European Court for Africans? Challenging the Narrative of Aid Dependency and African Commitment to...

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*Draft – Please do not cite or circulate without author’s permission

‘European Court for Africans?: Challenging the Narrative of Aid Dependency and

African Commitment to the ICC’

Kevin Coffey

University College Dublin

[email protected]

November 2014

The backlash against the International Criminal Court (ICC) by the African Union (AU) has

generated increased speculation over the reasons more than two-thirds of Sub-Saharan

African governments decided to integrate their jurisdictions into the Rome Statute system. A

narrative that has gained growing traction in light of AU’s hostility to the Hague-based Court

is that African states committed to the Court in order to satisfy donor demands. The European

Union is the central player to this narrative. As the primary financial contributor to the ICC as

well as the largest distributor of aid to Africa, it is viewed as having twisted the arms of weak

and economically dependent African states to sign on to the Rome Statute (Chuter 2012;

Kimenya 2013; New African 2012; Rosenthal 2004). In November 2014, the former UN

Human Rights Chief Navi Pillay, strengthened these assumptions by referring to the use of

EU’s material resources to universalize the Court’s membership. In a New York Times op-ed

piece, she wrote that the EU “is a staunch support of the I.C.C. It uses its trade and

development deals to encourage other countries to join, and it has withdrawn aid from

countries from countries refusing to cooperate with the Court” (Pillay 2014). The purpose of

this paper is to investigate whether these claims are valid in the African context. Namely, has

the EU induced African states to adopt ICC legal instruments through either promising

increased aid, or threats to withhold it?

The findings from this paper contradict this narrative. Using a mixed methods approach, there

is little evidence pointing to the EU foisting the ICC onto African states. Aid conditionality

has not been included in the EU’s policy framework to universalize the Court’s membership.

Instead the EU has adopted soft policy instruments such as political dialogues, demarches and

technical assistance to persuade African government to deepen their integration with the

Rome Statute system. Furthermore, African positions during negotiations to establish the ICC

do not sufficiently align with their principle European donors, indicating that the enthusiasm

for the creation of the ICC among African governments was independent of aid

considerations. In addition, the association between African dependency on EU aid and legal

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commitments to the ICC is not positive according to quantitative tests. Finally and consistent

with the rest of the data, interview respondents from Africa and Europe downplay the

importance of aid towards African states committing to the ICC. Instead, the vast majority

highlight the importance of regional factors and national factors.

The paper is structured in four parts and is for the most part, chronologically ordered. Section

4.1 investigates the evolution of the EU’s strategy to promote international criminal justice in

third-party countries. More specifically, it focuses on the institutional framework governing

EU-African relations on the issue of the ICC with an eye towards the role of aid. Section 4.2

examines the degree of preference alignment between EU donors and African recipients on

key issues discussed at the Rome Conference in 1998. Section 4.3 interprets the results from

a large-N analysis testing the effect of aid (along with control variables) on the four

indicators of ICC commitment. Finally, section 4.4 triangulates the findings from the

previous sections through interviews with relevant political stakeholders.

Section 4.1: The EU framework to universalize the ICC

The following section provides an overview and evaluation of the legal and political

framework governing EU relations with African states on this issue; an overview which is

presented in Figure 4.1. In order to draw out and analyse the relevance of the causal

mechanisms, it is necessary to detail the context and the conditions under which the EU and

Africa have engaged on this issue. The optimal method for doing so is to trace the

development of EU policies on the ICC. From this vantage point, one can answer key

questions such as what type of pressure has the EU employed in its attempt to universalize

the Court’s membership? If aid has been employed, in what manner has it been? And if so,

when? The conclusions drawn are informed by examination of the official European Council

Common Positions and Action Plans, and the text of the Revised Coutonou Partnership

Agreement (See Figure 4.1 for more information). I corroborate the interpretation of these

texts through interviews with EU officials and examination of secondary sources.

Since the discussions to create the ICC began in earnest, the EU has demonstrated its

commitment to universalizing international criminal justice. In keeping with its objective of

establishing an international order based on multilateral effectiveness, the EU has expended

financial and diplomatic capital to the ICC cause, or more broadly, the fight to end impunity

for egregious violation of human rights (Antoniadis & Bekou 2008: 1-3). As stated by the

former EU Commissioner for External Relations, Chris Patten: “The EU had been a strong

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supporter of the establishment of the ICC; we had worked for years to achieve its creation;

we helped to fund organizations that themselves acted as advocates for the Court” (Patten

2006: 309). As early as 1995, the European Commission through the use of the European

Instrument for Democracy and Human Rights (EIDHR) provided generous grants to

empower rule-of-law civil society groups in Africa to sensitize and provide technical

assistance to national governments on the issue of the ICC (Glasius 2005). During the Rome

Conference, these NGOs operating within the Coalition for the International Criminal Court

(CICC) – a network of NGOs committed to an effective and just ICC – were instrumental in

ensuring under-resourced African delegations stayed apace amid negotiations of such

magnitude and complexity (Interview British Participant at the Rome Conference; Interview

No Peace Without Justice official). In terms of funding civil society organizations beyond the

Rome Conference, the European Commission has provided "€17 million to global ratification

campaigns undertaken by civil society coalitions such as the Coalition for the International

Criminal Court and the Parliamentarians for Global Action (PGA)" (General Secretariat for

the Council 2008: 16).

Despite the EU financing programmes and activities to generate support for the Court, the

European Council of Ministers did not take concrete measures to mainstream international

criminal justice into the EU’s external relations framework until 2001. Unlike the

Organization for African Unity, the EU did not enter the Rome Conference with common set

of guidelines to inform their positions during the negotiations even though the majority of EU

states were members of the Like-Minded Group; a caucus that cut across regional lines

advocating for a strong, independent ICC. France, in particular acted as an impediment to a

European common position. As a permanent member of the UN Security Council with

significant overseas deployments, the French delegation sought to minimize the risk of its

nationals being brought before the Court, and therefore, took positions to retain sovereign

control over the Court on several key issues involving the institutional design of the Court

(Busby 210: 224).

The formulation of an EU Common Position was eventually concluded in 2001 due in large

part to the efforts of the Council Working Group sub-area dealing with ICC matters (COJUR

ICC). The working group consisting of national technical experts and diplomatic contacts,

had worked closely on the ICC since the PrepCom sessions in 1996. Regular contacts

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between individuals operating within COJUR ICC fostered a sense of identification with and

common understanding of the ICC among member states, a dynamic which produced less

tolerance for the independent policy positions taken previously by France and the UK

(Groenleer & Van Schaik 2007: 978). The impetus to integrate the ICC into the Common

Foreign & Security Policy was also informed by the yearning to have a fully operationalized

Court as soon as possible (Article 1(2) of the 2001 Common Position). For the Statute to

enter into force, at least sixty states needed to ratify it. Meeting such a threshold was deemed

to be highly attainable since in the space of three years, thirty-three states had already

ratified. Consequently, in drawing up the 2001 Common Position, the Council of Ministers

established a basic framework to define the approach of the Union in regard to the Court.

Article 2 of this Common Position is the first Union policy statement that referenced EU and

member states’ obligation to raise the issue of ratification and implementation of the Rome

Statute in its political dialogues with third party states (Article 2 of the 2001 Common

Position). However, as Antoniadis & Bekou (2008) point, the formulation is articulated in

very general terms, leaving

“many gaps to be covered by either atypical instruments (Action Plan, EU

Guiding Principles) or by further initiatives in international fora, either in the

form of unilateral technical assistance to third states to deal with implementation

issues or by establishing the ICC as part of the common vocabulary in relations

with third states and international organizations” (7).

The updated versions of the Common Position (2002 and 2003) elaborate more specifically

the measures to further the objective of achieving universal membership for the Court. Article

2.3 of the 2002 Common Position for instance, articulates that EU member states should

provide technical and financial assistance to third countries which request assistance in

overcoming the legislative work required for ratification and implementation of the Rome

Statute. However, it is not until the formulation of an Action Plan in 2004 that the EU

developed a systematic strategy for advancing universal support for the Court and its

effective functioning. The Action Plan outlines practical and coordinated measures to be

adopted by member states and EU institutions. Critically, none of these measures are linked

to the EU using its material capabilities, namely foreign aid to induce third party states.

Instead the strategy relies on rhetorical and informational devices to achieve this goal. One of

the foremost considerations in the design of the Action was to enhance the consistency,

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density and flow of information on ICC-related matters among EU institutions; measures that

are ultimately intended to maximize the effectiveness of its soft power policy instruments.

The creation of an EU Focal Point and national Focal Points by the General Secretariat of the

Council arose from this ambition. With the EU Focal Point acting as the central coordinator,

the national Focal Points attempt to establish appropriate contacts and exchange information

among relevant political actors, and identify “opportunities to include the ICC on the draft list

of issues to be discussed in negotiations and political dialogues” (Wouters & Basu 2009).

Along with pressing the importance of ICC commitment through political dialogues with

third party states, the EU’s other main policy instrument used to externalize the Union’s ICC-

related objectives, involves démarches. The EU sends out démarches encouraging third party

states to ratify and implement the Rome Statute. It has sent out 275 cables targeting more

than 110 countries and international organizations (General Secretariat for the Council 2008:

9). The use of démarches is not exclusively employed to encourage legal commitments to the

Court but is also used in cases where states have failed or may fail to uphold their treaty

obligations. In the case of al-Bashir's scheduled trip to Malawi in 2011, the EU pre-emptively

sent out cables stressing the need for Malawi to not violate their obligations under the Rome

Statute (Interview EU Focal Point official 2).

In 2005, the linkage between EU aid to African states and commitment to the ICC eventually

became formalized through the Revised Coutonou Partnership; the main framework for EU

development assistance to African Caribbean and Pacific states (ACP). Yet despite this

formalization, the Agreement did not necessarily lock-in ICC conditionalities; rather it

extended the soft power instruments available for the EU to employ when engaging with

African states.

Building on its precursors, the Lomé Convention and the ACP-EU Partnership Agreement

2000 (also known as the Coutonou Agreement), EU negotiators sought to expand the remit of

mutual obligations held between the EU and ACP. During lengthy negotiations in 2004 and

2005, these negotiators led by officials from the European Commission, managed to persuade

African states to accept the insertion of an ICC-related clause in the new partnership

agreement. The clause, Article 11.6 obliges State Parties "to share experience" on the

adoption and implementation of the Rome Statute and parties "shall seek to take steps"

towards both of the aforementioned goals. The insertion of this clause in the revised

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Figure 4.1: Timeline of EU-African relations on the ICC issue

EU Commission Council Common Positions Revised Coutonou Partnership Agreement (CPA):

begins funding (2001), (2002) and (2003): Defines Development cooperation agreement

ICC-supportive EU approach regarding ICC. Focus between EU and African Caribbean and

African NGOs on early establishment of the ICC. Pacific states. Legally-binding ICC-related

Accordingly, obligation on EU to clause inserted into agreement. No

raise issue in its relations with conditionality attached to "non-essential

third parties. Acting under Common clause" however.

Foreign & Security Policy.

Rome Conference: EU Action Plan on ICC: Practical Revised Coutonou Partnership

EU finances several measures to coordinate EU activities, Agreement enters into force: Sudan

African delegations further the universality and integrity of the refuses to ratify revised CPA due to

to attend the six-week Rome Statute. Emphasis on political inclusion of ICC clause which means

Conference. dialogues, demarches and technical the country loses out on development assistance.

assistance.

1995 1998 2001-2003 2004 2005 2008

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Coutonou Agreement is the first and so far only "legally-binding instrument" designed to

pressure African states to ratify and implement the Statute. It entered into force in 2008 with

only Sudan refusing to ratify the agreement in protest to the insertion of the ICC-related

clause. Sudan’s decision to forgo ratifying the partnership agreement meant that the European

Commission could not disburse €300 million in previously pledged assistance to Sudan

(Europa 2009).

Critically however, failure to adhere to the ICC-related clause does not constitute grounds for

aid suspension. Although Article 11.6 is legally-binding, it also qualifies as a non-essential

clause. Unlike “essential” clauses involving democracy and human rights, the consultation

procedure under Article 96 and Article 97 involving possible suspension from the partnership

agreement cannot be activated (Revised Coutonou Partnership 2005; Interview EU Focal

Point official 2; Interview DG Development official). According to an EU official that

participated in these negotiations, attaching aid to ICC commitment was felt to be counter-

productive (Interview DG Development official). Even though by ratifying the Revised CPA,

African states are accepting only a “soft political commitment” regarding the ICC clause

(Interview Delegate for the EU in South Sudan), the clause is sufficiently contentious to deter

both Sudan and South Sudan from entering the agreement (Europa 2009; Interview EU

Delegate to South Sudan).

The absence of formal negative conditionality in cases of non-implementation does not mean

an absence of pressure. For instance, the inclusion of the Article 11.6 in the primary

framework managing EU-African relations serves to legitimize the consistent appraisal of

each sides’ performance on progress towards universalizing and enhancing the integrity of

the ICC (Interview Francoise Moreau, DG Development official). The European External

Action Service can and does raise the issue systematically with its African partners during

political dialogues (Interview with official from ICC Focal Point 1). The nature of this

engagement often avoids coercive approach however. Instead, EU officials generally seek to

rhetorically empower their African partners by emphasizing the “shared values” that are

expressed in the ACP-EU agreements and the AU Constitutive Act (Interview EU Focal

Point official 1) A further element of this empowering approach in political dialogues is

offering technical expertise to help clarify concerns African governments have towards the

Court, in particular issues relating to official immunity and the death penalty. In cases, where

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governments do not have the requisite expertise or resources to carry out the legislative

changes needed to ratify or implement the Statute, the EU will share their capacity with the

government and domestic civil society through seminars and workshops (Interview with EU

Focal Point official 2).

Whilst aid has not been used by the European Commission to encourage Sub-Saharan

African states to join the Court, this does not mean it will not in the future. The EU body for

instance, has recently used aid to encourage countries emerging from the Arab Spring to join

the Court. The possibility of extending this “positive conditionality” to Sub-Saharan Africa

has not been excluded but for the time being, this instrument only applies to Arab states

(Interview with EU Focal Point official 2).

At the bilateral level, it may be a different story in some cases. There is evidence – albeit

limited evidence - to suggest that certain EU member states did employ increased material

assistance to the law and justice sectors as an inducement to ratify the Rome Statute

(Interview 20/8/2013). However, as explored in section 4.4, interview respondents

consistently pointed to other factors for the ratification of the Rome Statute. In addition, as

will be documented in section 4.3, statistically there is not a positive association between EU

aid dependency and ICC commitments.

To conclude this section, it is evident that official development assistance is not an

instrument which the EU at the institutional level has wielded in order to coerce economically

insecure states to accept the Court’s jurisdiction. Power is multi-dimensional and issue-

specific. Rather than employing hard power, the EU instead has instead invested in policy

instruments which are primarily geared towards empowering a liberal identity within African

states through an emphasis shared community of values in tandem. These policy instruments

are also supplemented by offering technical expertise to states which request it.

The frameworks used by the EU to further ICJ in Africa have continuously evolved and

become more institutionally embedded with African governments. Examples of these

frameworks include: funding African civil society to lobby their national governments;

developing nascent common positions on advancing international criminal justice worldwide;

generating a coordinated set of soft policy instruments on ICC-related matters; and the

insertion of a legally-binding clause in a partnership agreement referencing ICC commitment.

It is important to bear in mind that whilst EU efforts to promote the ICC have been present

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since 1995, the institutional impetus to set up a coordinated set of policies on this issue only

began in 2001, and were effectuated from 2004 onwards. Critically, most African states had

ratified the Rome Statute prior to 2004. As a result, an appropriate point to start the empirical

investigation of the impact of EU aid on African states behaviour towards the Court is to first

analyse interactions at the inter-state level; that is whether bilateral aid had any influence on

the stances African state held at the Conference.

Section 4.2 - Alignment of preferences between primary donors and recipients

At the 1998 Rome Conference, African delegations were in the vanguard of supporting an

independent Court with substantial powers (See Coffey 2014). But what if the positions taken

by African delegations at the Rome Conference simply masked external pressures to support

these principles by EU donor states? Particularly, if EU states deemed that African

participation in the ICC was crucial to the Court’s future relevance, as Africa was likely to be

primary site of the ICC’s activities.

If EU sponsors did press their recipients, one should expect African governments to adopt

similar negotiating positions during the Rome Conference. In particular, African preferences

should be far more aligned with EU states compared to a random set of states which have not

provided aid. To ascertain whether these observable implications actually transpire, I

conducted a detailed comparison of the positions adopted by African and EU delegations at

the 1998 Conference in order to operationalize the positional alignment between recipient and

donor. In order to effectively analyse these results, I also compiled a control sample using a

matching technique which identified states sharing the closest similarities to EU member

states according to the control variable, World Development Indicators (WTI).1 The control

sample consists of fifteen non-EU states which did not provide foreign direct assistance to

African governments.

Studying the records of the Rome Conference, I collated data on ten key political issues

which dominated the Conference negotiations for all African, EU and the control sample

states. The issues selected include questions over the Court’s jurisdiction, prosecutorial

independence and the role of the UN Security Council. Given how contentious these political

1 The sample matched twelve EU states with twelve non-EU States. The following details the matches:

Austria/Hungary; Belgium/Slovenia; Germany/Canada; Denmark/Bosnia & Herzegovina; Spain/Japan;

Finland/Australia; France/Israel; United Kingdom/Hong Kong SAR, China; Greece/Puerto Rico;

Ireland/Macedonia; Italy/; Luxembourg/Switzerland; Netherlands/Mauritania; Portugal/Iceland;

Sweden/Norway.

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questions were, there was a large degree of participation and variation among states, giving

the study reasonable scope for empirical examination.

Once I tabulated the positions, I paired each African state with each EU state (and the same

for African and control sample states) and calculated the degree of positional alignment

between all combinations. For combinations in which there is no overlap, I tallied the score

as 0. For complete alignment across all positions, the pair scored 1. To safeguard against low

EU contributors such as Greece skewing the analysis, I weight the proportion of aid given by

each EU state to their African recipient from 1996-1998. Finally, I multiple the degree of

positional alignment with the proportion of aid for each combination, and then aggregate the

score for each issue.

The results from Table 4.1 suggest that African states did not mimic their benefactors; rather

it is more likely their positions were inspired by domestic and regional considerations. If

African delegations formed preferences in order to satisfy donor interests, we would expect a

significantly higher percentage alignment between (group A) African delegations and

European donor delegations than (group B) African delegations and the controlled sample of

delegations. Interestingly, this is not the case. Rather, there is no clear pattern indicating a

consistent distance between group A from group B as one would expect if the theoretical

expectations were valid. Strikingly, certain positions show very low levels of positional

convergence between African recipients and EU donors such as on extent of the Security

Council’s power to defer investigations. Such low levels explain the counter-intuitive finding

shown in the final bar of the table that African delegations overall, agreed to a slightly lesser

extent with their European donors relative to the controlled sample on how the institutional

design of the Rome Statute should be constituted.

In the absence of a clear pattern of policy alignment, we can assume that African delegations

for the most part developed their preferences towards the Court independent of aid

considerations. There is only 39% degree of convergence on arguably the most crucial aspect

of negotiations, the nature of the Court’s jurisdiction. Faced with four alternatives (universal

jurisdiction; inherent jurisdiction for core crimes for State Parties; inherent jurisdiction for

genocide and crimes against humanity but not war crimes for State Parties; and Opt-in and

Out for State Parties for all crimes in the Statute), most African delegations rallied behind

giving the Court inherent jurisdiction; that is, once a state ratifies the Rome Statute it

automatically submits its jurisdiction to the ICC in matters of international criminal law.

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France, the primary donor for 18 of the 47 states during the period under review, pursued the

third option mentioned above. Its delegation assiduously fought to reduce its foreign

deployments exposure to war crimes, typically thought as the most easily violated

international crime due to its lower threshold and the numerous crimes listed under Article 8

of the Rome Statute. As a result, the high-powered French delegation supported inherent

jurisdiction for State Parties but an opt-in jurisdiction for war crimes, a proposal which all of

its recipients rejected. In cases like the aforementioned, the weighted distribution allotted to

primary donors can dramatically impact on the percentage alignment. Gabon for instance,

supported inherent jurisdiction along with the majority of EU delegations but as French

assistance constituted 95% of its total aid, the degree of convergence is less than 5%.

The results in Table 4.1 challenge Scheippers & Sicurelli (2009) assertion that oppressive

Francophone African countries supported the Court due to fears that France would cut off

Table 4.1: Percentage of Positional Alignment at the Rome Conference 1998 between

African delegations and delegations from EU donors, and African delegations and the

Controlled Sample of delegations

0 50 100

Overall Degree of Positional Alignment

Treaty Crimes

Sections C & D

Security Council Referral

Security Council Deferral

Inclusion of Aggression at start of Conference

Inclusion of Aggression without Definition

Weaponry outlawed in Statute

Jurisdictional threshold for War Crimes

Independence of the Prosecutor

Nature of the Court's Jurisdiction

ControlledSample andAfrican State

EU Donorsand AfricanRecipient

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military and development aid (6). According to the aforementioned authors, during the sixth

meeting of the PrepCom, France distanced itself from the United States’ preference for the

Court to have a strong link to the UN Security Council and aligned itself with the LMG

position of including an independent prosecutor. Whilst it is true that the French Foreign

Minister, Hubert Vedrine, gave explicit support for an independent prosecutor in the opening

days of the Rome Conference, the claim that French-speaking African countries only

supported the Court due to anticipated cuts in aid is dubious. If this were the case, one would

expect France and its African recipients to act in concert when negotiating on other

contentious and institution-defining issues such as the Court’s jurisdiction, the threshold for

war crimes, and the inclusion of a prohibition on nuclear weapons. Instead, as has been noted

earlier, the principal donor and its recipients appeared to have operated from considerably

different philosophies over the Court’s institutional design. The French delegation sought to

minimize the Court’s remit over sovereignty on several key issues, while the majority of

Francophone African states were inclined to support proposals that broadened the Court’s

authority and remit.

The contrasting philosophies over the design of the Court evidently extended beyond France

and its recipients based on the results in Table 4.1. The most glaring schism between EU

member states and African states revolved around the UN Security Council’s powers,

specifically, its power to defer investigations. Admittedly, there was a high degree of

consensus in relation to enabling the Security Council to trigger investigations (along with

State Parties and the prosecutor). However, the Security Council’s ability to defer

investigations only reached 16% alignment. The majority of EU delegations agreed with the

United States on this issue. The US delegation pushed aggressively for Court to be in

harmony with the existing international political architecture regarding the UNSC’s

responsibilities to maintain international peace and security as delineated under Chapter VII

of the UN Charter. As a result, twelve of the 15 EU delegations supported giving the Security

Council the capacity to defer investigations up to 12 months subject to renewal in the case of

a Chapter VII resolution. However, the majority of African delegations objected to or least

held reservations in relation to a perceived over-reach of the Security Council’s powers.

Beyond matching the degree of positional convergence at the aggregate scale, I also observed

patterns between individual primary donors and their recipients that may indicate African

delegations did not adopt positions on substantive grounds but merely mimicked their

dominant benefactors. One method is to track whether recipients support donor outlier

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positions; that is, positions endorsed by the donor that lack general support. Yet again, the

data is not consistent with theoretical expectations. As previously demonstrated, no

Francophone African delegations rallied behind France’s proposal for an opt-in jurisdictional

scheme for the Court. Equally, of the five African states to support the German-led call for

providing the Court with universal jurisdiction, only Burundi was a significant recipient of

German aid during this period. Even then, Burundi vigorously defended this proposal due to

domestic interests; that is, the failure of the UN Security Council to investigate crimes that

had taken place in the years prior to 1998, not out of consideration for German preferences

(Interview Burundian Delegate).

There are isolated cases which fit the expectations of the aid dependency theory. For instance,

Guinea-Bissau’s positions are almost identical to its principle donor, Portugal. Similarly, the

Malawian delegation adopted positions which closely resembled the UK’s approach.

However, these cases are far from representative of the broader patterns expressed in the data.

Rather, the empirical findings which emerge from this section strongly indicate African states

endorsed a strong, independent Court independent of aid considerations.

Section 4.3: Does EU aid explain patterns of commitment to the ICC?

Looking beyond the Rome Conference, Section 4.3 quantitatively tests whether dependency

on EU aid significantly impacts on adopting ICC legal instruments. I conduct a survival

analysis to test this relationship. The data for this section is as follows. The variable aid

dependency is measured by taking the total annual sum of foreign direct assistance from the

EU states and institutions and dividing this value by the total annual Gross National Product

(GDP). The data for EU aid is taken from the OECD DAC database and the data for GDP is

drawn from the World Bank.

I also include a number of control variables which theoretically enhance a recipient’s

autonomy over its affairs when dealing with external donors. These include African state

recipients possessing professional civil service2, consolidated democratic institutions3, and a

2 A professionalized civil service theoretically instils credibility in the eyes of the donor. 3 Theoretically, consolidated democratic institutions provide the regime with a high degree of political

legitimacy

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diversification in donors4 (Whitfield & Frasier 2009). To account for a professionalized civil

service, I use data taken from World Bank’s Worldwide Governance Indicators on

‘government effectiveness’. This measurement “captures the perceptions of the quality of

public services, the quality of the civil service and the degree of its independence from

political pressure, the quality of policy formulation and implementation, and the credibility of

the government’s commitment to such policies” (Kaufmann, Kray & Mastruzzi 2010: 4). The

control for capturing democracy is taken from Polity IV’s data on Regime Type which is

coded according to the “general qualities of political institutions and processes, including

executive recruitment, constraints on executive action, and political competition” (Marshall,

Gurr & Jagger 2009:12). The score ranges from -10 (fully institutionalized autocracy) to +10

(fully institutionalized democracy). Finally, to account for non-EU aid, I aggregate the

countries’ total amount of aid provided by non-EU actors and divides this by the countries’

GDP. The data for non-EU aid is similarly taken from the OECD DAC database.

Based on the results from Table 4.1, there is no positive association between aid dependency

and ICC commitment. In the both, the variable aid dependency are negatively associated with

ratification of the Rome Statute.

The absence of a positive relationship between dependency on EU aid and ratification is not

particularly surprising if one takes into consideration that the EU had not adopted Council

Conclusions on the ICC by the time most African states had ratified the Rome Statute. For

instance, by the time the EU got around to adopting practical measures to universalize the

Rome Statute in 2004, over two-thirds of the eventual African State Parties had acceded to

the ICC treaty (twenty-three out of thirty-two). In the absence of coercive mechanisms to

press third-party states to join the ICC, it is not necessarily surprising that a number of

partner states which rely most on EU aid, such as Ethiopia, Mozambique and Zimbabwe have

not felt sufficiently compelled to ratify the ICC Statute.

Likewise, Tables 4.2 to 4.6 (See Appendix) indicate that drafting and implementing the Rome

Statute is not explained by reliance on EU aid. Across all models, the main explanatory

variable is negatively associated with each metric of ICC commitment. In one respect, this is

unexpected. The period in which most African states began drafting or implementing the

Statute, coincided with the EU developing a streamlined set of collective policy instruments

to press African states to advance on ICC commitment. Yet in other respects, the lack of

4 States are less vulnerable to pressure from specific donors in these cases.

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Table 4.1: Ratification of the Rome Statute among Sub-Saharan African States (1998-

2013)

Explanatory Variables Model 1 Model 2

TOTAL EU AID AS PER 0.980** 0.997

PROPORTION OF GDP (0.008) (.005)

DEMOCRACY 1.267***

(0.079)

GOVERNMENT 0.290*** 1.169

EFFECTIVENESS (0.153) (.332)

TOTAL AID FROM 1.002 1.005

NON-EU COUNTRIES (.012) (.008)

AS PER PROPORTION

GDP

Number of Subjects 42 48

Number of Observations 736 658

Significant level at *** p<0.01, ** p<0.05, * p<0.1

correlation is not surprising. The concept of power, a central feature of explanations

regarding foreign aid as a form of leverage; needs to be understood as both multidimensional

and issue-specific (Rourke 2008: 266-267). Although the EU has attached great importance to

promoting the universality and effective functioning of the Court, it has not used its’

economic or military capabilities to pressure weaker third party states to acquiesce on this

issue. Instead, the EU has drawn on its political assets such as political dialogue, demarches

and technical assistance (General Secretariat of the Council 2008). In addition, the EU has

focused on providing technical assistance to only those states which request it. (Interview

with EU Focal Point official 2). This reveals that the EU does not channel its energies and

resources towards targeting regimes which have demonstrated little enthusiasm for initiating

the domestication process but instead responds to governments with genuine political will to

undertake the reforms necessary to fully implement the Statute. Furthermore, unlike

democratic development or economic liberalization, progress on international criminal justice

is not formally attached to official development assistance (European Commission 2006: 11).

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To conclude this section, the empirical findings clearly indicate that the degree of

dependency on EU aid does not explain the extent or timing of commitment to the

international criminal justice mechanisms.

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4.4 – Interviews and Analysis

In order to triangulate the findings from the quantitative tests, I have also conducted

interviews with officials from the European Union, African states and non-governmental

organizations. The data derived from interviews corroborates the findings from the preceding

section. In almost all cases, EU aid is perceived to have made no impact on a countries

decision to adopt ICC legal instruments. Among African interviewees, the factors informing

the government’s decision to integrate itself with the Rome Statute system were independent

of considerations. Among EU officials, there is further confirmation that aid has not been

employed to incentivize ICC commitment.

It is true that during the negotiations to create the ICC many African delegations ending up

joining the European-led coalition of the Like-Minded Group (LMG) instead of rallying

behind the non-Aligned Movement (which offered greater safeguards on national

sovereignty). Yet the reason for doing so was not motivated by sensitivities to European

preferences. Rather, it was a strategic move to further their national interests. Burundi, for

instance, a poor country emerging from a genocide which depended highly on aid joined the

Like-Minded Group largely due to political expedience. Realizing that the LMG bloc was

driving the negotiation process, the Burundian delegation calculated that in order to further

their national political agenda, “they needed to be at the forefront of the negotiations than

somewhere in middle with an unclear position” on other issues not critical to their goals

(Interview Burundian delegate). Likewise the Democratic Republic of Congo (DRC)

supported a strong, independent Court on the basis of national considerations; namely, its

incapacity to deal with the massive human rights violations occurring in Eastern Congo

(Interview DRC delegate and government official). Similarly, domestic incapacity to deal

with internal crimes motivated the Sierra Leone government to support the Court (Sierra

Leone Delegate). Likewise a Lesotho government official dismissed the misperceptions that

African states were strong-armed towards the Court due to EU pressure. He stated that

African countries’ preferences towards the Court were formed as early as 1995 in response

to the international community’s neglect to intervene in Rwanda. A legal advisor for the

Organization of African Unity (OAU) who attended the Rome Conference, reaffirmed the

absence of EU aid as a factor in African preferences at Rome and beyond. He stated that

African states have sought to create an ICC since 1978, due to domestic incapacities to deal

with internal crises (Interview Senior OAU Legal Advisor)

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A high-ranking South Sudanese government official stated that in meetings with European

officials, commitment to the ICC was presented as being “not compulsory” within the ACP-

EU agreement but a goal to be striven for in the future once the country has built up its local

capacity to be able to properly adhere to the Statute. An EU delegate working in Juba

reaffirmed this view; however the delegate also stated that although there was no deadline for

accession to the Statute, if South Sudan were to sign the Coutonou Partnership Agreement the

government would be obliged to make progress on ICC commitment (Interview 21/6/2013).

Returning to the South Sudanese state official, he recalled that the question of aid and ICC

commitment was mentioned only once in tandem by a “small EU member state”.

Interestingly, he stated the donor partner stressed that ratification to the Rome Statute would

be “good for both of us” as the distribution of aid to South Sudan could be an “easier sell to

the home Parliament” However, there was no explicit mention of conditionality and despite

its dependence on foreign aid after the shutdown of oil production in 2012 (Robinson 2012),

South Sudan does not intend to ratify the Rome Statute in the near future due to national and

regional considerations (Interview South Sudanese Director-General of Research, Policy and

Monitoring).

Moving on to interviews with EU officials, there is further confirmation of the marginal role

aid played in explaining Africa’s commitment to the ICC. The negotiations for the Revised

Coutonou Partnership Agreement in Luxembourg in 2004 provide a telling insight into the

dynamics of EU relations with African states which is instructive for this paper. Three

conclusions emerge from these negotiations. Firstly, the ambition to universalize international

criminal court is clearly a priority for the EU but attaching progress on ICC commitment was

deemed to be an inappropriate application of aid conditionality. Francoise Moreau, acting on

behalf of the European Commission led the Unit which carried out policy work on the ICC-

related clause. In devising the EU’s negotiating position on this clause, initially there were

voices within the EU calling for the ICC-clause to be one of the items covered in Article 96

which would leave partner states making inadequate progress on ICJ commitments

vulnerable to aid suspension. However, the argument was not retained in recognition that

conditionalities are an extremely sensitive matter and if applied, need to be appropriately and

sensibly calibrated among the other obligations in the agreement. According to this rationale,

ratifying and implementing the Rome Statute was agreed to be an inappropriate objective to

attach to aid for one specific reason. Within the centres of EU policymaking, there is a

conviction that multiplying conditionalities for political objectives can be counter-productive,

19


particularly if they are not linked to development processes and outcomes (Interview DG

Development). Progress on the ICC falls into this category and would have potentially

disrupted the balance achieved in Article 11 (where democracy, the rule of law and human

rights fall) which are each deemed as essential items. The employment of soft policy

instruments to universalize the Court makes sense in this context.

With commitment to the Court off the table in terms of formal conditionalities to aid, EU

negotiators strove to negotiate an ambitious text that committed EU and their African

partners to clear, measurable steps to advance international criminal justice that could be

assessed at regular intervals. However, African negotiators resisted such moves. And they

were partially successful, challenging assumptions of deep asymmetries between perceived

European power and African impotence, which brings us to the second conclusion.

What is clear from the EU-ACP negotiations in Luxembourg is that African states have real

leverage in negotiations with the EU, a dynamic which has been under-appreciated by current

discourses on the ICC and perceived Western imperialism. The relative absence of clear

power equivalences is due to two factors. The EU’s priority to universalize and achieve the

effective functioning of the Court (Action Plan 2004) requires above all else, the support of

African states, a group which Finnemore & Sikkink (1998) would call “critical states” to the

court’s evolution. Secondly, in order to garner support among these actors, the EU through its

soft form of engagement had to be willing to compromise with African peers. If the EU were

more disposed to deploy its hard power through economic inducements, it would likely have

been able to impose its terms to a much greater degree on the final EU-African framework

concerning the ICC. However, since the EU chooses to “engage in a discourse of partnership,

solidarity and dialogue towards SSA” (Sicurreli & Scheippers 2009: 608), it must be

sensitive to and give ground to African political interests (although these interests can be

challenged normatively) if necessary to conclude an agreement.

The European Commission pushed for a strong and explicit reference to the ICC in

Luxembourg. Yet a cohort of African states consistently resisted European advances on this

issue (Interview DG Development official, Interview European Commission official,

Interview Irish delegate to the Coutonou Partnership Agreement negotiations). Despite

assurances from African legal advisors throughout the negotiations indicating their support

the ICC and the principles that underlie it, a substantial number of African delegations

remained evasive towards European proposals. According to the three interviews cited above,

20


after weeks of negotiations it finally emerged that resistance stemmed from concerns that

such an inclusion would derogate from the bilateral immunity agreement signed by over two-

thirds of African states with the United States. Upon realizing this, the EU-led negotiators

proposed an ICC-related clause with much less assertive language relative to their earlier

proposals. Instead of the initially-proposed clause, “the parties shall ratify and implement the

Rome Statute”, the ACP governments consented to the watered-down version “the parties

shall seek to take steps towards ratifying and implementing the Rome Statute”. It is clear that

the finalized language for Article 11.6 provides African states greater discretion in regard to

the depth and pace of committing to the ICC.

It is debatable whether the use of aid as a “carrot and stick” would have produced a more

ambitious ICC-clause in the EU-ACP agreement, or more pertinently would have led to

higher levels of commitment to ICJ on the continent at this point. However, two cases

suggest aid conditionality does strongly influence African positions on issues related to

international criminal justice. Firstly, the United States’ threats to suspend military aid proved

effective in forcing thirty-eight African states to sign bilateral non-surrender agreements

(BIA); a treaty designed to protect US military personnel operating overseas from the Court’s

jurisdiction (Coalition for the International Criminal Court 2006a). The EU reacted by

heavily criticizing the American policy, and drafted legal guidelines detailing the

inconsistencies between the US-proposed agreement and the obligations of State Parties to

the ICC (AMICC 2002). Despite a public line that the EU would not compensate African

states for lost aid, the “EU quietly established a framework that allows it to provide funds to

countries that had lost aid as a result of their rejection of a BIA” (Scheippers & Sicurreli

2008: 613). Even though the EU developed measures to prevent the integrity of the Rome

Statute from being compromised, the soft policy instruments adopted by the EU -

compensation apart - were no match for the robust material pressure exerted by the United

States.

In 2012, the United States again successfully employed material leverage in Africa on an

ICC-related issue. This time however, the US having reversed its policy on the ICC,5

threatened to withhold aid in order to ensure the Malawian government did not breach their

5 At the tail-end of the Bush administration’s presidency, the US softened its stance against the ICC. The work

of the Office of the Prosecutor (OTP) of the ICC careful strategy to placate US concerns played an influential

role in not only, forcing the US to temper their previously strident opposition to the Court, but eventually under

the Obama administration to express its’ willingness to cooperate with the Court (Bosco 2014).

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ICC obligations by hosting the indicted Sudanese President Omar al-Bashir at an AU summit

in Lilongwe. The previous year, the US suspended $350 million that was allocated to Malawi

citing specifically al-Bashir’s visit as a principle reason. In 2012, the “message was not lost

on Malawi’s new government (as) Malawi refused to invite Bashir to the African Union

Summit it was scheduled to host, choosing to give up its hosting role rather than invite Bashir

and violate its ICC commitments” (Capuano et al 2013).

Section 4.7 - CONCLUSION

Speaking at the close of two-day AU summit in Addis Ababa in May 2013, the AU and

Ethiopian Prime Minister accused the ICC of “race hunting” (AFP 2013), a denunciation

which is steeped in the historical narratives of Western imperialism in Africa. When

considering the recent clamour among African political elites and sections of the media

towards the ICC, which the previous statement taps into, it is important to ask why so many

governments from the region made legal commitments in the first place? Why would so

many national governments so readily turn against their international obligations and a treaty

which they initially endorsed? The paper empirically tests one explanation which if valid,

would add further weight to arguments that the ICC is an instrument of the West, targeting

poor, backward African states. The explanation that would serve to add fuel to this narrative

is that weak, cash-strapped African states entered the ICC treaty on the basis of seeking to

satisfy and anticipate the demands of their European donors. If this were the case, the recent

backlash makes a great deal of sense. African states, largely ignorant of the implications of

signing up to the ICC, ratified the Rome Statute without a great deal of consideration due to

the more immediate short-term rewards in the form of increased European material

assistance. However, once the ICC indicted a sitting African Head of State, governments

became cognizant of the ICC’s powers and turned against it in fear they too may be targeted.

The paper demonstrates that this narrative is unlikely to be true. The framework guiding EU

member states and institutions in its relations with third states concerning ICJ has employed

soft power instruments since 1995. As a result, the imbalance in power relations is not

necessarily heavily-tilted on the EU side; rather African states have had a key role in defining

the extent to which the EU can press African states on this issue. Furthermore, it is clear that

African states had independent preferences towards the institutional design of the Court. The

absence of alignment between African recipients and their European donors implies that

African states did not consider European aid as a motivating factor in mobilizing behind a

22


strong, independent Court. The paper also demonstrates the absence of a positive association

between dependency on EU aid and commitment to ICJ mechanisms. Rather, if any factor

was likely to prompt African states to ratify the Rome Statute, it derives from a different

policy instrument used by the EU: funding pro-ICC international and national NGOs to

sensitize and offer technical assistance to the government. Finally, based on interviews from

relevant stakeholders in this process, aid is not considered a contributing factor. EU officials

discuss the use of political tools to apply pressure on this issue, but not material. African

government officials justify their support or rejection of the ICC on the basis of national and

regional considerations.

To conclude, whilst I do not dispute that some African states may have ratified the Rome

Statute on the basis of EU pressure or in an attempt to satisfy donor preferences (Chad is an

obvious example), there is insufficient evidence of a general pattern fitting this hypothesis.

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Appendix:

Produced Draft Cooperation Legislation of the Rome Statute among Sub-Saharan

African States (1998-2013)


TOTAL EU AID AS PER 0.973*** 0.986* PROPORTION OF GDP (0.010) (.006) DEMOCRACY 1.348*** (0.1211) GOVERNMENT 0.266** 1.492 EFFECTIVENESS (0.173) (0.318) TOTAL AID FROM 614208.0*** 4657635*** NON-EU COUNTRIES (2658074.0) (1.85e+07) AS PER PROPORTION OF GDP




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Produced Draft Complementarity Legislation of the Rome Statute among Sub-Saharan



TOTAL EU AID AS PER 0.961*** 0.988* PROPORTION OF GDP (0.010) (.006) DEMOCRACY 1.564*** (0.158) GOVERNMENT 0.899** 1.227 EFFECTIVENESS (0.161) (0.434) TOTAL AID FROM 369613.4** 715144.5*** NON-EU COUNTRIES (1963089.0) (3336736) AS PER PROPORTION OF GDP




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1.5.1 –Domestic implementation of cooperation legislation among Sub-Saharan African

States (1998-2013)


TOTAL EU AID AS PER 0.977 0.982 PROPORTION OF GDP (.016) (.016) DEMOCRACY 1.140 (0.122) GOVERNMENT 1.230 3.554* EFFECTIVENESS (1.247) (2.496) TOTAL AID FROM 556226.4 994245.7 NON-EU COUNTRIES (5977917) (1.35e+07) AS PER PROPORTION

OF GDP




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1.5.1 –Domestic implementation of complementarity legislation among Sub-Saharan



TOTAL EU AID AS PER 0.989 0.996 PROPORTION OF GDP (.009) (.016) DEMOCRACY 1.303** (0.140) GOVERNMENT 0.597 2.479* EFFECTIVENESS (0.459) (1.358) TOTAL AID FROM 43579.66* 44107.83 NON-EU COUNTRIES (274643) (413038.9) AS PER PROPORTION

OF GDP




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Table 4.2 –Ratification of APIC among Sub-Saharan African States (2003-2013)


TOTAL EU AID AS PER 0.933*** 0.985 PROPORTION OF GDP (.017) (.010) DEMOCRACY 1.462*** (.162) GOVERNMENT 0.095*** 1.182 EFFECTIVENESS (0.067) (0.496) TOTAL AID FROM 5.15e+21*** 7726731 DEOM NON-EU COUNTRIES (8.10e+22) (9.63e+07) AS PER PROPORTION OF GDP




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