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

156 Chapter 6
out of a desire to avoid confrontation with major powers or as a tool of
Western foreign policy. Critics of this view have referred to the fact that the
cases before the Court have not been initiated by the Prosecutor but have
come by way of self referrals by the states in question. Further; that the
Prosecutor is at present analysing other situations in countries outside of
Africa. In addition, observers have pointed out that national legal systems
in Africa are particularly weak, a fact which has allowed the ICC to assert
its jurisdiction under the principle of complementarity. 32
3.2.3 American exceptionalism: The double standard problem
Perhaps the biggest political challenge for the Court at this juncture,
especially in relation to its legitimacy in Africa, is what scholars like Jalloh
has referred to as the ‘double standard’ problem. 33 Domestic legal systems
are founded on – amongst other core principles – the notion of equality
before the law. The principle is not different under international law
applicable between states (at least in theory) and is enshrined in the
Preamble and in article 2(1) of the UN Charter. Article 2(1) affirms the
‘equal rights of men and women and of nations large and small’ and the
‘principle of sovereign equality of all’ states. This principle prohibits
arbitrary distinctions in respect of its application based on states’ or
individuals’ social, wealth, moral or other status. American
exceptionalism, the antithesis of the equality principle, in the ICC-US
relationship, has only served to fortify Africa’s sense of the ICC being a
neo-colonial conspirator rather than an impartial arbiter. 34 American
exceptionalism is the theory that the US occupies a special niche among
the nations of the world in terms of its national credo, historical evolution,
political and religious institutions and unique origins. 35 This concept is
used to justify or excuse the actions of the US in various instances when
they would conventionally be considered to be acting contrary to expected
norms. That American exceptionalism has been a feature of the ICC
relationship may be illustrated in the following aspects of this superpower
policy. 36
(a) ICC conduct in the aftermath of the US ‘War on Terror’
It is now widely accepted by both political and legal analysts that the
incursion by the US into Iraq under the banner of the ‘War on Terror’ was
32
33
34
Jalloh (n 16 above).
Jalloh (n 16 above).
W Schabas ‘United States hostility to the International Criminal Court: It’s all about
35
the Security Council’ (2004) 15 European Journal of International Law 705.
J Thimm ‘American exceptionalism: Conceptual thoughts and empirical evidence’
available at http://www.politikwissenschaft.tu-darmstadt.de/fileadmin/pg/Sektion
36
stagung_IB/Thimm-American_exceptionalism.pdf (accessed 1 June 2010).
Schabas (n 34 above).