The African Critique
The Rome Statute is the treaty that established the International Criminal Court (ICC). Article 12 of the Rome Statute provides that the ICC exercises jurisdiction on crimes committed on the territory or by the nationals of states parties to the court. Article 13 provides that the Court exercises jurisdiction when a situation is referred to the Prosecutor by a State Party, by the Security Council, and where the Prosecutor has initiated an investigation by his own initiative. In accordance with this, the ICC has so far investigated ten situations. The situations in Uganda, Democratic Republic of the Congo, Central African Republic, and Mali have been referred by the states themselves. The Security Council referred the situations in Darfur, Sudan and Libya. The situations in Kenya, Cote D’Ivoire, and Georgia have been opened by the prosecutor’s own initiative.
Out of the 124 member states of the ICC, 34 are African. African states were at the forefront of pushing for the creation of the ICC and were among the earliest to ratify the Rome Statute which established the ICC. Recently, however, the peaceful relationship between Africa and the ICC has taken a different course.
There are a number of different critical points that are raised by African states. The purpose of this paper is to summarize the core criticisms that are raised and to explain what lies underneath. The paper does not discuss the merits of the critique as such, and the points raised in contravention: this is important too, of course, but beyond the scope of this submission.
First, there is the criticism that the ICC inappropriately targets Africa and African leaders. Of the ten situations and cases under investigation, critics point that the ICC so far has only prosecuted situations and cases in Africa. Currently, with the exception of Georgia, all situations and cases under investigation are from Africa. All four persons who have thus far been convicted by the Court are Africans. All 32 who have been charged by the Prosecutor are also African.
Second, critics argue that powerful states use the ICC and the imagery of international criminal justice as a political instrument. These states refuse to join themselves and use their power in for instance the Security Council to prevent prosecutions of themselves or their allies. As a consequence, these critics experience that there is an image that it is only/mostly Africans that are committing international crimes. And that other states and an international external institution that needs to “help” Africans by bringing justice, comparable to how that was experienced in the colonial era. This has led to an increasing sense and depiction by African leaders of the ICC as a “neo-colonialist instrument” or “racist vehicle.”
Third, the critique asserts that the ICC is mistaken in claiming that international law no longer provides head of state immunity to leaders for prosecutions of allegedly committing international crimes during their term in office. Article 27 of the Rome Statute provides that the official capacity of a person indicted will not be a bar to prosecution. However, this does not apply to non-state parties, such as President Bashir of Sudan. It could be argued, however, that the UNSC referral of the Darfur situation extended the reach of the ICC Statute, including its Article 27, over Sudan. Moreover, and more fundamentally, there is also the argument, that is not accepted by the vast majority but is nevertheless raised by others, that foreign and ICC prosecution of a leader while in office is as such a violation of customary international law and state sovereignty, even for states that signed up to the ICC. And that customary international law provides that this is only possible if the state concerned waives the immunity of its leader. The AU has adopted resolutions that reflect this position. On Oct. 12, 2013, the AU made a decision at its extraordinary summit that no criminal charges can be brought against a sitting head of state or government. In June 2014, at its 23 ordinary session in Malabo, Equatorial Guinea, the AU adopted an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights to merge the African Court on Human and People’s Rights and the African Court of Justice. Article 46A Bis of the Protocol on Amendments provides immunity for serving heads of state and senior government officials. This received a lot of critique from mostly Western commentators that this undermines the fight for impunity. A proposal to exempt heads of states from prosecution has been presented to the Assembly of States Parties to the Rome Statute.
Fourth, it is also brought against the ICC that its proceedings violate the principle of complementarity. The argument here is that requests by African states to allow them to address their own situations through their own domestic courts, or even to support them doing so, were rejected or ignored. This has been experienced as an undermining of the sovereignty of African states and as unhelpful in addressing the justice needs of the affected community, it is asserted. The ICC has, however, also declared the Al Senussi case inadmissible because Libya were conducting their own domestic prosecution. However, according to the critique, the Court should be more willing to allow domestic prosecutions in general and more actively assist such domestic prosecutions where it can rather than engage in an adversarial relation with domestic judicial authorities, where possible.
Fifth, the AU and others claim that intervention by the ICC can have an adverse effect on peace negotiations between parties to a conflict. As a result, the AU’s Peace and Security Council (PSC) requested deferral of the Darfur situation referred by the UN Security Council by claiming that the approval of the arrest warrant could undermine the ongoing efforts aimed at facilitating the resolution of the conflict.
Sixth, there is also a number of different diplomatic fights on cooperation between the ICC on the one hand and a number of state parties on the other. According to the ICC, these states are violating their obligations to cooperate, or are even undermining the Court. Examples are the situation with Kenya, which the ICC referred to the ASP, and the welcoming of President Bashir of Sudan despite the ICC’s arrest warrant against him, which the ICC referred to the UN Security Council.
Origins of the Critique
Tensions between the ICC and African states increased after the ICC’s decision to issue an arrest warrant for Sudan’s president Omar Hassen Al Bashir on March 2009. Although Sudan is not a party to the Rome Statute, the situation in Darfur was referred to the ICC by the UN Security Council in March 2005. This was the first arrest warrant that was issued by the ICC for a sitting head of state. Sudan criticized the ICC as a “neo-colonialist” and “anti-African instrument.” In the context of Darfur, the AU’s PSC criticized the indictment as an obstacle to the progress of peace in Darfur. In addition, the AU’s PSC requested the UN Security Council to exercise its powers under Article 16 of the Rome Statute to defer the indictment and arrest of Al Bashir. The UN Security Council refused to do so, which prompted the AU to adopt a resolution calling for the African states not to cooperate with the ICC in arresting Al Bashir on July 3, 2009 at the 13th Annual Summit in Sirte, Libya. So far, eight states parties to the Rome Statute have since welcomed Bashir on their territory and refused to arrest him.
The tension further escalated when the ICC’s pre-trial chamber authorized the Prosecutor’s request to investigate the 2007 election violence in Kenya in March 2010. This led to the indictments of, among others, former opponents Kenyatta and Ruto who, as a protest against the ICC, joined forces and got elected as President and Vice President of Kenya. The ICC trials of Kenya’s leaders spurred the AU to hold an extraordinary summit in October 2013 in Ethiopia. Subsequently, the AU requested a deferral of investigations and prosecutions in the situations of Sudan and Kenya. In June 2015, the AU established an Open-ended Ministerial Committee of Ministers of Foreign Affairs on the ICC to ensure that the decisions of the Assembly of the AU concerning the ICC are implemented. Moreover, the idea of mass withdrawal from the Rome Statute has been discussed by African states under the auspices of the AU and a number of states have started the withdrawal process recently.
Although much of the critique can be understood as political maneuvering to protect state sovereignty from outside interference, and in some cases to provide immunity to violent dictators, it is too simplistic to reject the critique. The ICC and its supporters make a valid argument that i) the ICC has been unable to prosecute elsewhere due to its limited jurisdiction, ii) that those situations that it investigated and prosecuted were situations of truly heinous crimes, iii) that these states were not themselves prosecuting, and iv) many states even referred their situations themselves. However, those making the critique submit that the way that international criminal justice functions, within the reality of geo-political considerations and limited jurisdiction and resources, still produces an image as if it would only be Africans that commit international crimes, and that it is only Africans that require outside help to address those crimes. And it is this image, or perception, that is experienced as reminiscent and reinforcing of colonial and racist relations between the West and Africa.
Deeper causes to the critique lie also in the reality that an international criminal trial of a small number of perpetrators cannot address the magnitude and complexity of the situation at hand, and thus can only modestly contribute to peace and justice rather than deliver it, as is also often the unhelpful image and expectations that is raised with regard to the ICC. As a consequence, the important additional transitional justice mechanisms that also address justice needs of victims and society are often marginalized or never occur. This is not something that the ICC can necessarily help, as it is a criminal court of law and by its nature and essence thus approaches a situation as such. However, because there are broader justice needs than the ICC is able to offer and limited abilities to otherwise remedy, the result is that the expectations are raised beyond what the ICC can do and disappointment the consequence, leading to discontent with the ICC and the international community at large.
Moreover, the functioning of the ICC and international community often fails to be sufficiently bottom-up. As ASP President Kaba noted in his address at the ASP’s 15th Session on Friday 18 November 2016, justice comes from below and cannot be handed top-down. This is inherently difficult, all sides recognize, but since calls for justice are the raison d’être of the ICC, as Kaba noted, it is important to keep working on how the ICC can function as best possible to allow their important contribution to meet those justice needs.
Addressing mass violence and contributing to peace and justice for the affected communities is an extremely important but also complicated process. It is therefore not surprising that the efforts to do so are far from perfect and raise critique. This critique is therefore not necessarily “African” as also the Netherlands noted in their submission on Friday 18 November. It has to do with the challenge that justice is not something that can be externally provided in a top-down one-size-fits-all-manner but at the same time usually welcomes the ICC’s or otherwise criminal trials as helpful contribution to these justice needs, which for organizational reasons to certain extent functions top-down and structured according to certain external rules. This is a paradox within which a careful balance need to be found, together with all involved. Moreover, it is important to understand that one court in The Hague with limited jurisdiction and resources is limited in its abilities to function differently and address victims’ justice needs fully. Therefore, rather than ignoring or denying and explaining exclusively how important the ICC is, the Assembly of States Parties (ASP) would serve the ICC best by taking the critique seriously, analyze how to address concerns, and find and build on the common ground all state parties have to address international crimes. This has also been the course that Chief Prosecutor Bensouda, the ICC’s Registrar Von Hebel and ASP President Kaba have taken during the 15th Session of the ASP and creates a more constructive and open environment in which there is space to search for ways to find common ground and solutions.
In the Fifteenth Session of the ASP, state party cooperation with the ICC is widely debated. Moreover, on 11 July 2016, the Pre-Trial Chamber II of the ICC referred to the ASP the non-cooperation of Republics of Uganda and Djibouti to arrest and surrender President Al Bashir to the ICC.
The criticisms and tensions between the ICC and Africa will continue in the foreseeable future. Burundi, South Africa and Gambia have recently announced that they will withdraw from the ICC and have taken steps thereto. South Africa for instance argued that the ICC is blocking peace processes by its position on head of state immunity and Gambia announced that it withdraws from the ICC because the ICC is targeting people of color. However, while these states are taking steps to leave the ICC, many other African states are using their diplomatic power to persuade states to stay, Gabon recently referred their own election violence to the ICC, and Mali and Niger cooperated recently with the ICC in the prosecution of Al Mahdi for destroying cultural heritage in Mali.
Most strikingly, the current and ongoing 15th Session of the ASP has seen a very critical yet constructive and open tone and discussion on these issues. While some states still express one or the other polarized positions (rejecting the ICC as “racist vehicle” or denying that the critique holds any merit), most states accept that there are concerns that need to be listened to. This has led for instance South Africa to strike a different tone in their submissions, submitting that they will take the 12-month period that it takes before their withdrawal would become final as a period in which they will work within the ASP structure to find solutions. In his address to the ASP on 18 November, President Kaba has been very clear in recognizing the critique and calling upon states to not withdraw from the ICC and use the ASP to work towards an ICC that better addresses the concerns that are raised and thereby strengthen its support and functioning.
To support this effort further, The Netherlands and PILPG are co-hosting a side event on Tuesday 22 November, 13:15-14:45 (in Everest 1&2) to address what underlies the critique and, on that basis, what this means on how to move forward, concretely, to regain support and legitimacy of the Court. The Representative of the African Union, the Office of the Prosecutor, an important voice of African civil society, and researchers of this topic will share their views on a roundtable panel. The event specifically invites others to join this discussion and share their view, to engage constructively on how to move towards strengthening the Court’s legitimacy and effectivity in doing its important work to contribute to the justice needs of those affected by mass violence.
 Assembly of states parties to International Criminal Court , The States Parties to the Rome Statute, available at : https://asp.icccpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.asp.
 Sanji M. Monageng, Africa and The International Criminal Court: Then and Now, in AFRICA AND THE INTERNATIONAL CRIMINAL LAW, 13-20 (Gerhard Werle, Lovell Fernandez, and Moritz Vormbaum, eds.)
 Mary Kimani, Pursuit of justice or Western plot? International indictments stir angry debate in Africa, AFRICA RENEWAL, Oct. 2009, available at http://www.un.org/en/africarenewal/vol23no3/233-icc.html.
 Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE, 2009 7 (2), p. 333 – 352, available at http://jicj.oxfordjournals.org/content/7/2/333.full.pdf+html.
 Extraordinary Session of the Assembly of the African Union, 12 October 2013, Addis Ababa, Ethiopia
 International Justice Resource Center, African Union Approves Immunity for Government Officials in Amendment to African Court of Justice and Human Rights’ Statute,
 Draft Protocol on Amendments to The Protocol on The Statute of The African Court of Justice and Human Rights, available at: www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf
 UN depositary notification C.N.1026. 2013.TREATIES-XVIII.10 of 14 March 2014 (Proposal of amendments by Kenya to the Statute)
 See The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation, Case No. ICC-01/11-01/11-344-Red, Judgment,( May 13, 2013), available at : https://www.icc-cpi.int/pages/record.aspx?uri=1599307., The Prosecutor v. William Samoei Ruto, et al., Case N. ICC-01/09-01/11-307, Judgment (Aug. 30, 2011), available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/09-01/11-307.
 Peace and Security Council Communique, para. 9, PSC/MIN/Comm(CXLII), (Jul. 21, 2008), available at http://www.iccnow.org/documents/AU_142-communique-eng.pdf.
 Zihag Liu, The Prosecutor vs. Omar al-Bashir, INTERNATIONAL POLICY DIGEST, Oct. 31, 2016, available at http://intpolicydigest.org/2016/10/31/the-prosecutor-vs-omar-al-bashir/.
 See footnote 12.
 Mia Swart and Karin Krisch, Irreconcilable Differences? An Analysis of the Standoff between the African Union and the International Criminal Court, African Journal of International Criminal Justice, 0 (2014), available at http://www.elevenjournals.com/tijdschrift/AJ/2014/0/AJ_2352-068X_2014_001_000_003.
 See footnote 13.
 ALJAZEERA, Gambia withdraws from International Criminal Court, Oct. 26, 2016, available at: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.