Africa and the International Criminal Court

The Relationship Between Africa and the International Criminal Court

Professor Charles C. Jalloh, a Fulbright Lund Distinguished Chair at the Raoul Wallenberg Institute, lectured on the relationship between the International Criminal Court (ICC) and Africa and shared insights on its core legal and political challenges.

The following is a summary of the session, divided into three parts: Africa’s initial enthusiasm for the ICC, why the relationship went sour, and, what the future might hold for both sides:

Africa’s early enthusiasm for a permanent International Criminal Court

Professor Jalloh maintained that African States initially saw the ICC as part of the solution to the problems regarding international crimes. Thus, they embraced the ICC idea, joined it in large numbers, and referred situations to its prosecutor for investigations.

The first point is illustrated by the fact that, on February 2, 1999, Senegal became the first country in the world amongst a group of 120 countries that had signed the ICC Statute at its adoption in Rome on 17 July 1998, to ratify the Rome Statute of the International Criminal Court.

Part of what drove the enthusiasm was the tragic Rwandan Genocide in April 1994. The international community, especially the United Nations, was forewarned about genocide but failed to act. This strengthened Africa’s resolve to support the idea of an independent and effective ICC. Their hope was that the future tribunal would punish, and help deter, perpetrators of such crimes. They therefore pushed for a strong ICC during the Rome negotiations in mid-1998.

African States joined the ICC in large numbers. Thirty-three members are from Africa. Thirteen additional African countries had signed the Rome treaty, although they are yet to take the final step. For context, Africa is followed by 25 states from Western Europe, 28 from Latin America and the Caribbean, 18 from Eastern Europe and only 20 from Asia. To Professor Jalloh, this proves the strong African interest in the ICC.

He explained that most of the ICC’s current work also comes from Africa. These include Central African Republic (CAR), the Democratic Republic of Congo (DRC), Ivory Coast and Uganda. Those countries invited the ICC prosecutor to investigate crimes allegedly committed in their territories. Thus, according to Professor Jalloh, they in a sense exposed themselves. This was because the ICC investigates whoever engages in conduct that violates the Rome Statute, meaning that both militia and government forces in those countries could come within the ICC’s sights.

What went wrong with the ICC – Africa relationship?

In the second part of his lecture, Professor Jalloh addressed how the initial enthusiasm for ICC justice became riddled with controversy. African leaders, such as Rwandese President Paul Kagame, have criticized the ICC. He suggested that the ICC is a bad institution reminiscent of “colonialism” and “imperialism”. He claimed it wants to undermine Africa.

Even though the ICC seems to enjoy strong support among civil society, the views of African leaders have been echoed by a number of African scholars. Some of them suggest that Africans have become the “sacrificial lambs” in the ICC’s struggle to establish itself as a proper court of law and to gain global legitimacy.

Professor Jalloh noted that there were several legal issues that have also soured the ICC – Africa relationship. Some of these issues were similar to those raised by other countries in other parts of the world, for example, the issue whether a State should first agree before the ICC can assert its jurisdiction over its nationals when it is yet to voluntarily join.

There were also other challenges, such as the March 2005 referral of Sudan to the ICC prosecutor by the UN Security Council. For the AU, the referral raised questions of how best to sequence peace and justice. Once indictments were issued against President Omar Al Bashir of Sudan, other concerns arose regarding whether another African country could arrest Al Bashir or whether he is immune from that under current international law.

Political issues have proved divisive too. To Professor Jalloh, the biggest challenge is the perception that there is a “double-standard” in international criminal justice. In particular, as it relates to the decisions of the UN Security Council in the exercise of its power to refer situations to the ICC or to defer them. For example, African countries sought to suspend the ICC’s work for a year in relation to the Sudan Situation. They also made a similar request for Kenya. Both efforts were unsuccessful. They criticized the Security Council.

What does the future look like, for the Africa – ICC relationship?

Professor Jalloh believes that Africa, the AU and the ICC have much to gain from each other. He suggests there is scope for “a win-win” for the two sides. Both share the belief that prosecution of international crimes would not only help prevent crimes, but that it will also likely deter others from committing more in the future.

With its current 10 formal investigations into situations in Africa, he says the ICC will gain significant benefits if it is better able to work with African governments while ensuring that it conducts fair trials that meet the highest standards of international justice. In this way it would prove itself as an effective court of law. All things being equal, this should boost state confidence in the ICC as a new institution, which seems currently low.

He further suggested that it would be less costly for the ICC if African countries can prosecute their own alleged genocidaires, rather than in Hague, which is far away from Africa. This factor is the linchpin of what is known as the complementarity principle. But that principle, which lays the primary responsibility to do something on the states parties, assumes that states are able to investigate and prosecute their cases. That is not always the case for African countries. Meaning that the ICC could perhaps explore ways to help them build their capacity to do so – the so-called “proactive complementarity”. This is particularly important given the substantial money that are usually required for the ICC to carry out investigations and hold trials thousands of miles away from the crime base.

Prosecutions of persons in the country where the crimes occurred would also give Africans a better chance to witness justice.

Professor Jalloh suggested that, even though the Africa-ICC relationship currently appears to be facing some challenges, he expects that the relationship will continue to evolve. A key part of that might be the role of African and global civil society to promote better understanding of the ICC in Africa. Another part of that involves African states improving their cooperation and support for the ICC. They certainly should not withdraw from the ICC, as Burundi did recently. Being at the table allows them to seek change from within.

Further, he appreciated that the AU in 2015 and again in 2018 decided to file briefs before the ICC to voice its concerns, in relation to the Kenya and Sudan situations, thereby suggesting a willingness to engage in debates over the difficult legal questions. Such efforts should continue.

From the ICC side, it could perhaps take more steps to address the AU concerns about peace versus justice, and issues of immunity of state officials. The question of how to time justice, so that societies do not further suffer more conflict and more atrocities, is an important one.

In the end, Professor Jalloh who is the lead editor of International Criminal Court and Africa (Oxford University Press, 2017) explained that many people seem to criticize the ICC today. But he urged that everyone to be patient. After all, the ICC is still a baby institution. Every new entity has a learning curve. Sometimes, it takes a bit of time for it to reach its full potential. It is up to its members, such as the Nordic countries, and the Security Council to give it all the various types of support it needs to succeed.

Did you know?
  • All five Nordic countries are states parties to the Rome Statute. All five of them, including Sweden, are seen as strong supporters of the ICC. Support for the ICC is often mentioned as one of the priorities of their foreign policy.
  • Of the 11 situations currently under formal investigation by the Prosecutor of the ICC, all but one (that is the situation of Georgia) are in Africa.
  • There are 123 States Parties to the Rome Statute, with Malaysia being the latest member to join on 4th March 2019
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