Africa and the International Criminal Court: Is There Room for Cooperation?

At its January 2017 meeting in Addis Ababa, the African Union (AU) called for mass withdrawals of its members from the International Criminal Court (ICC). This news surprised few contemporary observers across the continent. Many African countries initially supported the ICC because of the carnage and atrocities that befell Rwanda in 1994 and because of their belief that some criminals, including high-ranking government officials, were literally getting away with murder when national legal systems were either incapable of or unwilling to prosecute these individuals for their alleged crimes. As a consequence, many Africans considered the ICC not only as a “court of last resort,” but also one that could deliver the justice that domestic courts across the continent had failed to provide. Although both the ICC and the AU are interested in pursuing international criminal justice on the continent, the two parties have gradually developed a significant rift. The AU and many of its member countries believe that the ICC is pursuing “selective justice” and does not have the authority to prosecute incumbent heads of state. Moreover, while the ICC is concerned exclusively with justice, the AU’s interests are both justice and peaceful coexistence. Conflict between the AU and the ICC centers around which of those interests should be given precedence.

On March 31, 2005, the United Nations Security Council (UNSC) referred the situation in Sudan’s Darfur region to the ICC after the body determined that the region’s unresolved conflict constituted a threat to peace and security under Article 39 of the UN Charter. Four years later, the ICC Pre-Trial Chamber issued an arrest warrant against Sudanese President Omar Hassan al-Bashir for crimes against humanity, war crimes, and, later, genocide—including intentionally directing attacks at civilians in the Darfur region of Sudan. Since the conflict in Darfur began in 2003, thousands of civilians have been killed and the international community has accused the Sudanese military and police, as well as several non-state actors, of committing the atrocities.

However, the Court was unable to enforce these warrants, because many African countries, most notably South Africa, refused to cooperate, instead arguing that the ICC was interfering with the Sudanese people’s right to govern themselves. Meanwhile, human rights activists and other supporters of the ICC argued that the Court had only acted when it became evident that Sudanese courts were either unable or unwilling to force al-Bashir to account for the alleged atrocities in Darfur.

Al-Bashir’s indictment presented a dilemma for the ICC and the AU. While the ICC was interested in bringing the Sudanese president to justice for his alleged crimes in Darfur, the AU believed that its peace and security mission in the country could not succeed without the cooperation of the Sudanese government. It was unlikely that Khartoum would work with the AU while its president was under indictment by the ICC. The AU’s primary objective was to bring stability to the war-torn region of Darfur, to facilitate peace talks between the feuding parties, and to secure a final and sustainable settlement. Since the government of Sudan was one of the parties involved in the conflict, securing a final settlement required Khartoum’s cooperation.

Thus, when the ICC prosecutor presented evidence against al-Bashir to the ICC Pre-Trial Chamber on July 14, 2008 and further requested that an arrest warrant be issued against the Sudanese president, the African Union's Peace and Security Council (PSC) issued a communiqué addressing the prosecutor’s application. While calling for peace, accountability, and justice in the continent, the PSC raised objections to the prosecutor’s application and declared that “the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.” The PSC communiqué also expressed concern that the ICC arrest warrants against al-Bashir reflected a “double standard” and a “misuse of indictments against African leaders.” The PSC, mindful of the need to address impunity and promote peace on the continent, requested that the UNSC “act in accordance with Article 16 of the Rome Statute” and “defer the process initiated by the ICC,” giving both the AU and the government of Sudan the opportunity to engage in negotiations to bring about a peaceful settlement in Darfur.

Four months later, the UNSC had yet to act after its members failed to agree on a common position on the AU’s request for a deferral. The United States, United Kingdom, and France opposed deferral, while Russia and China supported the request. Consequently, a meeting of African States Parties to the Rome Statute declared that “in view of the fact that the [Article 16] request by the African Union has never been acted upon, the AU Member States shall not cooperate… for the arrest and surrender of President Omar Al Bashir of The Sudan.” The AU decision to protest the indictments hinted at a belief that foreign legal systems should not try African leaders. The AU’s response also implied that Africa could completely disengage from the ICC and build the necessary capacity to prosecute crimes committed within its jurisdiction through continental legal institutions. The Extraordinary African Chambers, which convicted former Chadian president Hissène Habré of crimes against humanity (including sexual violence and rape), war crimes, and torture can serve as a foundation for establishing such an institution.

Many observers now argue that the ICC’s and UNSC’s involvement in the Sudan situation “has come to reflect the skewed nature of power distribution within the UNSC and global politics.” Africa’s anger with the ICC suggests a wider frustration with a post-World War II global system that continues to marginalize Africans and infantilize their leaders.

The AU and the ICC must resolve the conflict between them in order to create an environment within which conflict resolution can take place and, at the same time, allow for those people engaged in international crimes in the continent to be brought to justice. Regarding the tension between the AU and the ICC, Article 16 of the Rome Statute, which grants the UNSC the authority to defer investigations or prosecutions, can be used to temporarily suspend investigations and prosecutions in order to allow peace efforts to proceed. Of course, only the UNSC can instruct the ICC to defer investigations and prosecutions.

Of the five permanent members (P5) of the UNSC, only the United Kingdom and France are States Parties to the Rome Statute. China is a non-party, non-signatory state, while Russia and the United States signed the treaty but never ratified it—meaning that three of the P5 are not subject to ICC jurisdiction. Yet, these three parties are granted power under Article 16 to interfere in the independence of the ICC by, for example, passing resolutions that can defer an ICC investigation or prosecution. Especially considering that no African country is a permanent UNSC member, reforms that grant Africa the right to participate permanently in UNSC activities is necessary. The AU has suggested that deferral requests should be considered by the UN General Assembly if the UNSC fails to consider them after six months. Others also suggest that the UNSC should grant Africa at least one or two permanent, veto-wielding seats on the Security Council in order to bring about a more balanced approach to justice and peace on the international stage.

The ICC has thus far prosecuted only African cases. While the ICC’s previous prosecutions are based upon solid legal grounds, it would be unwise for the Court to ignore the voices of those who argue that the ICC is a tool of Western imperialism. Given Africa’s troubled past with Europe, it is incumbent upon the ICC to show its African critics that the Court’s interests lie in serving the continent as a court of last resort and as a complementary institution to domestic courts. The ICC must prove to African states that it is not an arm of international imperialism.

Reforming the ICC is just the first step to building a more effective and equitable international criminal system; but reforms alone are not enough to ensure peace, security, justice, and nation building in Africa. Effecting lasting change requires legal systems that render outsourcing justice unnecessary. While it may take many years before African countries can develop both the legal capacity and the political will to fully protect their citizens, they can begin the process by building continental institutions that can serve as a court of last resort. During this interim period, it will be necessary for national governments in the continent to cooperate with the ICC to ensure that domestic victims of international crimes are granted access to justice. Within this framework, however, the ICC must work closely and cooperatively with African governments and other stakeholders to enhance the peaceful resolution of conflict.