By W Douglas Smith Staff Writer November 1, 2009

“Why are African leaders being put to trial?”

“Why are African leaders being put to trial?”

This was the question put forth by Jean Ping, Chairman of the African Union’s Pan African Parliament. During a meeting last week in South Africa, Mr. Ping questioned the International Criminal Court (ICC) on its continued and unflinching interest in the African continent. “Why Africa only?” asked the Chairman. He is not alone in his concern.

Over the last several months there has been a noticeable increase of discontent among African nations over its singular focus of the ICC on African countries. In March 2009 the Court issued a warrant for the arrest of Sudanese President Omar Al-Bashir on charges of war crimes and crimes against humanity. Following the indictment there was a groundswell of support for President Bashir amidst African leaders, many of whom – excluding Uganda and South Africa – have indicated that they will not honor their obligation to arrest Bashir.

The International Criminal Court came into legal being on July 1, 2002 through the Rome Statute, a United Nation’s treaty that forms the Court’s charter and provides it authority. It is considered a court of last resort. Its sole function is to try the perpetrators of the world’s most egregious crimes: genocide, ethnic cleansing, war crimes, and crimes against humanity. There are currently 110 countries party to the Rome Statute.

Of all the continents with states party to the Court, Africa has the most, with thirty. African states were some of the ICC’s most vocal supporters during the deliberations over the Rome Statue. They were among the first to ratify the treaty and become full members of the Court. Something about the ICC’s mandate to end impunity for heads of state resonated deeply with many in Africa. It represented, perhaps, the opportunity to end one of the most troublesome leitmotifs in the continent’s modern history.

If that is the case, why, then, is there so much discontent from the Court’s one-time supporters?

This is best answered by a quick look at the Court’s docket. There one finds eight cases, all involving African countries. In fact, every single person tried by the ICC has been the citizen of an African nation. The point of contention for many is that the Court’s Prosecutor, Luis Moreno-Ocampo, has thus far selected only to pursue cases that involve African countries and African criminals.

The ICC has opened investigations in four countries, Sudan (in the Western region of Darfur), the Central African Republic, the Democratic Republic of Congo, and Uganda. A number of other countries have requested that Mr. Moreno-Ocampo open investigations. These include Afghanistan, Iraq, Georgia, and Palestine. The government in each of these nations is currently awaiting the Prosecutor’s decision on whether or not the Court will begin an official investigation.

Nevertheless, the ICC has yet to issue an application for an arrest warrant for crimes committed on a continent other than Africa. This has many African observers, scholars, and politicians feeling unfairly treated by the very institution they once championed.

There is a delicate dynamo at work in the Court’s powers; there is a fine balance between the inviolability of sovereignty and the reach of international justice. This subtle machine is kept in check partly through the Court’s lack of enforcement power. The Court must rely on member states to help enforce its rulings and to apprehend the subjects of arrest warrants. The Court, itself , has no power to arrest and apprehend criminals.

Thus, by design the ICC needs the support of as many nations as possible in order to be effective. The more countries that ratify the Rome Statute, the more they are bound to help the Court discharge its mandate.

As with many things in world politics, where the major powers go, especially the permanent members of the UN Security Council (the P5), so goes the majority. If the P5 do not go quietly, the prospects of being cajoled certainly increase. Currently, China, Russia, and the United States have not ratified the Rome Statue, and so remain outside the membership of the Court.

Take a moment to cross-reference non-member P5 states with instances where states have requested, but have not been granted official investigations (e.g., Iraq, Afghanistan, Georgia, and Palestine).

What this illustrates is that accusations of neocolonial intent on the part of the ICC are misguided. The Court’s selections are not informed by nefarious intentions. Rather they are indicative of its shrewd political calculus. The ICC does not have the legitimacy or backing at this point to go to politically sensitive places—places where a major power might object. This is especially true of the Court’s dealings with American interests. The attitude of the United States toward the Court during the Bush administration was one of acrimonious dismissal at best.

Therefore, these early cases for the ICC must not only be supported by strong evidence; they also must not obtrude on major power interests. The Court knows that it must build its legitimacy on the edges of international politics and grow slowly in stature and legitimacy. The Court is aware that it is too weak to challenge a P5 country directly, so it avoids Iraq and Georgia. It is cognizant too of challenging a country that enjoys a major power’s alliance, and so it does not open an investigation in Palestine. The ICC knows that it must carve out its place in the larger realm of international institutions. But it can only do so where interests of the powerful do not collide.

So it goes to Africa.