This weekend, officials from 34 African nations are convening in Addis Ababa to discuss whether or not to withdraw from the International Criminal Court (ICC). The problem with the Hague-based court, according to African Union (AU) Chairperson Hailemariam Desalegn, is that it is "race-hunting" Africans.
It is true that the 32 people charged by the court to date are all from the African continent. But the problem this reflects is not racism by the ICC chief prosecutor. (Currently, the prosecutor is Fatou Bensouda of The Gambia who has faced her fair share of criticism from fellow Africans for the composition of the court's caseload.) Rather, there is a more systemic driver behind the court's docket: the debilitated state of the judiciary in so many African nations.
The ICC was created by states, including many in Africa, which wanted to ensure that, when the worst crimes in the world -- genocide, crimes against humanity, war crimes -- were committed, there would be a backstop against impunity. The vision was for a court of last resort, ready to step in when states failed to prosecute those responsible for a future Holocaust, Rwanda, or Srebrenica. This idea was enshrined in the ICC's statute under the legal principle of complementarity, meaning that the court can only prosecute when states themselves are unable or unwilling to do so.
In other words, in an ideal world, the ICC wouldn't exist. States would handle their own cases fully and fairly. As former U.N. Secretary General Kofi Annan said earlier this week, "If African victims can get justice at home, and we have credible courts and they do take action, there'll be no need for [the] ICC."
However, this remains only wishful thinking. And so, whether African leaders want to admit it or not, a court of last resort is exactly the part the ICC is playing.
Consider, as an example, the ongoing trial of Kenyan Deputy President William Ruto for his alleged role in the mass violence that followed Kenya's 2007 election. Kenya was given every opportunity to prosecute those responsible for the violence that left over 1,000 dead and an estimated 600,000 displaced. A 2008 commission, headed by Kenyan Appeals Court Judge Philip Waki, recommended that the government establish a special tribunal to handle the most important cases. The so-called Waki Report also advised that, if a special tribunal was not created, the situation should be referred to the ICC.
After initially accepting the report's recommendation, the Kenyan government stalled -- and then stalled some more -- before eventually rejecting the establishment of a tribunal. Thus, it was only in the face of the Kenyan government's unwillingness to seek domestic accountability for the violence against its own citizens that the ICC finally stepped in. (In addition to Ruto, the court is set to try President Uhuru Kenyatta in November; on Thursday, Kenyatta requested that the trial be held via video link.)