Article 38 (3), stipulates the application of “the general principles of law recognized by civilized nations,” which limits its application to specific countries, excluding African countries and emerging countries in the Global South.
National Laws vs. International Law
There were those who believed that the International Criminal Court should apply national laws directly, because the accused would be familiar with them. It is unreasonable for someone to be able to know the different laws of different parts of the world. This also aligns with the desire of some states to protect their sovereignty and their ability to enforce laws that apply to their citizens. The most prominent of these movements were China, Japan, Israel, and some Arab states. Another group believed that the International Criminal Court should be able to apply only international law, and that the direct application of national laws would lead to inconsistencies in justice and hinder the development of a coherent body of international law. This clarifies that the court must examine all aspects of international law before resorting to national laws. If it does resort to them, it must be within the limits of international law. According to this group, if national laws are directly imported, it will necessarily result in similar cases being judged differently depending on the location or nationality of the accused.
Researchers have pointed out that several motives lie behind the trend toward relying on international law rather than national laws. These include differences in the languages in which laws are issued and interpreted. This tends to make the court’s judges tend to resort to legal systems with which they are more familiar, such as systems based on Roman law, and particularly European legal systems. Therefore, ICC judges may prioritize knowledge of their own laws or similar laws from other legal systems. Their research may be limited to the means available to them and to laws in languages they understand, to avoid any misunderstandings in the interpretation of some national laws, which would affect their judicial rulings. Furthermore, judges are selected from a very narrow circle of elite diplomats and jurists who possess academic, legal, diplomatic, political, and economic expertise.
Marginalization of Global South Countries
The researchers explain that it is not surprising that the International Criminal Court cites the national laws of the Global North—Europe and the United States—more than it does African and Global South countries. This is because some of these laws must be examined to determine their relevance for deriving general principles of law. They therefore call on the ICC to further expand its scope by examining African laws and the laws of other countries in the Global South. This is to ensure fairness and legitimacy, and to improve the Court’s jurisprudence. This would also make international law more representative of diverse peoples around the world, increase its inclusiveness, enhance confidence in international law, and prevent the marginalization of the laws of Global South communities. This is particularly true given the encouraging proportion of ICC judges from Africa. In 2010, five out of 18 judges were African, and now four out of 18 are African.
The researcher believes:
I agree with the researchers on some points mentioned in their research paper, the most prominent of which are:
1- The International Criminal Court’s clear focus on violations and crimes occurring on the African continent, while deliberately ignoring and overlooking war crimes and violations against humanity occurring around the world. This is perhaps due to the fact that most of the ICC’s funders, and perhaps the United Nations, are from Europe and the United States. Therefore, it is difficult for the court’s judges to ignore this point, even if it is not explicitly stated. Rather, we can clearly see it in international cases involving the United States, Britain, or even Israel. Perhaps what happened in Iraq, Afghanistan, and Gaza clearly confirms this, with crimes committed during the Israeli attack on Gaza. On January 1, 2015, the Palestinian government filed a declaration under Article 12 of the Rome Statute accepting the Court’s jurisdiction over crimes committed in the occupied Palestinian territories, including East Jerusalem, since June 13, 2014. This is despite Palestine’s accession to the Rome Statute by depositing its instrument of accession with the UN Secretary-General, and the entry into force of the Rome Statute. As for Palestine, on April 1, 2015, we have not seen even signs of action against Israel or any of its leaders implicated in war crimes or violations against humanity. Instead, there is continued US and European funding for the court. These developments have inflamed some Africans against the court, and perhaps this is what led Gambia’s Minister of Information, Sheriff Baba Bojang, in 2009 to describe the ICC as “the Caucasian International Court for the persecution and humiliation of people of color, especially Africans.”
2- The accusations against some African leaders have raised questions among a number of political observers about the extent of its action regarding the information submitted to the International Criminal Court regarding crimes committed in non-African countries such as Iraq, Venezuela, Palestine, Colombia, Syria, Yemen, and Afghanistan. The court has placed these crimes under preliminary examination and has not decided to open an investigation. This may come at a time when the court has filed an indictment and arrest warrant against former Sudanese President Omar al-Bashir, on charges of committing crimes and crimes against humanity. The court also indicted Kenyan President Uhuru Kenyatta and his deputy, Wiliamruto, in 2011, on charges of sponsoring ethnic violence after the disputed presidential elections in 2007, and two other individuals for committing post-election crimes. The court also investigated former Ivorian President Laurent Gbagbo and Jean-Pierre Bemba, former Vice President of the Democratic Republic of the Congo. At the same time, the court has not investigated Syrian President Bashar al-Assad, who is supported by major powers, namely Russia, which uses its veto to prevent any international intervention in Syria against his regime. Despite his and Russian forces’ commission of crimes against civilians on Syrian soil,
This has led some African leaders to attack the International Criminal Court and refuse to cooperate with it. There are even calls for a collective African withdrawal from the court. For example, Rwandan President Paul Kagame considered the court to be established to prosecute Africans and other poor countries, describing it as a new form of colonialism designed to restrict individuals from poor African countries. Kenya also attacked the court following the indictment of the Kenyan president and his deputy. The court was attacked in Kenyan newspapers, described as “imperialist,” “neocolonial,” and a “white man’s court.” This prompted the Kenyan parliament to terminate Kenya’s membership and cooperation with the ICC.
While I agree with the researchers that the International Criminal Court has focused its attention on the African continent, and has accused and prosecuted many African leaders, it has simultaneously overlooked violations committed by leaders of other countries. However, there are several points that the researchers overlooked in the accusations they have leveled against the court, namely:
- African countries voluntarily agreed, without any coercion or pressure, to submit to the jurisdiction of the International Criminal Court. When the court issues indictments or requests the arrest of some African leaders, the court is attacked and described as neo-colonial and biased against the continent and its leaders. It is unreasonable that the court was established specifically to prosecute African leaders, some of whom are fundamentally part of the international system and may be active in some of its various political and military movements, each according to their own interests. The Kenyan parliament, which attacked the court and decided to withdraw from it and cease cooperation with it, is the same parliament that attacked the Kenyan political system after welcoming Al-Bashir to the country because of the court’s decision to prosecute and arrest him. In other words, there is a dual perspective in dealing with the court. When the matter does not concern the country and its leaders, it demands respect for and compliance with its decisions. When it concerns internal affairs, it is attacked and cooperation with it is halted.
2- The main argument used by some African countries – and which researchers have pointed out as being practiced against African countries – regarding court decisions is related to interference in their internal affairs and threatening their sovereignty. However, it is noted that there is a difference between state sovereignty and individual sovereignty within some African countries. In the past, before the spread of ideas related to human rights and freedoms and those rights transcending the local scope, and vice versa, their penetration from the international framework to the local, state sovereignty is being redefined, especially in African countries that suffered from the consequences of occupation for decades, which focused on the indirect rule system, which included the use of local leaders to preserve its interests and survival. This required overlooking the brutal authoritarian practices of these leaders as long as they were in the interests of the European occupation of the continent. Even those of them who struggled against foreign forces made them seize the state as their personal property, using in this the argument of the role they played during the period of the struggle for independence. The emphasis is on the state apparatus and some of its institutions being the most important, in parallel with the neglect of the rights of some peoples, which entrenched the idea of a one-man rule system on the continent, and created a state of This has led to a loss of confidence in some African leaders and legislative institutions, as well as raised doubts about the integrity of some official governance structures.
3- In their research paper, the researchers attacked the International Criminal Court, accusing it of deliberately neglecting the application of African national laws and resorting in most cases to European and American laws, and sometimes to regional bodies. The response to this is that some legislative institutions on the continent suffered during the occupation period from the executive authority’s control over some of its decisions and sometimes directing them according to its own vision and interests. This meant that some of them lacked really legislative authority and were assigned some routine advisory tasks. After independence, the countries of the continent were divided between one-party systems and military systems, and the legislative authority was left with either submitting to the ruling party or the military regime holding the reins of power or demanding real legislative independence and entering into confrontations with the ruling authority, which means entering into a confrontation with the ruling force. This affected the competence of some of its members and the extent of trust in them, in addition to the lack of many legislative bodies of the knowledge and training necessary for the legislative process, which consequently made the loss of international confidence in their legislation and laws somewhat justified. It is not reasonable to produce reliable laws that represent popular demands and needs and are related to justice in a way that Fairness in these conditions, which are inconsistent with the foundations of justice and the rule of law.
Conclusion
It seems easy to blame the International Criminal Court, accusing it of bias against Africans, marginalizing their national laws, and not resorting to them during international litigation, or even through international legislative and judicial channels. However, the truth is that the international community, with its various institutions, has only seen the negative side of the African legislative environment, and the executive’s control over many of its decisions, to the point that in some countries, it has become a brutal tool against opponents and intellectuals. This is due to the absence of democracy in some countries on the continent, the weakness of various institutions, and the absence of African legal experts on the international scene, due to material, intellectual, and perhaps political circumstances. It is unreasonable, under these circumstances, to demand that the international system—considering the International Criminal Court as a part of it—respect the laws, some of which may have occurred under circumstances devoid of transparency, justice, and integrity, and may have been drafted by non-specialists or those lacking sufficient legal knowledge.
Indeed, the court is somewhat biased against Africans, and it may be a tool for political and economic pressure against African countries, which are rich in natural resources. However, developing the national African legislative environment is the best solution for enacting laws capable of gaining the confidence of the international community and its various institutions. Rather than withdrawing from the ICC and attacking it, given the spread of civil wars, military coups, and crimes against humanity on the continent, this may actually be a punishment for Africans rather than the court.
References
References in Arabic:
أولًا- الوثائق:
- المحكمة الجنائية الدولية، تقرير عن أنشطة المحكمة الجنائية الدولية وأداء برامجها لعام ٢٠١٢، ICC ASP/12/9 ، لاهاي،٢٠-٢٨ نوفمبر٢٠١٣.
https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP12/ICC-ASP-12-9-ARA.pdf
- المحكمة الجنائية الدولية، الحالة في دولة فلسطين، لاهاي، ١٥ نوفمبر ٢٠٢٤.
https://www.icc-cpi.int/sites/default/files/2023-06/2022-05-victims-info-palestine-ara.pdf
- موقع الأمم المتحدة، النظام الأساسي لمحكمة العدل الدولية، ١٥ نوفمبر ٢٠٢٤
https://www.un.org/ar/about-us/un-charter/statute-of-the-international-court-of-justice
ثانيًا- دراسات وأوراق بحثية:
- هوارد فارني وكاتارزينا زدونكزيك، تعزيز المساءلة العالمية دور الولاية القضائية العالمية في مقاضاة الجرائم الدولية، المركز الدولي للعدالة الانتقالية، ديسمبر ٢٠٢٠
https://www.ictj.org/sites/default/files/ICTJ_Report_Universal_Jurisdiction_ARABIC_0.pdf
References in English:
A- Documents:
- The International Criminal Court, SITUATION IN THE CENTRAL AFRICAN REPUBLIC, ICC-01/05-01/13, 19 October 2016.
https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2016_18527.PDF
- The Judges of the Court, The International Criminal Court (ICC), ICC-PIDS-FS-04-014/21_Eng,16 Nov 2024.
https://www.icc-cpi.int/sites/default/files/Publications/JudgesENG.pdf
B- Articles:
- Gichuki, J. W, African State Sovereignty and the International Criminal Court: Case Studies in Analytical Context, in the African Journal of Democracy and Governance (Soth Affrica: V.1, No,4, 2010) PP. 103-120
- James E. Archibong, The ICC: A Global Court to Fight Impunity or a Court Targeting Africans, in The International Journal of Humanities Social Sciences and Education (IJHSSE) (India: ARC Publications, V.6, Issue 8, August 2019) PP. 22-32
https://www.arcjournals.org/pdfs/ijhsse/v6-i8/3.pdf
- Mojeed Olujinmi A. Alabi, The legislatures in Africa: A trajectory of weakness, in The African Journal of Political Science and International Relations ( Cairo: International Scholars Journals, V. 3, No.5, May 2009) PP. 233-241
- Rukooko, A. B., & Silverman, J, The International Criminal Court and Africa: A Fractious Relationship Assessed, in The African Human Rights Law Journal (South Africa: University of Pretoria, V.19, No.1, July 2019) PP. 87-108
https://www.ahrlj.up.ac.za/issues/2019/volume-19-no-1-2019
- Stewart Manley, Pardis Moslemzadeh Tehrani and Rajah Rasiah, The (Non-)Use of African Law by the International Criminal Court, in The European Journal of International Law (UK: Oxford University, V. 34, No. 3, 2023)
https://academic.oup.com/ejil/article/34/3/555/7236903
C- Reports:
- Tim Murithi, The African Union and the International Criminal Court: An Embattled Relationship?, in the institute for Justice and Reconciliation (IJR) (Cape Town, No. 8, March 2013)
https://www.ijr.org.za/home/wp-content/uploads/2017/05/IJR-Policy-Brief-No-8-Tim-Miruthi.pdf
