Only a dozen years after it began operations, the International Criminal Court finds itself in a legitimacy crisis. The dropping of charges against Uhuru Kenyatta only compounds the problems created by the ongoing dispute over the ICC’s “geography of justice.” Participants at a 2014 “high-level seminar meeting” in Addis Ababa issued a number of incendiary statements about the Court, arguing that “the ICC has become the greatest threat to Africa’s sovereignty, peace and stability,” and that “the ICC is a colonial institution under the guise of international justice.”[1] These claims are perhaps evidence of a greater concern: international courts face terrific obstacles in building “diffuse support” because global judicial institutions, compared to national courts, have to appeal to a much wider and more diverse audience.[2] The ICC must please many masters, very few of whom are going to be satisfied with its activities.
Another challenge to ICC legitimacy comes from scholars and experts, who have produced a number of articles highly critical of ICC action. For example, conflict experts blame untimely ICC indictments against perpetrators of rights violations like Ugandan rebel leader Joseph Kony and Sudan’s President Omar al-Bashir for ruining peace negotiations that might have ended civil wars.[3] Some even surmise that Libyan President Muammar Gaddafi may have accepted exile were it not for his indictment by the ICC on February 26, 2011; instead, he dug in his heels and fought a bloody war against rebels.[4] Critics also complain that the ICC severely lacks deterrent capabilities, meaning that its decisions will do almost nothing to promote peace or prevent generalized violations of international human rights and humanitarian law.[5]
Nevermind that the factual accuracy of some of these criticisms is questionable; case in point, Gaddafi was offered exile before he was indicted by the prosecutor’s office.[6] These arguments are instructive in that they show a tendency among academics and journalists to report on the “negative unintended consequences” that are generated by the work of the ICC. This should not be a surprise. Demonstrating that well-intentioned progressive action unexpectedly leads to perverse outcomes is the province of social science.[7] In full recognition of a panoply of pessimistic expectations, we argue that the ICC may be having unanticipated, modestly beneficial consequences in some African countries.
Our mixed-methods research contends that positive complementarity has to some degree emerged among African states, but that it has assumed a form slightly different than originally intended, in two ways. First, the effect of ICC involvement has been to increase domestic prosecutions of state agents for human rights crimes in general, not just trials of armed combatants that have committed atrocity crimes. We find that countries under investigation by the ICC have roughly three times as many domestic human rights prosecutions as other states, even when statistically controlling for a number of other factors.[8] This could be positive, because domestic human rights trials have broadly been associated with improved human rights protections over time.[9]
Second, moves toward domestic accountability have come about not because of state cooperation but because of latent struggles between ruling coalitions and reformer coalitions that are exacerbated by ICC involvement. We make the argument that the ICC’s full, active involvement in a country—which is defined here by the beginning of official prosecutorial investigations—creates a “willingness game” between ruling and reformer coalitions. The former attempt to demonstrate their willingness to comply with human rights norms, while the latter try and expose their hypocrisy. Three unintended processes result–demand-making, capacity-building, and gap-filling litigation—each contributing to domestic human rights prosecutions.
This theory poses a challenge to standard models that assume the ICC attempts to coerce states into positive change. If this were the case, the ICC should have more influence in the earlier preliminary examination stages of its involvement, when the threat of future investigation should inspire leaders into action to avoid penalty. We argue, however, that an ICC investigation itself is generative: it sets in motion a series of important responses at the domestic level ex post by changing the interaction between the executive, domestic courts, and local civil society.
Court proponents tend to justify their interventions on the basis that they should do good in the long term, which is harder to observe than short-term missteps and backlashes. Our research goes some way toward exploring the potential long-term benefits of ICC action. However, the implications of this research should not be construed as triumphalist. We find, first, that we should not expect ICC involvement to be very meaningful in political contexts where civil society is completely inoperative. Second, the domestic prosecutions we catalogue across African countries are not the answer to all of society’s ills. Countries like Uganda, the DRC and Central African Republic are still troubled by cultures of impunity, civil war economies, cross-border tensions, sexual violence, rapacious leadership, and weak institutions. However, based on the research, we can say with confidence that ICC investigations have an undeniable causal impact on local judicial practices.
Bibliography
Branch, Adam. 2007. “Uganda’s Civil War and the Politics of ICC Intervention.” Ethics and International Affairs 21 (2):179-198.
Cronin-Furman, Kate. 2013. “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity.” International Journal of Transitional Justice 7 (3):434-454.
Diehl, Jackson. 2011. “After the Dictators Fall.” Washington Post (June 5).
Fabricius, Peter. 2014. “‘Geography of justice’ riles Africa.” Cape Times (South Africa) (April 10).
Fahim, Kareem, and David D. Kirkpatrick. 2011. “Qaddafi’s Grip on the Capital Tightens as Revolt Grows.” New York Times (February 22).
Hirschman, Albert O. 1991. The Rhetoric of Reaction: Perversity, Futility, Jeopardy. Cambridge, MA: The Belknap Press of Harvard University Press.
Kim, Hunjoon, and Kathryn Sikkink. 2010. “Explaining the Deterrence Effect of Human Rights Prosecutions.” International Studies Quarterly 54 (4):939-963.
Ku, Julian, and Jide Nzelibe. 2006. “Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?” Washington University Law Quarterly 84.
Lupu, Yonatan. 2013. “International Judicial Legitimacy: Lessons from National Courts.” Theoretical Inquiries in Law 14:437-454.
Sands, Philippe. 2011. “The ICC Arrest Warrant Will Make Colonel Gaddafi Dig in His Heels.” The Guardian (May 4).
Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics New York: W.W. Norton.
Smith, David. 2011. “Where could Colonel Muammar Gaddafi go if he were exiled?” The Guardian (February 21).
Snyder, Jack, and Leslie Vinjamuri. 2003/4. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” International Security 28 (3):5-44.
[1] Fabricius (2014)
[2] Lupu (2013)
[3] See, e.g., Branch (2007)
[4] Diehl (2011); Sands (2011)
[5] Snyder and Vinjamuri (2003/4); Ku and Nzelibe (2006); Cronin-Furman (2013)
[6] Gaddafi appears to have been offered exile before February 23, which is the date that he gave the infamous ‘cockroach’ speech in which he threatened to massacre opponents. The ICC indictment came after this speech, on February 26 (See Fahim and Kirkpatrick 2011; Smith 2011).
[7] Hirschman (1991)
[8] Data drawn from www.transitionaljusticedata.com
[9] Kim and Sikkink (2010); Sikkink (2011)
Photo: Former President of Côte d’Ivoire Laurent Gbagbo (centre), surrounded by security guards, appears for the first time before the International Criminal Court (ICC) to face charges of crimes against humanity at The Hague, Netherlands. Mr. Gbagbo is the first former head of state to appear before the Court, 05 December 2011 (UN Photo/ICC/AP Pool/Peter Dejong)
