The Court, while remaining aloof from political issues, should be a faithful reflection of the international community as it [is] today and not as it [was] in the time of colonial and imperialist ventures.’

 

This statement, made by an African delegate to the UN General Assembly, might have been made today, of the International Criminal Court (ICC). It was in fact made in 1966; one of a number of adverse statements made about the International Court of Justice (ICJ) in the immediate aftermath of its infamous decision in the ‘South West Africa’ case. In that decision, the ICJ (not to be confused with the ICC) decided that African states (represented by Liberia and Ethiopia) had no ‘legal interest’ that entitled them to challenge the policy of apartheid and atrocities committed by South Africa in then ‘South West Africa’. The ICJ’s 1966 decision was a remarkable reversal of its 1962 decision; remarkable both for its risible application of international law (it is generally considered the worst decision of the Court, amongst many), and for the process by which it was reached (on which, more below).

 

Today, adjectives used to describe the ICJ’s 1966 decision (‘scandalous’, ‘a distortion of law’, ‘an insult to the international conscience of mankind’, ‘perverse’, ‘wicked’ and ‘grotesque’) are being levelled against the decision of the South African government to withdraw from the ICC, with a number of other African states likely to follow it to the exit. The similarities between African states’ criticisms of these two quite different international courts, separated by half a century, invite us to consider whether there is anything to be gleaned from African states’ sense of the failure of the ICJ in 1966, and their criticism of the ICC today; which lie at the heart of South Africa’s decision to withdraw from it.

 

The case for and against the ICC is complex; but the more considered arguments consist of the following allegations and responses, articulated with varying degrees of sophistication. On the one side, there are those who claim that the ICC is targeting Africa, pointing primarily to the overwhelming preponderance of African cases on its docket, and the failure to pursue valid cases outside of Africa, as evidence thereof (these are in fact two separate claims: the ICC might be ‘pro-West’ but not ‘anti-African’, or vice versa). The response from those who would defend the ICC (and oppose South Africa’s withdrawal from it) generally begins with the fact that the majority of the cases before the Court were ‘self-referrals’ by African states themselves, then proceeds to discuss other defenses of the Court’s record; including that Africa’s gripe is really with the Security Council, that it shouldn’t matter that other states are not prosecuted (Africa should rise above this inequity and lead by example), and that it is African victims that stand to benefit.

 

The less considered responses include cynical and unthinking ‘arguments’ that African leaders simply prefer war criminals over victims, or want in particular to protect their fellow heads of state. Arguments of the first sort are rarely made of the leaders of many of the states outside of Africa who have never even signed up to the ICC, nor are the geopolitical considerations of the second sort particularly novel, nor particular to African leaders. However, such arguments, by pathologising African leaders and employing the language of ‘gangs’ or ‘Big Men’ clubs, rely on populist if not racist preconceptions.

 

What is less common in these arguments – for and against, high and low – is any attempt to place the ICC in the broader context of the international order and its contentious history. At the very least, then, the similarities between the present fracas and African states reaction to the 1966 ICJ decision might call upon us to pay better attention to this history (particularly when it repeats itself).

 

To make an appeal for historical context is not an argumentative move against the ICC. To misquote Michel Foucault, history is already present in both arguments for and against the ICC. In fact, in the pro-ICC discourse history is omnipresent, albeit performing different functions; sometimes the ICC is placed within larger ‘good’ histories of the progress of international law, at other times it threatens to revolt against ‘bad’ histories (of politics, impunity). The result is that one cannot meaningfully talk about the ICC (and South Africa’s withdrawal from it) without claiming and taking up responsibility for a history of international criminal law (if not of the international order as a whole). Deciding where to start and what to include in such a history is contentious in itself. Here we begin with a broad history of international law generally, and then consider common attempts to locate the histories of international criminal law and the ICC inside or outside it; pointing out supposed breaks and continuities between them.

 

For a long time the standard account of international law was that it begins in Europe and, together with the nation state, slowly (and benevolently) spread throughout the world. With decolonisation under the United Nations following World War II, international law was universalised and along the way it transformed from a thin body of rules governing relations amongst states to a complex system (governing states, institutions, companies and individuals), with human rights as its normative centre. However, over the past two decades a number of histories of international law have emerged that counter this ‘church history’, as it has been called. In particular, one line of new historiography makes that case that international law was not peripheral to Empire and Colonialism but central to it, and that many of its key concepts (such as sovereignty) were inflected if not infected by these projects. This alternate history has gained considerable recognition amongst international legal scholars in recent times. As one such scholar (writing in a mainstream international law text) recently put it: “To speak today of the ‘colonial origins of international law’ is arguably no longer a standpoint of dissent, or of a radical revisionism, but one which is situated in the centre-ground of accounts of international legal history.” That is, the centre-ground outside of South Africa’s remarkably conservative international legal academy. Outside that academy, the debate is now when (or if) international law’s association with Empire and Colonialism ended; and what their legal, political, economic and cultural afterlives are. Here the debate rages on, with many critical scholars pointing to colonial parallels not only in the laws themselves, but also the governing institutions and practices of the present international political and economic order.

 

Supporters of the ICC should be able to demonstrate that it is either distinct from, or has transcended, the ideas, institutions and practices of international law’s colonial and racist past. Within histories of international criminal law, this is usually done in one of two ways (if at all).

 

The first approach posits that international criminal law as a project was initiated towards the end of the Colonialism and therefore escaped relatively unscathed. It argues, broadly speaking, that the post-1945 ‘New World Order’ created by the United Nations, the project of international human rights and (perhaps) decolonisation redeemed international law and that international criminal law is the product of this ‘new’ international law. The Nuremberg trials stand alongside the Universal Declaration of Human Rights as the harbingers of this new international law.

 

However, there are at least two difficulties with histories of this sort.

 

First, accepting the 1945 start date for the project, there were a number of atrocities committed against Africans since 1945 that were not prosecuted, including those routinely and systematically committed throughout colonialism until its formal ending in most of the world in the 1960s. As WEB Du Bois pointed out in 1947: “There was no Nazi atrocity – concentration camps, wholesale maiming and murder, defilement of women or ghastly blasphemy of childhood – which the Christian civilisation of Europe had not long been practicing against coloured folk in all parts of the world in the name of and for the defence of a Superior Race born to rule the world.” Similar problems emerge if one moves the project’s start date back to World War I; as Du Bois already remarked in 1920: “Behold little Belgium and her pitiable plight, but has the world forgotten Congo?”

 

However, the non-prosecution of such ‘deserving’ cases, no matter how widespread, might be dismissed as the product of an imperfect system with poor enforcement, all the better for focusing on crimes committed against African’s now.

 

Well, here the second more challenging difficulty arises; which is that colonial crimes were not simply absent from the milestone moments of 1919 and 1945, rather they were present and deliberately ignored. In 1919, German colonial atrocities committed in South West Africa were not just known to the Peace Conference, they were strategically paraded alongside those committed in Belgium. However, while the Treaty of Versailles called for the outrages committed against Belgians to be prosecuted through a nascent ‘international criminal law’, those committed against the people of ‘South West Africa’ were used to justify placing former Germany colonies under the control of South Africa, to be governed as a Mandate territory (the origin of the 1966 SWA dispute).

 

Similarly, colonialism was raised in the Nuremberg trial as well, only to be glossed over. When US Chief Prosecutor Jackson outlined the case for Germany’s ‘crimes against peace’, he recalled how Germany had determined that in order to become a world power it would have to recover her ‘colonial possessions’. However, nothing more was made of the role of colonialism in the motivation for, or execution of, the Nazi war plan, or of the fact that Germany’s ‘war against the Empire’ involved ‘one-half to one-third of the whole world’. Colonial crimes were also specifically raised in Justice Pal’s fiery and overlooked dissenting remarks at the Tokyo tribunal (which was banned in Europe and North America until the 1970s, and Japan itself until 1952).

 

So, the earlier history of international criminal law is not simply one in which crimes committed against Africans were overlooked, it is one in which they were mobilised in service of further subjugation under the Mandates system, and to condemn German expansionism but not acknowledge its broader colonial context.

 

Bringing the start point forward to the 1990s doesn’t solve the problem either. While the ad hoc Tribunals established by the United Nations in the 1990s (to prosecute crimes committed in the former Yugoslavia and Rwanda) were a legal improvement on Nuremberg in some respects; the uneven treatment of Rwandan attempts to try individuals domestically (when compared to Bosnia), casts a shadow over these efforts as well. Then there is the very obvious non-prosecution of apartheid crimes post-1994, which was not only accepted by the international community, but vaunted. This notwithstanding the fact that a convention was adopted in 1973 specifically calling apartheid an international crime (and doing little else), and that in the 1990s that criminal prosecutions of such acts were the norm, if not a norm of international law (in the form of a peremptory rule obliging prosecution).

 

This is a necessarily truncated history (which omits other important events, such as the ‘hybrid’ tribunals and domestic trials), but the short point is that it is difficult to take seriously a history of international criminal law pre-ICC that does not acknowledge that it, like international law, has a long colonial and racist shadow.

 

Given such challenges, the second approach to the ‘problem’ of history for proponents of the ICC is to acknowledge (to some degree) its imperfect past, but position it as a ‘revolutionary’ break from it.

 

The potential for the ICC’s to ‘decolonise’ international criminal law was one of the stated reasons for the considerable support for the project amongst African states from the outset. A declaration of African states adopted in Dakar in the lead up to the ICC’s establishment called for an independent, permanent and effective Court, as well as one that was impartial and just (with an independent Prosecutor and “without being prejudiced by actions of the Security Council”). At the Rome Conference were the ICC Statute was adopted, former South African justice minister Dullah Omar (speaking on behalf of SADC states) reiterated these sentiments and added that “the Court should contribute to furthering the integrity of States generally, as well as the equality of States within the general principles of international law”. Similarly, Tiya Maluwa, speaking on behalf of the then Organisation of African Unity, pointed out that  “Africa had a particular interest in the establishment of the Court, since its peoples had been the victims of large-scale violations of human rights over the centuries: slavery, wars of colonial conquest and continued acts of war and violence, even in the post-colonial era.”

 

However, all told, most of these redemptive ICC histories focus on its triumph over its own internal anxieties; the moniker of ‘Victor’s Justice’ that haunts Nuremberg; the Great Power politics of the Cold War which ‘froze’ its development; the political nature of the 1990s Tribunal’s established by the Security Council; or the perennial claim that international law isn’t really law. Little attention is paid to whether the ICC lived up to the expectation that the ‘revolution’ would include a break from international law’s colonial and racist past. African states certainly don’t think it has.

 

The debate over the ICC today should also be a debate over whether it is in fact a revolutionary institution that has overcome international law’s past. Set against these histories, the debate takes on a complexity that exceeds its current narrow framing. Should this question be taken up, two points should shape such discussions.

 

The first is a simple one: With the considerable weight of this history, not only of international law but of international criminal law as well; the onus is also on the ICC and its supporters to show that it is not - like so much of international law – targeting Africa. Put differently, it is the spectre of history itself that raises the question of the ICC’s relationship to colonialism, not simply self-interested African states.

 

To date, neither the Court nor its supporters have taken much notice of this history or the concerns its raises, let alone tried to address them. On a charitable interpretation, the first Prosecutor Luis Moreno Ocampo (when he wasn’t leading film crews through the Congo in a white linen suit) was very focused on the existential anxieties of the ICC (i.e that it would not get any cases). So he took cases wherever he could get them, even solicited them through self-referrals (notwithstanding the ICC’s founding principle of ‘complementarity’). The current Prosecutor Fatou Bensouda (Ocampo’s former Deputy), has made some important changes to the way the Prosecutor’s office works, without substantially changing the ICC’s course. On the whole, the self-styled ‘international justice’ community of NGOs and academics has, to use its own vernacular, been unwilling or unable to take this history seriously. This is a great shame, and a missed opportunity; which might already be lost.

 

The second point is more complex, and involves returning to the 1966 decision of the ICJ. In that case the failings of international law and its (then) premier judicial organ seemed patently clear at the time. The 1966 decision was a complete and legally indefensible reversal, of a point the Court had already addressed, which could be explained by the influence of powerful states on the ICJ generally. However, this too was more complex than the simple ‘misapplication’ of legal rules.

 

In 1966 the ICJ judges were deadlocked (7-7), a tie only made possible by the ‘recusal’ of a Judge Khan from Pakistan. As a result, the deciding vote was cast by the President of the Court, Judge Spender of Australia. At the time there was suspicion over the role played by Spender in Khan’s supposed recusal, and recent scholarship based on new archival work reveals that his exclusion was engineered by Spender (who lied to Khan about the opposition of a majority of his fellow judges to his sitting on the case, when in fact it was only the Australian and British judges who opposed it). But for Khan’s recusal, the result would have almost certainly gone the other way.

 

The effects of the 1966 ICJ decision were felt not only by people of South West Africa; it set back the international struggle against apartheid (South Africa claimed afterwards that, notwithstanding the ‘technical’ nature of the ICJ’s decision, the Court had in fact redeemed apartheid generally as a benevolent civilising project), and shaped the relationship between newly-decolonized African states and international law (and its institutions). The revelation that it was engineered in part by judges from two self-styled ‘white men’s countries’ to protect the interests of another, is both emblematic of the role that race and colonialism continued to play in the operation of international law and its institutions post-1960, and risks oversimplifying this role. In much the same way, former ICC Prosecutor Ocampo’s ‘tweet’ last week – “African bias cover up African killers. Holocaust denial cover up Nazi crimes” – might be emblematic of its role in the present, while at the same time risking oversimplification. (Note: ‘European’ crimes are particularized, both to actors and the past, and the political, is mediated through law and hence criminal. Africans act collectively and permanently, while their agency is subsumed by their identity (they don’t act, they are)). Mr Ocampo’s tweet might be idiosyncratic or symptomatic; it certainly was idiotic and simplistic. Nevertheless, it calls attention once more to the questions of the histories of the present; or at least it should.

 

Regrettably, much of the discourse about the ICC and Africa, and in particular its most recent iterations, overlooks both the challenges of this history and the complexity of its continuing afterlives; often in favour of simple answers to seemingly straightforward questions (such as, are you for or against ‘international justice’).

 

We need to ask harder questions, and demand better answers. We need questions that take international law’s colonial and racist past seriously; that ask what links together 1966 and the present moment (or sets them apart), and what this means for ICC. We need questions that move beyond the ‘for or against’ international justice rhetoric, and ask what type of justice the present international order (through the ICC) promises, and whether it can deliver it. Not just for the victims of the narrowly defined list of ICC crimes; but all victims of the political and economic violences of the present order. An order, it must be pointed out, presided over not just by states and the leaders that sometimes stand accused by the ICC; but the rules, institutions and practices of international law through which we seek to simultaneously order the world and seek ‘justice’ from it.

 

Then, we need answers that, again, take international law’s colonial and racist past seriously, that are less confident about our ability to have overcome this deeply sedimented past, and are more attentive to claims that we have not. Answers that don’t pathologise African leaders or rely on legal technicalities or the thin justifications of state consent, and that don’t recur to seductive but decontextualised tropes about ‘international justice’.

 

Finally, we need better answers to quell the cynics inside us who would otherwise conclude that the arc of international criminal law is indeed long, and bends towards justice, but not the justice of which Martin Luther King Jr. dreamed. Rather, justice of the sort described by Charles R Lawrence III in an anecdote “relayed only half in jest on a black ghetto street corner, tell[ing] of a local philosopher who journeyed to the courthouse and jail in search of justice and, sure enough, found ‘just us’”.

 

Main Photo: Sudan president Omar al-Bashir at the 9th African Union Conference in Ethiopia. Bashir’s visit to the country in 2015 drew the ire of non-governmental, legal and civil society organisations after the South African government refused to fulfil its Rome Statute obligations and arrest him for crimes against humanity. South Africa has since announced that it will be withdrawing from the International Criminal Court —  U.S. Navy photo by Mass Communication Specialist 2nd Class Jesse B

 

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