Forget the ICC: Reflections on the Bashir Arrest Warrant

The path the ICC has chosen has given rise to several major debates—among them, the question of peace versus justice, and controversy over the meaning of justice itself.  The debate I am concerned with here asks about the broader political meaning of the ICC’s involvement in Africa.  ICC supporters maintain that the Court’s practice has nothing to do with politics, but rather is about global law and justice overcoming politics.  If the ICC is involved predominantly in Africa, they argue, this is because Africa
is the site of more cases of extreme violence that can be effectively addressed through an international legal mechanism and because African states have voluntarily referred these cases to the ICC.  Africa is, if anything, fortunate, ICC supporters say, that
the “international community” has finally decided to get involved in helping it end violence and impunity.

Critics, however, maintain that the ICC’s exclusive focus on Africa is not evidence of Africa’s good fortune, but rather of the continent’s history of foreign domination.Indeed, the ICC’s obsession with Africa should not be a surprise: Africa has traditionally been the terrain where the West, without limitations or accountability, experiments with new governing techniques, economic doctrines, medicines, or weapons before it uses them on the rest of the world.Critics argue, the ICC is simply the most recent manifestation of the West’s civilizing mission in Africa, the newest mode of disciplining “savage” Africans—at present, through the selective application of law and violence.

However, this neo-colonialist critique does not help explain the selectivity with which the ICC has intervened in Africa, pursuing certain parties within certain conflicts while ignoring others.  Indeed, a second strand of political critique points out how closely the ICC has adhered to American interests in Africa and how the ICC has effectively aligned itself, out of its own institutional self-interest, with the U.S. War on Terror.  In the ICC’s practice, American enemies have been criminalized and made legitimate targets for the use of force in the name of law enforcement, while American allies have been allowed to use extreme violence with impunity.  The result is that the ICC is helping to create an expanding geography of violence and impunity in Africa, following most closely the contours of the American War on Terror.

In response to these critics, the Court’s supporters point out that African states themselves signed on to the Rome Statute, that demands for ICC intervention from African civil society groups are regularly heard, and that it was in fact an African judge who presided over the issuing of President Bashir’s arrest warrant.  In turn, critics have responded by dismissing this African support for the ICC as being either strategically motivated (governments or rebel groups wishing to criminalize their opposition) or as being a comprador element, a symptom of Africa’s political dependency.

I argue, however, that we need to take this African support for the ICC seriously.  It cannot be dismissed as strategic, or as false consciousness, as some critics argue, nor does it redeem the ICC, as its ideologues maintain.  Instead, it is precisely this African
support for the ICC, when combined with the Court’s instrumentalization to American interests, that makes the ICC so damaging to African politics and democracy today.

Specifically, the ICC distorts African politics as a result of a major disjuncture to which it has given rise.  On one side are the multitude of demands made by Africans for ICC intervention, expectations of its involvement, and threats of ICC prosecution.  On the other are those instances where the ICC does intervene, not in response to demands or pleas, but selectively in response to its own political and pragmatic exigencies.When the ICC does act, it can usually find an African demand for intervention to use as its public justification.  Still, the problem is that there is no necessary causal link between what people in Africa call for, request, threaten, or declare on behalf of the ICC as a law enforcement institution and what the ICC actually does in the name of implementing the law.The ICC is making available a universally-applicable moral language repeated by hundreds of non-governmental organizations, thus setting the stage for endless appeals from Africans for ICC intervention, appeals that for the
most part simply vanish into the air.When the ICC does act, it can usually find an African demand for intervention to use as its public justification, but this is often a cover to provide legitimacy for the ICC’s political and pragmatic interests. 

This presents not only legal problem, but also political problems, because when people invoke the ICC, they are not simply asking for legal remedy.  Given the deeply political nature of the issues the ICC claims jurisdiction over, they are enlisting on their side the world’s political and military strength.  The mere existence of the ICC creates the permanent possibility of invoking it, and thereby the permanent possibility of raising the stakes of local, national, or regional politics immensely.  At the same time, every demand for ICC intervention is a political demand that has been framed in the ICC’s moral-legal language.  Thus, the existence of the ICC creates the permanent possibility of effecting a dangerous moralization of politics within African states and regions and in Africa’s
relations to the West.  The permanent possibility of ICC intervention, and the possibility of gaining external backing, leads individuals and groups to change their political strategies, seeking external intervention instead of building internal support.  Unsure if the ICC will decide to prosecute them, government leaders are unwilling to leave power, and rebels are unwilling to leave the bush.  The terms in which politics take place become uncertain, since sudden external involvement can sweep away expectations and establish a new political context.

In short, the existence of the ICC, and the ever-present possibility of its intervention, lead political actors to moralize, polarize,
and escalate political controversies and conflicts in ways that close politics to negotiation or compromise, and even undermine the possibility of meaningful politics itself.  The ICC does not have to intervene in Africa for the Court’s mere existence to have these
distorting and anti-democratic consequences for African politics.

In those occasional cases where the ICC does intervene in accordance with its own political and pragmatic interests, the effect is to
provide, suddenly and unpredictably, overwhelming international legitimacy for local political projects, up to and including the use of violence in the name of capturing international criminals.Political actors who claim to have the ICC behind them can ignore
domestic constituencies and even domestic politics, escalating their violence under the cover of international sanction.  As Khalil Ibrahim, the JEM rebel leader, told Al Jazeera: “They say the ICC does not have a mechanism to arrest him [Al-Bashir]. But we say that JEM has its own great and powerful mechanism….[There is] a mechanism by the Sudanese people, a mechanism of Justice and Equality, a mechanism of co-operation with the international community. We shall fully collaborate with the Security Council and the ICC.”  JEM violence has been sanctified in the name of capturing Bashir for the international community, with potential highly destructive consequences for Sudanese politics.  Uganda, for its part, has used the arrest warrants to entrench its own war and expand its dangerous military presence in Southern Sudan and DRC in the name of capturing the LRA. 

By intervening in political conflicts under a moral-legal justification, the ICC interferes politically in Africa while refusing to be politically accountable to Africans—it even prides itself, in the name of judicial independence, on its refusal to listen to those suffering the consequences of its interventions.  Law is supposed to stabilize expectations and take some of the unpredictability and discretion out of politics.  The ICC does the opposite of this, degrading law into a force that promotes political unpredictability and undermines political accountability.

Therefore, the problem with the ICC is not simply that it refuses to listen to Africans and it intervenes only where it suits its
political and pragmatic interests to do so.  Rather, the problem is that, despite the ICC’s track record so far, it still enjoys so much support, so many of us continue to believe in its promise of global justice, and there continue to be heard good faith—and bad faith—calls for its intervention. Perhaps the best solution is for all of us, Africans and Westerners, to ignore—to forget—the ICC, because our belief in it is a major part of the problem.As long as people believe in the ICC, and as long as the ICC must operate in a global political context rent by inequality and domination, the Court will continue to distort politics in Africa and elsewhere in destructive and anti-democratic directions.Indeed, if Africans were to forget the ICC, the ICC, in turn, would have to forget Africa. 

Adam is Assistant Professor in the Political Science Department at San Diego State University.  You may contact him at abranch2@mail.sdsu.edu.