Behind Backlash: the ICC and “African Backlash” in Context

In recent years there has been significant interest among scholars and practitioners in a perceived wave of backlash against the International Criminal Court from African governments. The portrait this growing literature may suggest of African relations with the ICC, however, is somewhat myopic. While there has certainly been strong opposition to the ICC from several African governments, in this paper we put this into broader context, arguing that a focus on “backlash” masks variation and nuance, and even support for the ICC from many African governments. While some governments have expressed opposition to and engaged in antagonistic behaviour towards the ICC, others have expressed views and behaved in manners supportive of the ICC, helping to bolster the Court during this crisis. In this paper, we set so-called “backlash” against the ICC in its broader conceptual context, developing a series of propositions about government attitudes and behaviour towards the ICC, which we then test using an original dataset. In doing so, we make three contributions. First, building on existing literature on backlash, we provide a detailed typology of state attitudes and behaviour towards international tribunals and institutions generally, ranging from supportive to critical, and accounting for nuances across dimensions. Second, using this reconceptualisation, we find that a focus on “African backlash” against the ICC risks overlooking the variation of attitudes and behaviours over time towards the ICC amongst African governments, including persistent patterns of support manifesting throughout the “wave” of anti-ICC backlash. Third, and finally, we conduct a statistical analysis of behaviours and attitudes towards the ICC: we find that – perhaps unsurprisingly – non-Rome Statute states parties are more likely to express negative attitudes and behaviours towards the ICC than parties to the Rome Statute. We also find that governments from which the ICC has requested cooperation are more likely to express more antagonistic rhetoric towards the ICC than the governments of states that have not received such requests. Moreover, behaviour towards the ICC and domestic human rights records seem to be related, with governments with worse human rights practices being more likely to adopt antagonistic actions towards the ICC. These findings suggest that the ICC may face future challenges and that it is likely necessary for the ICC to engage more with Rome Statute parties and non-parties alike.