Africa and the backlash against international courts

Supporters of the International Criminal Court (ICC) have regained some optimism about its African future. Recent investigations outside the continent may already have begun to deflect allegations that it has 'targeted' Africans. In late 2016 Burundi, the Gambia and even South Africa had all begun the process of withdrawing. In the event, however, only Burundi did. South Africa's withdrawal was annulled by the courts on procedural grounds. Whilst the Gambian withdrawal was itself withdrawn when President Yahya Jammeh was ousted from power in January 2017, when confronted with imminent Economic Community of West African States (ECOWAS) intervention. Pierre Nkurunziza, meanwhile - who as President ordered the Burundian exit - died suddenly in June from a heart attack (or perhaps COVID-19). Even the new government of Sudan - desperate to normalise relations with the West, but still not a party to the Court - is now negotiating with it with a view to (finally) organising some sort of trial somewhere for ousted former President Omar Al-Bashir.

It is not all good news however for the ICC. The wider geo-political context has turned hostile, and other international courts - from Europe to Latin America - are under threat. The Trump administration has sanctioned ICC officials; President Duterte has withdrawn the Philippines, threatening to arrest ICC prosecutors; whilst a recent complaint filed by Uighur groups is likely to antagonise Beijing. In Africa there is as yet little prospect of a Burundian return. And the hamstrung Court has still only tried opponents of sitting governments, those abandoned by their state sponsors, or those deposed by Western-backed military intervention. Criticism, meanwhile, has not just come from states seeking to withdraw. In 2017 the ICC's critics succeeded in persuading a majority of states on the African Union (AU) Assembly to endorse a resolution lauding Burundi, South Africa and the Gambia as 'pioneer implementers of the [African] withdrawal strategy'. Uganda and Namibia had declared they would soon follow suit. Critics including Kenya's President Kenyatta had achieved this by mobilising grievances with a long history in African international relations.

The study of resistance to international courts in Africa is still in its infancy. The best existing efforts to explain its successes and failures emphasise the importance of individual state interests, civil society pressures, and the effects of different institutional mechanisms. They pay far less attention to persuasion and rhetorical justification. In our new book we argue that this ability to legitimate backlash in the eyes of other states is central to explaining its success. We also range well beyond the totemic confrontations with the ICC already so amply covered in the literature. (In August 2018, we calculated, the ICC had obtained one conviction for every 14,100 academic articles written about it – 8000% of the coverage devoted to the ECOWAS Community Court of Justice, Africa's busiest human rights court.) Our case studies deal with all the continent's most active institutions, with chapters dedicated to East, West and Southern Africa.

When existing accounts do touch on the ideas legitimating backlash, they stress the importance of sovereignty to post-colonial states. This is a central theme in African politics, but it also obscures a great deal. Our analysis of the immediate post-Cold War period shows how African states pre-empted donor pressures by endorsing all manner of international institutions and instruments that allowed them to appear as champions of the international rule of law. Some of these shallow commitments then produced unexpected effects. No world region, for example, has criminalised the coup d'état to anything like the same extent, or contemplated imposing such severe sanctions against supposedly sovereign states (at least when their leaders violate the anti-coup norm). After the 2008 coup in Mauritania, the AU Peace and Security Council - rather breathtakingly - declared 'null and void all measures of constitutional, institutional and legislative nature taken by the military authorities'. These principles have of course been applied selectively, but ECOWAS' recent and highly contentious sanctions in Mali are a reminder of their continued importance. As Eki Omorogbe puts it, African states operate here as a 'club of incumbents', not to defend each other's sovereignty. Our book illustrates how many African states have acted the same way when dealing with the ICC and ECOWAS Community Court. Sovereignty has been suddenly forgotten whenever an international court can be used to justify the criminalising of political opponents or a predecessor regime.

The contrast in attitudes towards the Abuja and Hague courts is nonetheless instructive. The endemic instrumentalisation of, and non-compliance with, ECOWAS Court judgments has proved largely uncontroversial beyond a small circle of (mostly Nigerian) academics, lawyers and human activists. The West African judges have continued to develop an impressive regional jurisprudence that national courts (and governments) routinely ignore. By contrast, leaders' efforts to use the ICC for their own purposes have been loudly condemned by an ever growing chorus of critics. In 2011, for example, Laurent Gbagbo was flown to The Hague after having been deposed as President of Côte d'Ivoire by French-led military intervention. Soon, however, new President Alassane Ouattara found that deploying the Court against the Gbagbo clan was proving unpopular. And as the anthropologist Mike McGovern has described, criticisms of Gbagbo's arrest 'most certainly' did not 'just emanate from sycophants and apologists of African autocrats … while Laurent Gbagbo has many partisan supporters ... those who criticize his ICC indictment go beyond this group to include a far broader pool of francophone intellectuals. Many francophone Africans talk about Gbagbo as a modern-day Lumumba, a resistance hero who has been punished for speaking truth to neo-colonial power'.

Using work by Ali Mazrui and Thomas Kwasi Tieku we argue that these contrasting attitudes can be explained by the power of sovereign equality in African international relations. In the years immediately preceding Gbagbo's arrest, African states suddenly turned against a Court that they had done much to create in the 1990s. The trigger for this apparent volte face was the ICC's 2008 indictment of Omar Al-Bashir, as part of an investigation into crimes in Darfur ordered by the UN Security Council - despite the fact that neither Sudan nor three of the five permanent members of the Security Council were themselves party to the Court. This decision was only possible because of a formal inequality between Africa the rest of the world. African states' parties were subject to the whims of external powers but could not themselves order investigations into others. Such inequalities are easy to mobilise against in a continent that was the last to be granted the right to self-government. They are toxic within the African 'cult of participation in world affairs' that, as Mazrui argued, was born with decolonisation. The result is that even where autocratic leaders have been motivated by little more than desires for self-preservation, they have nonetheless been able to legitimate their actions with arguments that possess real power and historic weight.

Other international courts - which threaten sovereignty, but not sovereign equality - have not proved so controversial. Where co-ordinated backlash has been successful elsewhere, it has been in response to rulings that could be construed as threats to region-specific norms. The most vivid example of this is the removal of the Southern African Development Community [SADC] Tribunal's human rights jurisdiction. There Zimbabwe managed to persuade other Southern African states to effectively shut down the Tribunal after one of its first ever cases (heard in 2008). They were able to do so, we suggest, not primarily because of helpful SADC rules or a lack of civil society pressure. The key point, rather, was that the case had been brought (and won) by a group of white farmers seeking compensation for expropriated farmland. This decision thus struck directly at SADC's self-presentation as the continuation of the regional liberation struggle waged by the Front Lines States against settler colonialism and apartheid.

Narrower sovereignty concerns were more prominent in the rather less successful Kenyan-led campaign against the East African Court of Justice in 2006, which we also analyse in our book. There the decision eliciting backlash threatened to interfere with the fiercely complicated Kenyan politics of patronage. Instead of 'killing' the Court, however, the Kibaki regime succeeded only in persuading Tanzania and Uganda to agree to more control over judicial appointments, restrictions on private access, and the creation of an appellate division to act as a kind of safety valve. It could find no argument as powerful as Zimbabwe's to justify its proposals. The other East African Community (EAC) states, mindful of the catastrophic collapse of the first EAC in 1977, only agreed to compromise in order to protect their organisation's future. Once again, the justificatory context of international relations was central to explaining the outcome of efforts to limit of the power of an international court.

In conclusion, backlash against international courts is global in scope. The WTO appellate body remains suspended, Venezuela's exit from the Inter-American human rights system has catalysed  resistance elsewhere in the region, and the United Kingdom (even before Brexit) had successfully co-ordinated a push for greater national control over human rights in the Council of Europe. The African dimensions of this shift should not, however, be equated with any global slide into authoritarianism or emerging nationalist world order. Backlash has only ever been successfully justified with more than just sovereignty. African states remain, moreover, strong supporters of international law, even as they criticise particular international courts. Radical voices within these states, who hope to turn resistance into revolution, have made little headway. Even they have had to acknowledge the power of the sovereign equality ideal in African international relations - a power only explicable in terms of the continent's distinctive experience of late decolonisation and apartheid rule.

Photo 'International Criminal Court The Hague' by Roel Wijnants

License: https://creativecommons.org/licenses/by-nc/2.0/legalcode