Sacrificing nuance, sensitivity and specificity for the sake of a ‘catchy’ title is not a neutral choice, but reiterates dominant narratives and is violently short sighted.
Scrolling through my social media feed one evening last week, I came across an announcement advertising an event at the T.M.C. Asser Instituut in The Hague titled “Can Africa prosecute international crimes? – The DRC Example”. Sponsored by the Asser Instituut, the Coalition for the International Criminal Court (CICC) and the Grotius Centre for International Legal Studies of Leiden University, in cooperation with Open Society Foundations, the event was part of a popular series of Supranational Criminal Law (SCL) lectures organized by the Asser Instituut. The series has run for years, is generally well attended, and fulfils an important social and intellectual function in The Hague by bringing together students and practitioners of international criminal law. The lecture last week was a discussion on the prosecution of international crimes in the Democratic Republic of the Congo with four guest speakers from the DRC. While I am sure it was an interesting session (I could not make it), I would like to dwell on the choice of title and framing for this event: “Can Africa prosecute international crimes?”
The lecture was advertised all over social media and through e-mail newsletters, and I encountered it often in the days and weeks leading up to the event. The choice of title was striking to me, because I could not imagine a similar question being asked of ‘Europe’, i.e. “Can Europe prosecute international crimes?” I came to understand that the title had been chosen as an effective way to grab the audience’s interest. It was a communication device, in a way, used here merely to provoke interest and generate discussion. The event was a discussion on efforts to prosecute international crimes in the Democratic Republic of the Congo (DRC), and the question ‘Can Africa prosecute international crimes’, in my understanding, was considered an effective way of inserting this lecture into the larger debate around “African solutions to African problems” – an often used, and I suggest, often misunderstood, slogan used by certain representatives of African States and the African Union. I find the choice of title here unfortunate, and a cynical sacrifice of specificity and nuance in search of a catchy title.
How is it that our current reality makes this title appear acceptable and the premise of the event, posing this question to a continent of 54 countries and at least as many jurisdictions by an audience in The Hague, seem perfectly reasonable? Can one, in all seriousness, imagine a similar two-hour event held in an African country, titled “Can Europe prosecute international crimes?” that would not be met with eye rolling and chagrin at the very thought that ‘Europe’ should be addressed as a homogenous entity, not to mention the presumed superiority that underlies such a challenge to positively demonstrate technocratic and judicial ability?
The title of the lecture could easily have been framed differently, to read for instance: “Prosecuting International Crimes: The DRC Experience” or even, “Have African countries prosecuted international crimes?” The answer to the latter question, incidentally, would be ‘yes’, as demonstrated by the 2016 prosecution of Hissène Habré before the Extraordinary African Chambers in Senegal. Had the title been a research question, it would have been poorly formulated as it allows for a simply yes or no answer. In addition, it strikes me as indicative of a particular kind of evaluative paternalism that has come to operate within the discursive field of international criminal justice. An audience gathered in Europe to ask of Africa whether it can…Do what exactly? Measure up? Meet the standard? Contained within the question, lies an implicit presumption that the conclusion of the discussion could be ‘no’. This is not provocative. It is cynical and offensive.
My point here is simple. Words matter. I worked at the Asser Instituut for years, participated in organizing the weekly lectures and I know several of the organizers well. My argument here is not personal, it is systemic. Words matter. The way influential, well-endowed institutions and their staff with the power to frame and organize events choose and weigh their words matters – particularly in the field of law, which takes careful interpretation and specific reasoning as its central method. The question “Can Africa…” is not a neutral communication technique. It replicates a particular history of evaluating and measuring ‘Africa’ against externally developed and imposed standards; standards of ‘good governance’, of ‘accountability’ and ‘rule of law’. Positioning the title as merely ‘catchy’ and circulating it on social media for publicity, works to depoliticize a field that is inherently political – it is about a reality of cycles of violence, a reality of inequality, a reality of a system of international cooperation and justice that does not deliver on its promise or potential.
The title of the event operates against a particular backdrop. Relations between the International Criminal Court (ICC) and the African Union (AU) have been tense in recent years, with relations reaching a historical low point in October 2016 when three states announced their withdrawals from the court. Many African states were initially staunch supporters of the International Criminal Court (ICC) and what it represented in a broader effort to address and prosecute perpetrators of international crimes, but became disillusioned when, after 15 years of existence, only Africans had been prosecuted before the court. In recent years, several African states and the AU assembly have become increasingly critical of the perceived bias of the ICC towards the continent, with the arrest warrants against President Omar Al-Bashir of Sudan, but especially the indictments of President Kenyatta and Vice-President Ruto adding serious fuel to the fire. Furthermore, it has been argued that in pursuing narrow, individualized conceptions of criminality and culpability, the Rome Statute system cannot address the systemic issues that contribute to cycles of instability and violent conflict on the continent, and that the threat of criminal prosecutions may hamper peace negotiations.
The response “African solutions to African problems” then, can be read as a rejection of an international system ostensibly rooted in solidarity and a desire to cooperate, but which has also replicated historical patterns which cast Europe as the site of expertise and Africa as a collective of failed states – the failing student always being called on to demonstrate its knowledge and ability and constantly falling short. The AU has repeatedly submitted requests to the UN Security Council to discuss its concerns in relation to the practices and indictments of the ICC, and its declarations of 2013, 2014, 2015, 2016 and 2017 reflect a growing frustration with the UNSC’s unwillingness or inability to discuss these concerns. For instance, a 2016 meeting between the AU Open Ended Ministerial Committee (established by the AU to consult with the UNSC on matters relating to ICC indictments) was so poorly attended by Security Council representatives that the AU delegation concluded that no substantive engagement was possible. The AU then decided to suspend further engagement with the Security Council “as no tangible result will come out of the exercise due to the recalcitrant position of some members of the UNSC.” (see: Assembly of the Union, Twenty-Eighth Ordinary Session, 30-31 January 2017, Decisions, Declarations, Resolution and Motion.)
The Asser Instituut on its website prides itself on being an ‘internationally renowned centre of expertise in the fields of public international law, private international law and European law’ and claims that it is ‘the natural place for critical and constructive reflection on international and European legal developments’. Words matter. Sacrificing nuance, sensitivity and specificity for the sake of publicity is not a neutral choice, but reiterates dominant narratives and is violently short sighted. At minimum, against this heated political background, it represents precisely the opposite of critical and constructive reflection. It is indicative of larger problems in this field if those who wished to discuss the prosecution of international crimes last Wednesday evening in The Hague, presumably out of a commitment to strengthening international legal structures, can so glibly perpetuate injustice and shrug off deeper concerns and questions.
For those who are interested in reading more about the history of hope and disillusionment in ICC-AU relations, their origins and development, and to understand why well-meaning individuals espousing a liberal legalism must think about the histories of injustice that may be replicated through the tweeting of catchy phrases and hashtags, Kamari Maxine Clarke’s forthcoming book Affective Justice (2018, Duke University Press) will be a must-read.
Sarah-Jane Koulen is a third year Ph.D. candidate in Cultural Anthropology at Princeton University and studies the development and practice of international criminal law.
This article was modified/edited on 19 June 2016.
I think this is an excellent post, and your central points are very well taken. Still, I wish you had responded to the organisers’ response that it is quite common for both the AU and various African civil-society organisations to refer to “African” approaches to international criminal justice (two links below), thereby making (to some extent, at least) the same mistakes you so rightly diagnose in the Asser panel. I would be very curious to hear your thoughts on what it means for African organisations to elide the important differences between the many states in Africa by referring to “African” ICL.
Dear Kevin, thanks so much for your comments. My issue is not so much with the use of the word ‘African’ or ‘Africa’, which in many contexts is simply a statement of fact or a geographical category For instance, the Policy Brief you link to above discusses international criminal justice in Africa, and the AU speaks on behalf of its member states that are in Africa. I mainly took issue with the use of the question in the title, asking “Can Africa Prosecute International Crimes?”, and with the evaluation and challenge it posits. Not only did I find it unhelpful given the very real tensions and sensitivities that exist between international justice institutions in The Hague and elsewhere and the African Union, it has also already been answered, given the 2016 prosecution of Habré.