Whose justice? The ICC ‘Africa problem’
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| Author | Lucrecia García Iommi |
| DOI | 10.1177/0047117819842294 |
| Subject Matter | Articles |
https://doi.org/10.1177/0047117819842294
International Relations
2020, Vol. 34(1) 105 –129
© The Author(s) 2019
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DOI: 10.1177/0047117819842294
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Whose justice? The ICC
‘Africa problem’
Lucrecia García Iommi
Fairfield University
Abstract
This article explores an understudied dimension of the International Criminal Court ‘Africa
Problem’ – low contestedness. In a world of enduring cultural differences, norm contestation is
inevitable. Yet, regular and institutionalized access to meaningful contestation for stakeholders
(contestedness) can turn contestation into consensus instead of conflict. African stakeholders did
not enjoy such access in the negotiation, diffusion and, most importantly, in the implementation
of the Rome Statute. This helps explain the current normative crisis, which we reconstruct as a
series of contestation moves. It also informs the path forward to resolve the crisis.
Keywords
Africa, Antje Wiener, contestation, contestedness, ICC, norms
In the twenty years since the adoption of the Rome Statute for an International Criminal
Court (ICC), the Court survived great power pressure1 and controversies surrounding its
purported lack of impartiality.2 However, in recent years, it has become common to
speak of the ICC ‘Africa Problem’.
The Kenyatta and Ruto cases and the indictment of Omar al-Bashir in 2009 initiated
an era of increasingly conflictive relations between some African states and the ICC.
Over the past two years, Gambia, South Africa, Namibia, Kenya and Burundi announced
plans to withdraw from the ICC.3 Burundi exited in 2017. These countries justified their
decision on the basis of what they considered was unfair behaviour on the part of the
Court. They argued that the ICC had targeted Africa in its investigations and failed to
understand regional issues. Several other African countries echoed these concerns,
engaging in non-cooperation and anti-ICC rhetoric. While the challenge to the Court in
Africa is by no means universal,4 it turned the African Union (AU) into a platform to
Corresponding author:
Lucrecia García Iommi, Politics Department, Fairfield University, 302 Donnarumma Hall, 1073 North
Benson Road, Fairfield, CT 06824, USA.
Email: lgarciaiommi@fairfield.edu
842294IRE0010.1177/0047117819842294International RelationsGarcía Iommi
research-article2019
Article
106 International Relations 34(1)
articulate an unsuccessful call for reform. These developments are troubling for those
who think the Court is central to international justice governance.
While I acknowledge that African leaders’ self-interested behaviour contributes to the
current crisis, I maintain that the ICC ‘Africa Problem’ is also a normative crisis.
Normative crises emerge when norms no longer resonate with actors and policies, deny-
ing treaties a stabilizing effect on norms.5 In this case, the implementation of the univer-
sal criminal accountability norm is in tension with other norms. This anti-impunity norm,
which pro ICC actors prioritize, is in tension with other norms of greater importance to
African states, namely peace, sovereignty, anti-colonialism (i.e. a rejection of perceived
Western interference in African nations) and pan-African solidarity.6
To understand the origins of this normative crisis, I utilize Antje Wiener’s Theory of
Contestation. Wiener argues that the meaning of norms only becomes apparent in con-
text (meaning-in-use). In a world of enduring cultural differences, contestation over
norms is thus inevitable.7 Wiener relies on a ‘thin’ definition of culture, which entails
‘the sum of background experiences gathered through interactions over time and
expressed through the cultural validation of norms in day-to-day life’8. She does not
ascribe specific cultural traits and habits to communities. Yet, different background
experiences lead to different interpretations of treaties’ provisions and to contestation.
While contestation can undermine consensus over the validity of norms, it can also
strengthen it. Wiener explains that regular and institutionalized access to meaningful
contestation for stakeholders (contestedness) is a necessary part of building international
normative consensus among diverse actors in any sector of global governance. Without
it, norm validity is unattainable because clashing interpretations will remain unresolved
and engender conflict.
I argue that low contestedness contributes to the ICC ‘Africa Problem’. Pro ICC
actors dominated the negotiation and diffusion of the Statute. More importantly, they
dominated its implementation, generally dismissing African states’ concerns. From their
perspective, prioritizing any norm over the anti-impunity norm is misguided at best. At
worse, it ‘waters down’ the norm. Pro ICC actors argue that those who prioritize other
norms fail to comprehend the importance of the anti-impunity norm and its role in
advancing justice and peace. Along the way, pro ICC actors delegitimized contestation to
the detriment of the Court’s legitimacy.
In the absence of real opportunities for African stakeholders9 to meaningfully contest
the norms embodied in the Rome Statute in a regular and institutionalized manner (low
contestedness), the inevitable normative clashes that occur among diverse stakeholders
have led to conflict instead of consensus. Specifically, the interactions between African
states and pro ICC actors have taken the form of cross-purpose normative encounters.
These encounters involve clashing perceptions of legitimate behaviour that arise from
distinct validity claims. African states favoured privileging one set of fundamental
norms, namely sovereignty, peace, anti-colonialism and pan-African solidarity in the
interpretation and implementation of Article 27 of the Rome Statute Irrelevance of
Official Capacity. In contrast, for pro ICC actors the anti-impunity norm remained the
main reference point. Yet, disregarding African leaders’ normative arguments and reform
proposals as insincere risks exacerbating an already serious problem of misrecognition,10
breeding further conflict.
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