Africa and the International Criminal Court - Cutting through the noise

In popular accounts, Africa and the International Criminal Court (ICC) are pitted against each other.

The ICC is derided as being “biased” against Africa, ignorant of the attitudes and desires of Africans, and even neo-colonial. We, the Africa Group for Justice and Accountability (AGJA), wish to set the record straight.

The first question we need to answer is: how did we get here? Why is the debate about the relationship between Africa and the ICC so acrimonious? The reality is that the Africa-ICC relationship suffers from misinformation, misperceptions and misunderstandings.

Many parties share responsibility for this. Some African leaders have, on occasion, decried the ICC in order to protect themselves from the Court’s scrutiny. Yet it must also be said that the ICC has not been able to communicate its message and mission effectively on the continent, leaving its record susceptible to those who seek to undermine the institution for political purposes.

Furthermore, members of the UN Security Council have not always been willing to engage in a dialogue with African states about issues relating to international criminal justice.

Created in 2015, the AGJA has put itself forward as an unbiased broker in the relationship between the ICC and Africa. We are an independent group of African experts from a diversity of backgrounds. What we share in common is, above all, a commitment to ending impunity on the African continent and the world over. The ICC is a key player in this mission and continues to have a place in Africa.

Let us consider some of the falsehoods and realities in the ICC-Africa relationship.

Some insist that the ICC has no place in Africa and that African states must withdraw from the Court because the institution has intervened primarily in African conflicts, while situations outside the continent remain uninvestigated.

However, perfect justice cannot be made the enemy of any justice. To suggest that because justice cannot be served everywhere, justice should not be served anywhere makes little sense and insults the victims and survivors of human rights abuses.

There are two important and related questions that need to be asked. First, why has the ICC focused its investigations almost exclusively on Africa? To this, let us respond with another question: can anyone argue that the situations in Africa where the Court has opened official investigations —northern Uganda, the Democratic Republic of Congo, the Central African Republic, Darfur, Sudan, Kenya, Libya, Cote D’Ivoire, and Mali— are not deserving of an ICC intervention? The answer is clearly no! All are situations where systemic crimes against humanity or war crimes have been perpetrated.

All are situations where it can be reasonably claimed that the local justice systems were either unwilling or unable to investigate and prosecute international crimes themselves. The ICC was justified in intervening in every one of these situations.

At all events, it is important to recall that in the majority of these cases, the relevant governments have invited and co-operated with the Court’s investigators and prosecutors. In other cases, the African Member States of the Security Council voted in favour of referring the situations to the Court.

The second question is: why has the ICC not intervened elsewhere and, especially, in powerful states? Here, it is important to acknowledge that the Court remains severely limited in its reach. While there have been recent calls for the ICC to intervene in Syria and North Korea, for example, the Court’s current jurisdiction prohibits it from doing so.

The AGJA believes in and has consistently advocated universal ratification of the Rome Statute of the ICC as being the best means of ensuring justice and accountability around the world.

At the same time, it is important to note that the ICC is not confined to investigations in Africa. It has now opened an official investigation into the 2008 war between Georgia and Russia, a permanent member of the United Nations Security Council.

The Court also continues to examine allegations of international crimes on other continents, including allegations of torture and enhanced interrogation techniques by US officials in Afghanistan and of war crimes by British troops in Iraq.

Another oft-heard argument is that the kind of retributive justice offered by the ICC is alien and inappropriate to the African continent. Some even suggest that criminal punishment may have the effect of perpetuating conflict. However, it is the act of sweeping grievances and injustices under the rug that fuel unrest.

It is providing impunity for powerful perpetrators of mass atrocities that risk undermining the long-term stability and development of African communities.

Of course, no single type of, or approach to, justice is sufficient. African communities can and should have a say in what types of justice mechanisms are most appropriate. But the ICC does not present itself as a panacea for or silver-bullet to peace or, indeed, justice. It can only prosecute those most responsible for mass atrocities.

Moreover, it has shown itself to be increasingly sensitive to the voices and desires of African constituencies. For example, in northern Uganda, many citizens have made it clear that they do not want Lord’s Resistance Army (LRA) combatants to be prosecuted in the courts.

Instead, they want them to be returned to their communities and integrated into society following a process of traditional justice. Responding to such concerns, the ICC chief Prosecutor has stated publicly that no more arrest warrants will be issued for LRA combatants, and has actively encouraged fighters to defect from the rebel group.

Never before has so much been done on the African continent to achieve accountability for international crimes. We welcome the numerous and impressive developments across Africa to address systemic human rights abuses, such as the trial of Hissène Habré in Senegal’s Extraordinary African Chambers, the Central African Republic’s plan to set up a Special Criminal Court, South Sudan’s proposed hybrid tribunal, and the expansion of the jurisdiction of the African Court on Human and People’s Rights to include international crimes.

While none is perfect in itself -and indeed, immunity of Heads of State and State officials for core international crimes in international criminal courts is unacceptable- these and the many other recent developments point to a continent taking a leadership role in international criminal justice, provided that its political leaders really keep to their announcements and pledges.

These are also opportunities for us and for the international community as a whole to share expertise and engage in respectful and context-specific judicial capacity-building projects. And let us be clear: these new institutions are not alternatives to the ICC —they are complementary to the Court and can help to solidify and reinforce a comprehensive system of global justice.

Even so, the ICC must listen to those who offer it constructive criticism. Many view the Court as being too close to the Security Council, whose three most powerful Member States —Russia, China and the USA— are not parties to the Rome Statute. On two occasions (Darfur and Libya), the ICC has accepted referrals from the Security Council and consequently intervened in non-Member States.

While it has to be said that the Office of the Prosecutor of the ICC is not bound to accept UN Security Council referrals automatically and will independently ensure that the necessary legal requirements of the Rome Statute are met, it is nonetheless difficult to accept that referrals for the worst crimes known to mankind can be made with caveats that exclude a number of potential players in those conflicts from the ICC's jurisdictional reach.

The ICC must do a better job of responding to overt attempts to politicise its mandate. It must not only do justice, but be seen to be doing justice by being more effective, robust and responsive to the ordinary African’s justice needs. The ICC must do a much better job of communicating its role and impact on the continent.

African states are friends of the ICC. 47 African states participated in the drafting of the Rome Statute and 34 African states have ratified the ICC Statute. African states have continued to refer situations to the ICC.

Africans hold the most senior positions in the Court. African states fund the institution. We constantly hear from African officials and diplomats that they support the ICC and have no intention of leaving the Rome Statute system. We call on these governments to stand up and speak loudly and courageously in the fight against impunity —both in Africa and beyond.

We are committed to working towards and supporting a world without impunity for international crimes and without double standards. Yet that will not and cannot be served by heightened, disingenuous rhetoric or by African states leaving the International Criminal Court.