Kevin Jon Heller
Senior Lecturer, Melbourne Law School
"Why is the Prosecutor So Focused on Africa?
The International Criminal Court (ICC) is often derided as the "African Criminal Court." That criticism, unfortunately, cannot easily be dismissed: All of the ICC investigations currently underway under the auspices of the Office of the Prosecutor (OTP) focus on African states (Uganda, the Central African Republic, the Democratic Republic of Congo and Sudan), and the OTP is analyzing the situations in three other African states — Côte D'Ivoire, Kenya and Chad — to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq. Indeed, the OTP refused to investigate the situation in Iraq, even though it had concluded that there is a "reasonable basis to believe" that UK nationals willfully killed a number of civilians and tortured a number of others there.
Many critics claim that the OTP's focus on Africa reflects racism or — in the words of one scholar — "masks a big power agenda to recolonize Africa." Both claims, however, are difficult to reconcile with the ICC's membership. Three of the "big powers" — the United States, Russia and China — have refused to ratify the Rome Statute. And of the ICC's 108 members, approximately 65 are from the "global south," 16 are from Eastern Europe and only 23 are from Western Europe or North America (including traditional imperialist powers such as San Marino, Andorra and Malta). That is a remarkable degree of geographic diversity — and it is mirrored in the diversity of the ICC's personnel. The president of the ICC is from Korea; the first vice president is from Mali; the other judges come from Costa Rica, Ghana, Brazil, Bulgaria, Uganda, Kenya, Botswana and Bolivia, among other countries; the prosecutor is from Argentina; and the deputy prosecutor is from Gambia. Critics have yet to explain why an institution dominated by non-whites and non-westerners would make decisions on the basis of racism or neocolonial desires.
That is not to say that the OTP's single-minded emphasis on Africa is justified. It isn't. But it is important to understand why that emphasis is unjustified. The problem stems from the criterion the OTP uses to decide which situations it will investigate: the number of victims. That criterion explains the OTP's Africa obsession: In its view, the African situations are simply more serious than the non-African situations, because they involve far greater numbers of victims.
That is a principled approach to making investigative decisions, but it's based on the wrong principle. We cannot determine the seriousness of a situation simply by counting the bodies of the victims. Some situations do not involve large numbers of victims but are very serious nonetheless — either because the kind of crimes they involve are committed worldwide, or because they involve crimes that offend fundamental international values.
Consider, for example, a crime that falls into both categories: torture. The prohibition on torture is what international lawyers call a jus cogens norm — an absolute principle that no country is permitted to violate. Yet violate it they do: Human rights groups estimate that more than 130 countries, both authoritarian and democratic, routinely use torture.
Implementing an OTP investigation of a country that tortures would go a long way to deterring other would-be torturers. Yet that is very unlikely to happen, for one simple reason: Even the worst states rarely torture large numbers of victims. In Egypt, there were "only" 292 documented cases of torture from 1993 to 2004. In Colombia, there were "only" 346 such cases from 2004 to 2007.
The OTP's emphasis on the number of victims in a situation is problematic in another respect: It fails to recognize that crimes committed by governments are worse than crimes committed by rebels. The OTP has refused to treat state and rebel crimes differently, insisting that its duty of impartiality requires it to apply the same criteria to every group it considers investigating. That position has a superficial appeal, but it ignores a fundamental distinction between government and rebel crime: Although governments can normally prosecute crimes committed by rebels, they can rarely prosecute crimes committed by their own officials and soldiers.
Indeed, international criminal law itself was established to address precisely that impunity gap. The Allies created the International Military Tribunal at Nuremberg because they knew Germany's national courts could not be expected to prosecute atrocities in which they had played a critical role. "The dagger of the assassin was concealed beneath the robe of the jurist," as the judges wrote in the Justice Case, an American trial made famous in the movie "Judgment at Nuremberg." What is true of the Nazis is no less true of the Ugandan government, the Sudanese government and all of the other governments that the ICC could — and should — investigate: They cannot prosecute themselves.
The ideal situation for the OTP to investigate, then, is one in which government officials and soldiers commit crimes that are extremely common and offend fundamental international values. Fortunately — and to its credit — the OTP is currently monitoring precisely such a situation in Colombia. As described in the film, and as recently affirmed by United Nations human-rights investigators, Colombian soldiers and paramilitary groups associated with the government routinely murder, torture and "disappear" innocent civilians they consider to be overly sympathetic to rebel groups.
The number of victims in Colombia pales in comparison to the number of victims in the African situations — thousands instead of hundreds of thousands — but it is difficult to argue that the Colombian situation is any less deserving of formal investigation. Indeed, initiating such an investigation would not only strike a major blow against impunity in Colombia, but it would also help put the derisive "African Criminal Court" criticism to rest once and for all.
Kevin Jon Heller is currently a senior lecturer at Melbourne Law School, where he teaches criminal law and international criminal law. He has a J.D. from Stanford Law School, a master's degree in literature from Duke University and a master's degree and bachelor's degree in social and political theory from the New School for Social Research, all with honors. His work has appeared in the European Journal of International Law, the American Journal of International Law, the Journal of International Criminal Justice, the Michigan Law Review, the Leiden Journal of International Law and others. He is currently writing a book entitled "The Nuremberg Military Tribunals and the Origins of International Criminal Law," which will be published by Oxford University Press in 2010. On the practical side, Heller has been involved in the International Criminal Court’s negotiations over the crime of aggression, served as Human Rights Watch's external legal advisor on the trial of Saddam Hussein and consulted with the defense in a number of cases at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. He is currently serving as one of Radovan Karadzic's formally appointed legal advisers.