This week's Mail & Guardian contains two contributions related to the ongoing spat between the International Criminal Court (ICC) and African states, in anticipation of this weekend's Extraordinary African Union Summit on the issue. The two offerings on the ICC-Africa issue are contained in its Editorial (no less) - titled 'SA must stand up to ICC's detractors' (p. 34) - and an article by one Mmanaledi Mataboge - titled 'Heat is on SA over world court' (p. 12). In general, I have great respect for the MG print edition as well as its online platform (although their proclivity for headline puns annoys me a little). However, its Editorial contains fundamental and inexcusable factual errors which, beyond mere sloppy journalism, do little to contribute to the public debate on this important issue.
The errors in the Editorial include the following:
- The Editorial suggests that 'it does look as though the court is unfairly targeting the continent ... [as] almost all the cases before it now are African'. Correction: all the current cases are from Africa.
- It goes on to state:
'Last week in Cape Town, the former United Nations secretary general Kofi Annan reminded us that, of the six African cases the ICC is prosecuting, five were referred to it by the nations involved, so they obviously support the ICC process and find it valuable in dealing with human-rights abuses in their countries. The exception, however, is the troublesome one: Kenya.'
This might pass for reporting if in fact that is what Mr Annan said. I wasn't there but, if it is what he said, then he was wrong and the MG is wrong for repeating it. There are currently eight situations before the Court, all involving African countries (Côte d’Ivoire, Uganda, the Democratic Republic of Congo, Sudan, the Central African Republic, Kenya, Libya and Mali). Within these situations, there are 27 cases at various stages of proceedings, all of which involve Africans. It is correct to say that Kenya didn't refer itself to the Court, the Prosecutor at the time - Mr Ocampo - decided to pursue that case on his own accord. However, while Cote d'Ivoire voluntarily submitted itself to the ICC's jurisdiction (twice), at the time it was not a state party, the investigation was ultimately 'triggered' by the Prosecutor (much like Kenya). The other two cases that don't fit into Mr Annan's (reported) list - Sudan and Libya - were referred to the Court by the Security Council. Their omission is significant as the power of the Security Council to refer states to the ICC (even non-state parties like Sudan and Libya) has increasingly drawn the ire of African states.
- The Editorial goes on to state (with some measure of high-handedness):
'The ICC's African opponents need to be reminded that the Rome Statute is there to end impunity when it comes to the kinds of horrors perpetrated by, say, the Liberian warlord Charles Taylor, or the Lord's Resistance Army – to mention two African cases the ICC has handled.'
Correction: Charles Taylor was tried by the Special Court for Sierra Leone, not the ICC. [In the MG's 'defence', it is not the only paper to make such elisions: a week or so ago the Business Day (another respected South African news outlet) also stated that the ICC had convicted Taylor (the article has since been 'corrected', bizarrely it now credits 'the Special Court for Sierra Leone's sub-office in The Hague' for the conviction).]
Thankfully, the Mataboge article (titled 'Heat is on SA over world court') is more factually accurate, although I would point out that the term 'the world court' is generally used to refer to the International Court of Justice (also based in The Hague, but established to address disputes between states, not try individuals); the two courts are commonly confused.
The problem with the Editorial's errors is that they are symptomatic of a general tendency within the media, and amongst 'analysts', to elide, conflate and oversimplify the issues raised by the current debate. This tendency is supported (if not encouraged) by parties on both sides of the debate who stand to benefit from it (i.e. states hostile to the ICC, as well as civil society).
The conflation of the ICC (which is trying Mr. Kenyatta, and trying to try Mr. al-Bashir) with the Special Court for Sierra Leone (which recently convicted ex-Liberian President Charles Taylor) is a prime example of this. The ICC is a treaty-based body established by the Rome Statute, which has been signed by 122 states - including 34 from Africa. It is permanent body, with jurisdiction over all states parties and in exceptional circumstances over non-states parties as well. The Special Court for Sierra Leone is a so-called 'ad hoc' mechanisms established by way of a special agreement between Sierra Leone and the UN. It only has jurisdiction over crimes committed in that country since 1996. The two institutions are both institutionally and operationally very different, conflating them in the case of Mr. Taylor incorrectly fuels claims of an anti-African bias, while at the same time giving the ICC credit for a conviction it didn't secure (and securing convictions has been a real problem for the court).
When it comes to cases that the ICC is actually pursuing, the conflation (or misrepresentation) of how different situations have come before the Court is similarly problematic. For example, those that have come before the court by way of the Security Council (Libya and Sudan) raise a very different set of issues to the others. They implicate an ongoing debate about the legitimacy of the Security Council - and the undue power its current structure gives to the US, UK, France, China and Russia which African states have consistently (and correctly in my opinion) objected to - and its contamination of the ICC's mission to dispense universal 'international criminal justice'. Those concerns are very different from the issues raised in the Kenya matter, for example, which (at best) relate to the prerogative of a state to decide how best to address atrocities committed within its borders, and how that relates to its (voluntarily assumed) obligations to the ICC. They also differ from valid concerns about how the Prosecutor has used - and in the case of Gaza 'not used' - the power under the Rome Statute to initiate investigations on her/his own accord.
Finally, its worth pointing out that when it comes to African state concerns about international criminal justice, they are not limited to the ICC. In fact, the current debate within the AU was triggered by concerns about the abuse of the principle of universal jurisdiction by European states in respect of 'African personalities' (often along former colonial lines).
The conflation of all of these issue works in favour of protagonist on both sides of the current debate: Some opponents of the ICC are looking to capitalise on concerns about the Security Council and neo-colonial judicial intervention to scupper ongoing trials (such as those in Kenya) that have little or nothing to do with these issues. Similarly, many activists and civil society groups in favour of the ICC present the international criminal justice project as a homogenous, apolitical, universal crusade for justice (for victims), without acknowledging the darker sides of the project's past (such as the failure to address crimes committed during decolonization) or the continued uneven application of its mission in the present. To argue against aspects of the ICC current make-up (such as the Security Council's role), then, is to oppose 'justice' for victims of unspeakable crimes.
The real loser in all this is informed public debate on an issue with very high-stakes, regardless of which side one falls on. While it is perhaps asking too much for a single Editorial to capture the full complexity of the issue, at the very least it should get those aspects of it that it chooses to address right.