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Last week, Part 1 of this three-part blog series
focused on the cynicism of international justice. We
argued that regardless of whether the International
Criminal Court is unfairly targeting Africa or not, the
perceived bias has greatly damaged its reputation in
the region.
The idea that the court is a “neo-colonial tool of dying
imperial powers”, as Kenya’s President Uhuru
Kenyatta recently charged at an African Union
summit, has gained much traction among
intellectual circles and the general populace in Africa.
But for many observers one big question remains:
Why did African leaders voluntarily agree to ratify the
Rome Statute? Why did they agree to cede a
significant amount of their sovereignty to a powerful
international court, granting it the right to prosecute
them?
During the Rome Statute negotiations, concerns over
sovereignty were in fact the most controversial.
States were reluctant to accede to a treaty that
would create a court – described by some as a tour
de force of global justice – that faces virtually no
checks from them.
However, matters in the international arena are not
always cut-and-dry.
A conflation of international power dynamics and
domestic politics has seen 122 countries accede to
the ICC, 34 of them being African.
Several scholars have attempted to explain why
states, including atrocity-doers, would accept the
jurisdiction of the ICC thereby exposing its political
and military leaders to prosecution and possibly
imprisonment.
Zero prosecution
It is argued that Western democracies ratified the
Rome Statute because the expected costs under the
court’s jurisdiction are insignificant.
Several factors make it impossible for the ICC to open
cases in Western countries.
First, these countries have strong judicial institutions
that present a credible alternative to the ICC.
Secondly, three Western countries, the US, the UK
and France (Russia is politically not considered part
of the Western world) dominate the UN Security
Council.
It is argued that Western countries can receive
protection from their powerful allies in the Security
Council, which under Article 16 of the statute can
defer trials.
Thirdly, it is argued that the ICC’s institutional design
is modelled from European legal traditions and this
makes it more likely for the West to accept the
court’s jurisdiction.
The other theories advance explanations on why non-
Western states, many of them weak democracies
with unaccountable institutions, have acceded to the
ICC.
Some of these countries, it is argued, may have
ratified the Rome Statute to access to carry favour
with the West.
By ratifying global conventions and treaties on
human rights as pushed by the West, many poor
states expected to extract financial benefits in the
form of aid.
An argument is also advanced that some states may
have ratified the treaty to simply receive global
praise as a norm abiding countries, even though they
had no intention of complying with the treaty.
It is also said that international and local NGOs may
have played a major role in convincing leaders to
view the ICC as complementary rather than contrary
to their interests.
Russian Roulette
The last theory proposes that some states may use
the ICC to show their genuine commitment to ending
a civil conflict.
By welcoming the ICC to its borders, the state may
be signalling its commitment to peace.
It is argued that states in violent conflicts accept the
threat posed by the ICC’s jurisdictional reach in order
to nudge regime insiders and rivals to come to a
faster solution.
This play is classic Russian Roulette – it not only
exposes the regime rivals to prosecution but also the
regime itself.
A far more fascinating theory says the desire and
potential to threaten and marginalise domestic
political rivals using ICC’s prosecutorial reach, may
have played a crucial role in motivating many states
to accede.
Leaders in unstable countries face the threat of being
violently ousted from power by their political rivals.
To ensure their stay in power, such leaders have had
to either co-opt or repress rebellious elements – both
options are however costly.
The ICC, it is argued, provides a much cheaper
alternative to leaders whose precarious hold onto
power is under constant violent threat.
They trade off the risk of exposing themselves to a
possible ICC prosecution, against the deterrent effect
a potential ICC prosecution has on their political
rivals who may want to violently oust them to power.
The implication of this theory is that states,
especially those with unstable politics, accept the
jurisdiction of the ICC if regime insiders can gain
domestic political mileage against their rivals.
Next Monday, the final blog sequel will try to give a
much closer understanding of why four African states
currently under investigations by the ICC ratified the
statute.
Building on the marginalisation of political rivals’
narrative, it will examine the domestic political
situations of Cote D’Ivoire, the DR Congo, Kenya, and
Uganda at the time of ratification of the Rome
Statute, to see whether there is a relationship
between fixing political rivals and acceding to the
ICC.

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