In its first ten years, the icc’s investigations and prosecutions have all concerned situations in Africa. The Court has issued arrest warrants for two African heads of state, and has opposed efforts by African governments to avoid icc involvement in several situations. Moreover, the Court has declined to investigate crimes allegedly committed in Venezuela and by British soldiers in Iraq. These actions among others have led to charges, particularly among African political leaders, that the icc is targeting Africa inappropriately.
To assess the validity of such charges, it is necessary to deconstruct the term “inappropriate.” Following Richard Fallon’s useful tripartite understanding of the term “legitimacy,” I will consider the appropriateness of the icc’s focus on Africa along three interrelated dimensions: moral, legal, and sociological. I will argue that the icc’s focus on Africa is neither legally nor morally inappropriate, but nonetheless threatens to undermine perceptions of the Court’s fairness.
Critics of the icc’s actions in Africa assert claims based in morality, legality, and sociological legitimacy (understood as perceptions of fairness). First, critics accuse the icc of acting immorally by discriminating against Africa and Africans in deciding which situations to investigate and prosecute. The evidentiary basis for such claims is weak. The icc has invoked its own jurisdiction in only one situation. The other situations have all come to the Court through referrals from the states concerned and the Security Council. Moreover, the icc has declined to investigate only two situations outside of Africa. This small number of decisions provides an insufficient basis to conclude that the icc is discriminating in its selection practices. Moreover, the icc has credibly asserted that its decisions have been based on the gravity of the situations.
Second, critics claim that the icc has failed to respect the sovereignty of African states. This is essentially a legal claim. Critics charge the icc with failing to respect the international law governing head of state immunity, which they claim prohibits prosecution of heads of state, even for international crimes. They also charge the Court with violating the Rome Statute’s provisions regarding the admissibility of situations. In particular, they assert that the icc is not respecting the principle of complementarity, which prohibits the Court from investigating or prosecuting cases when a state with jurisdiction is doing so in good faith. Again, there is insufficient evidence to support either of these claims. Although the legal requirements of admissibility and the law of immunity for nonparties remain unclear, the icc has interpreted and applied them in a plausible fashion.
The strongest argument that the icc’s exclusive focus on Africa is inappropriate is a sociological one. Substantial evidence suggests that perceptions of the icc’s fairness have suffered in at least some African audiences as a result of the focus on Africa. However, it remains unclear whether such perceptions are located primarily at the governmental level or are shared widely among African populations. While some African governments, as well as the African Union, have voiced concerns about the icc’s fairness, the available evidence suggests that African civil society continues substantially to support the work of the icc.