When the Rome Statute was being negotiated, many participants in the process viewed the future institution as a body that would be established and controlled in the Global North, but with the function of delivering justice to the Global South.
This was reflected in debates about the threshold of ratifications necessary for entry into force. It was argued that the proposed number of 60 reflected the hidden agenda of opponents to the institution who understood that such a target was unattainable. Only countries like Ireland, Sweden, and Canada were likely to sign up. It was argued that entry into force should be premised upon 20 states; otherwise, the Rome Statute would be stillborn.
In a similar vein, many pleaded for universal jurisdiction as a basis for the Court's operation. They insisted that the Court would never be able to function in the places where it was most needed because support would be confined to noble states in northern Europe. Only if the Court could act with respect to the territories of states that had not ratified the Statute could it ever be effective, these voices insisted. This was because states with a history of conflict and civil war could never be expected to sign up.
It soon became evident that these North-centered visions of international justice were dramatically misplaced. Nowhere was this erroneous vision so apparent than in Africa, where states embraced the Court with stunning enthusiasm. If the threshold for ratifications had been set at 20 instead of 60, the Statute would have entered into force based upon African ratifications alone. Moreover, not only did states with ongoing conflicts recognize the jurisdiction of the Court, they seemed to do so precisely because they viewed the Rome Statute as a helpful new addition to the existing mechanisms of justice, accountability, and peace.
Africa' s unmatched enthusiasm for the Court was an unexpected and very salutary phenomenon. Africans seemed to be rallying to the institution not only because of the perceived inadequacies of existing bodies like the Security Council, but also because this was something they would control democratically, as equals.
That relationship has soured. The turning point was the Prosecutor's application for an arrest warrant against President Bashir of Sudan in July 2008. What seems to have been decisive was not a perception that the Court was targeting Africa. It had already been doing this for several years, and Africans seemed to welcome the attention. But in July 2008, the Prosecutor responded indifferently when African political institutions, and specifically the African Union, begged for the Bashir prosecution to be reconsidered.
The Prosecutor invoked his judicial and non-political function in dismissing the views of African states. As he said repeatedly, his role was not conditioned by the political wisdom of targeting a particular individual. Like an international Inspecteur Clouseau, his job was to "follow the clues." If political input was required, the Prosecutor explained that this was provided for in Article 16 of the Statute, which authorizes the United Nations Security Council to intervene and block proceedings.
This was not a good message to send to Africa. The Court that Africans had cherished in its early days precisely because it was refreshingly independent of domination by powerful states in the North turned out to have a close functional relationship with the Security Council after all, they were told. Or at least it did based upon the Prosecutor's reading of the Statute. Pretending to be detached from the Security Council, the Prosecutor was actually doing the opposite. …