Prosecuting International Crimes in Africa - PULP - University of ...

3.2.1 Africa’s colonial legacy
Politics of international criminal justice 155
Africa’s bitter experience with colonialism has proven to be a challenge to
the ICC’s work on the continent. The reality is that African countries are
scarred by the depredations of colonialism. The situation is not helped by
the fact that, during Africa’s encounter with colonialism, international law
was used to further the civilising mission by offering intellectual
justifications thereof. Third World Approaches to International Law
(TWAIL) scholars like Anghie and Chimni argue that it was ‘principally
through colonial expansion that international law achieved one of its
defining characteristics of universality’. 28 TWAIL scholars have
conducted research on how international law was used to justify and
legitimise the suppression of Third World peoples and was therefore
instrumental in the shaping of the power and subordination presently
inherent in the colonial order. According to them, it is expected of former
colonies to be apprehensive of the use of international law, including
international criminal law, by powerful states. Mohamed Mamdani
suggested that the language of law is often subverted by powerful states
with the effect of establishing a ‘new humanitarian order’ in which the
principle of state sovereignty obtains in the larger parts of the world but is
suspended or virtually non-existent in many countries in Africa and the
Middle East. 29 He represents views that capture the sentiments of
contemporary African leadership; that it is a mockery for the big powers
who were at the time of colonialism the greatest perpetrators of abuses
against Africans to style themselves as the custodians of human rights
internationally. 30 Even if one does not subscribe to the aforementioned
views, one cannot help but appreciate the legitimacy challenges that
international criminal law is bound to face in such a historical reality.
3.2.2 Africa’s colonial scars and the ICC’s work
The ICC’s investigations in sub-Saharan Africa have already stirred
concerns over African sovereignty and the long history of foreign
intervention on the continent. Rwandan President Paul Kagame has
portrayed the ICC as a new form of ‘imperialism’ that seeks to ‘undermine
people from poor African countries, and other powerless countries in terms
of economic development and politics’. 31 Other pundits have used the
cases before the Court as an illustration of the prosecutor’s selective focus
on Africa. The view expressed in this respect is that the prosecutor has
limited his investigations to Africa because of geopolitical pressures, either
28 A Anghie and B Chimni ‘Third world approaches to international law and individual
responsibility in conflicts’ (2003) 2 Chinese Journal of International Law 88.
29 M Mamdani ‘Darfur, ICC and the new humanitarian order: How the ICC’s
“responsibility to protect” is being turned into an assertion of neo-colonial domination’
Pambazuka News 396 http://www.pambazuka.org (accessed 1 June 2010).
30 As above.
31 AFP ‘Rwanda’s Kagame says ICC Targeting Poor, African Countries’ 31 July 2008.