A CHANCE FOR AFRICA TO COUNTER THE PITFALLS OF INTERNATIONAL CRIMINAL JUSTICE?

While some African states such as The Gambia, South Africa and Sierra Leone have expressed their support for the future adoption of a treaty on crimes against humanity, the majority of states on the continent have yet to adopt or articulate a clear public stance on the treaty and its draft provisions or where they have, it has been largely ambivalent

by Melissa Hendrickse

Since its inception, the project of international criminal justice has been marked by a striking indifference to the long historical record of atrocities perpetrated by the Western world against people of the Global South, and Africa in particular. More recent attempts to construct an ostensibly universal system of criminal justice through the establishment of the International Criminal Court (ICC) have also been marred by the persistence of Western impunity.

A draft treaty on crimes against humanity under discussion at the United Nations could offer an opportunity to address some of the prevailing critiques of the ICC frequently charged by Global South states.

Melissa Hendrickse

A draft treaty on crimes against humanity under discussion within the halls of the United Nations at present could offer an opportunity to address some of the prevailing critiques of the ICC frequently charged by Global South states. However, the voices of the Global South — and particularly African states — have been largely ambivalent or absent in the treaty discussions so far. 

Brief history of crimes against humanity 

Crimes against humanity form one of the so-called core crimes, along with genocide, war crimes and aggression, that today define international criminal law. They comprise criminal acts — such as murder, torture, enslavement, persecution, rape and other forms of sexual violence — when such acts are knowingly committed as part of a widespread or systematic attack on a civilian population. 

Crimes against humanity emerged in the wake of World War II as a response to the horrors of the Holocaust. 

The voices of the Global South and particularly African states have been largely ambivalent or absent in the treaty discussions so far. 

Melissa Hendrickse

Although Western states presided over nearly four prior centuries of atrocities committed against people of the Global South in the name of conquest, empire and colonisation, it was only when comparable violence was unleashed within the borders of Europe itself that these states would come to concern themselves with codifying and universalising the criminalisation of such acts. 

To recall the words of Aime Césaire, Europeans “tolerated […] Nazism before it was inflicted on them, […] they absolved it, shut their eyes to it, legitimised it, because, until then, it had been applied only to non-European peoples.” Neither the colonial conquest of Latin America and genocide of indigenous peoples, nor the enslavement, chattelisation and colonisation of Africans by Europeans in the centuries preceding World War II were sufficient to generate the Western moral outrage that would give rise to the official recognition of crimes against humanity — crimes that “deeply shock the conscience of humanity” — in the mid-20th century. 

International criminal law and the Global South

Three quarters of a century after the end of World War II, international criminal law and the prohibition of crimes against humanity have acquired widespread acceptance and application. For example, the Rome Statute of the International Criminal Court, the world’s “court of last resort” established in 1998, has received broad ratification by states on all continents.

Even if they are not member states to the ICC, most have accepted the general notions of international criminal law, including the principal rules on crimes against humanity. States of the Global South are now, for the most part, willing participants in the project of international criminal justice. In fact, rather than being passive recipients of the legal edifices of international criminal justice, these states have played an active role in contesting and shaping this very architecture. 

It was the galvanisation of the Third World bloc, including many newly independent African states, in the UN General Assembly during the 1950s and 1960s that led to the designation of apartheid as a crime against humanity in the 1973 Apartheid Convention, introducing universal jurisdiction over the crime of apartheid and individual criminal responsibility for those who commit the crime of apartheid as well as those who directly abet, encourage or cooperate in its commission. 

This was in spite of some Western states’ opposition in the General Assembly and their unwavering support and supply of diplomatic cover and arms to Pretoria, the seat of South Africa’s apartheid regime, well into the 1980s. 

African states were also among the most fervent supporters of the establishment of an international criminal court and some of the earliest signatories to the Rome Statute.

As a representative of the Organisation of African Unity expressed during the 1998 diplomatic conference in Rome, “Africa had a particular interest in the establishment of the court, since its peoples had been the victims of large-scale violations of human rights over the centuries: slavery, wars of colonial conquest and continued acts of war and violence, even in the post-colonial era”. 

More recently, in the wake of Israel’s unrelenting military onslaught on Gaza (endorsed and financed by its Western allies) and its prolonged system of apartheid against Palestinians, the Global South has sought to assume the mantle of ostensibly defending a truly universal application of international law and justice. 

No strangers to colonial violence, occupation and racial subordination, states of the Global South have sought to operationalise the blunt instruments of international criminal law against its original authors, who more often than not enjoy impunity for the crimes they have visited upon the rest of the world.

In December last year, South Africa instituted a case against Israel before the International Court of Justice (ICJ) alleging that the Israeli state is violating its obligations under the 1948 Genocide Convention as a result of its ongoing military onslaught and siege on Palestinians in Gaza.

This was followed by Nicaragua’s initiation of proceedings against Germany, asserting that the German state had not only failed to comply with its legal duty to prevent genocide in Gaza but had contributed to its commission through the provision of arms and assistance to Israel — violating both the Genocide Convention and international humanitarian law.

In February this year, during hearings before the ICJ concerning the legality of Israel’s prolonged occupation of Palestinian land since at least 1967, many states of the Global South took the floor to argue that Israel’s occupation and the system of apartheid it imposes on Palestinians constitute grave violations of international law. 

Among those states was Namibia, which had itself been the subject of a series of ICJ cases some 60 years earlier. One of these cases had also been initiated by African states — Liberia and Ethiopia — to contest the continued application of the League of Nations’ colonial mandate system over Namibia (then South West Africa) and the system of apartheid that the mandatory power, then Union of South Africa, was imposing in Namibia.

During Namibia’s oral intervention in the February hearings on the legality of Israel’s occupation, Minister of Justice Yvonne Dausab recalled that Namibia “has known only too well the pain and suffering of occupation, colonialism, systematic discrimination, apartheid, and their entrenched consequences”. 

“It is because of this history that Namibia considers it a moral duty and sacred responsibility to appear before this court on the question of the indefensible occupation of Palestine by Israel.” 

Ubiquity of Western double standards

Notwithstanding these interventions by states of the Global South, international criminal law has not entirely transcended its uneven origins and continues to be haunted by the spectre of what some call selectivity or double standards and others, blatant Western exceptionalism. As legal scholar Asad Kiyani observes, “ICL [international criminal law] promises an idealisation of Western liberal criminal law fused with a utopian ethos but is often bogged down in the politics of unequal enforcement that seem to characterise international law.” 

Much of the blame for this is laid at the feet of the ICC, which has “focused its prosecutorial lens” almost exclusively on Africa since it began operating in 2002. Out of the 54 individuals indicted by the ICC to date, 47 are African — giving rise to the charge by the continent’s leaders that the ICC is a colonial white person’s court preoccupied with “hunting Africans”. 

Although many of these claims have been rebutted as self-serving machinations by African elites seeking to evade accountability, the fact remains that no Western leader or military personnel has been investigated or charged by the ICC since it opened its doors 22 years ago. 

This is certainly not for a lack of international crimes committed by Western leaders and military personnel but rather purportedly due to what the Office of the Prosecutor of the ICC has termed “viability and budgetary constraints” affecting the court. 

In 2020, these constraints led the Office of the Prosecutor to decide not to investigate war crimes by the United Kingdom’s forces in Iraq (despite the prosecutor’s own finding that such crimes had in fact been committed), and in 2021 to “deprioritise” an investigation into war crimes committed by US forces in Afghanistan. 

But, as Amnesty International has noted, “just six months later, the prosecutor launched his officer’s largest ever investigation in Ukraine”, which has since produced a total of four arrest warrants in a record time of two years. 

While these arrest warrants are welcome, it is notable that the prosecutor’s ongoing investigation into international crimes committed in Palestine, initiated in 2021, continues to lag without any tangible progress and certainly no arrest warrants to date — even as Israel’s onslaught on Gaza continues unabated. 

A new draft convention on crimes against humanity

The draft articles on the prevention and punishment of crimes against humanity were drafted by the International Law Commission (ILC) between 2013 and 2019 and then transmitted to the UN General Assembly’s Sixth Committee, the UN’s principal forum for the consideration of legal questions.

After a period of political stalemate in the Sixth Committee, discussions on the draft articles were revived in late 2022 and state delegates met in New York in April last year to “exchange substantive views” on all aspects of the draft articles. The Sixth Committee gathered in New York once more this April to continue discussing the draft articles before proceeding to decide in October on whether to move discussions into formal treaty negotiations.

The draft articles are significant in that they propose to close a gap in the architecture of international criminal law. 

Unlike other crimes under international law such as genocide, apartheid, torture and enforced disappearance, there is no specialised international treaty on crimes against humanity. 

Another significant feature of the draft articles is the inclusion of the obligation not only to punish, but also to prevent, crimes against humanity (akin to the duty to prevent under the Genocide Convention which has been a key component of South Africa’s application to the ICJ).

Moreover, unlike the Rome Statute of the ICC, which contemplates the cooperation of states with the court for purposes of investigating and prosecuting international crimes, the draft articles concern horizontal cooperation between states for purposes of prosecutions at the national level. 

This is significant because it allows states to “do it themselves”, rather than rely on investigations and prosecutions by an international tribunal like the ICC, which has shown itself reluctant to turn its prosecutorial eye to crimes committed by Western powers. 

The draft articles present an opportunity for states of the Global South, and Africa in particular, to continue their historical legacy of helping to shape the architecture of international criminal law and to challenge the persistence of Western impunity. 

While some African states such as The Gambia, South Africa and Sierra Leone have expressed their support for the future adoption of a treaty on crimes against humanity, the majority of states on the continent have yet to adopt or articulate a clear public stance on the treaty and its draft provisions or where they have, it has been largely ambivalent. 

Morocco was the only African state to have submitted formal written comments and observations on the draft articles by the December 2023 deadline set by the UN General Assembly. 

While African states continue to seek justice in forums such as the ICJ and to highlight Western double standards on the world stage, they must not neglect the ongoing discussions on the draft articles on crimes against humanity. As the current moment has reminded us, it cannot be left only to the West to act on, much less prevent, crimes against humanity. 

The oped first ran in South Africa’s Mail and Guardian.

Melissa Hendrickse is a legal adviser on racial justice and international criminal law at Amnesty International.