BY CLEO MEINICKE, RESEARCH ASSOCIATE PILPG-NL
There is no doubt that Africa is at the center of attention of the International Criminal Court (ICC). The Court’s four successful convictions were all brought against African nationals and among the eleven on-going investigations only one is not on the African continent. This apparent selective bias has had an effect on the position of African governments towards the Court. In 2016, Burundi, South Africa and The Gambia notified their intention to withdraw from the ICC. Whereas Burundi went ahead with the plan in October 2017, South Africa and The Gambia rescinded their notifications.
But what about the domestic prosecution of international crimes within African states? This post looks at African States, the ICC, and the domestic prosecution of international crimes within Africa.
1. Africa and the ICC
While many African states were and are strong supporters of the creation of the ICC, several states developed opposite opinions in the past decade. Naldi and Magliveras argue that the African Union (AU) criticizes the abuse of jurisdiction by Western States, which is, according to the AU, selectively directed towards the African continent. In particular,he decision of the ICC Pre-Trial Chamber to issue an arrest warrant for Sudan’s President Al-Bashir, who in the view of the AU enjoys immunity from prosecution, was the reason for the AU to object to the jurisdiction of the ICC and urge its member states not to cooperate with the Court’s arrest warrants. This could be observed in several situations where Al-Bashir visited African member states of the ICC, such as Malawi, without being arrested there. Also the recent acquittal of the suspect Bemba had a negative impact on the perceived legitimacy of the Court and leaves African states with many doubts concerning the capability of the Court to deliver justice.
Against this background, the AU has established the African Court on Human and Peoples’ Rights (ACtHPR) in 2005. This court is often considered an alternative to the ICC, but does not have jurisdiction over international crimes, as its jurisdiction is limited to determining human rights issues. Also the yet to be established African Court of Justice and Human Rights will not be an appropriate alternative to the ICC. The Protocol on Amendments to the court’s statute provides heads of state or government immunity from prosecution in article 45Abis and the court would only have jurisdiction for crimes committed after its entry into force.
The critique by African states of the so-called “African Bias” remains an issue close to the ICC. During the last Assembly of States Parties in December 2018, a side event was organized to discuss ways to improve the relationship between the Court and the African continent.
2. Domestic Efforts
Despite this seemingly declining trust in the ICC, more than 60% (33 out of 54 states) of all African states have ratified the ICC Rome Statute as can shown in the following table. The table and the accompanying chart also depict the incorporation of international crimes in domestic laws across African States.
Overview of the ICC Rome Statute Ratification Status and Codification of International Crimes among African States
2.A. Codification of International Crimes
Many African states have implemented provisions criminalizing international crimes, which is the most basic precondition to prosecute offenders on a domestic level. Some states, such as Mauritius, South Africa and Ghana have repeated verbatim the definition of the crimes in the Rome Statute and other states solely refer to the Rome Statute, such as Kenya and Uganda.
Where no direct reference is made, definitions are still more or less based on the Rome Statute. Ethiopia extended the definition of genocide to also include political groups and groups of color in article 269 of its criminal code, whereas the criminal code of Burkina Faso allows in article 16 for an ad hoc determination of the group while still stating the limited list of groups provided by the Rome Statute. Looking at crimes against humanity, Kenyan law refers to article 7 of the Rome Statute in its criminal code section 6(4) but adds as reference conventional international law and customary international law. In contrast, in Burundian law, article 196 of its criminal code limits the scope of the crime by referring to the Rome Statute but adding the requirement that the crime is committed because the victim is a member of a “national, political, ethnic, racial or religious” group. Considering war crimes, many states, such as Uganda in its criminal code section 9(4), refer directly to the Geneva Conventions in addition to the Rome Statute. Thus, it can be seen that states do incorporate international crimes, but to a different scope and with differing definitions. However, as can be seen in the chart, more than half of the states in Africa have not criminalized international crimes sufficiently on a domestic level.
Some states such as Ethiopia, South Africa and Mauritania, criminalize the international crimes domestically despite the fact that they are not member states of the ICC (see table). This shows that non-ratifications of the Rome Statute does not equate to a reluctance to prosecute international crimes.
2.B. Domestic Prosecution of International Crimes
In addition to including laws on the domestic level, several states have shown positive progress in the implementation of the laws. In Uganda, on March 11, the trial of the former commander of the Lord’s Resistance Army (LRA), Thomas Kwoyelo, was continued at the High Court in Gulu, Uganda. Kwoyelo is facing 93 charges of crimes against humanity and war crimes committed between 1995 and 2005. In Rwanda, in October 2018, a new penal code was introduced that penalizes institutions for their support in genocide or crimes against humanity. In October 2018, the inaugural session for the Special Criminal Court in the Central African Republic took place. The court’s jurisdiction covers genocide, crimes against humanity and war crimes committed within the state. While this is not a purely domestic effort, it does present the state’s support in the prosecution of international crimes. In the Democratic Republic of the Congo, the Military Tribunal of South Kivu sentenced the commander of a unit of the Congolese army to life imprisonment for crimes against humanity in November 2018 for having attacked villages in the Kalehe territory (South Kivu). Very recently a Rwandan man was arrested in the Netherlands based on an arrest warrant that was issued by Rwanda. After two Rwandan fugitives were already extradited to Rwanda in 2016 by Dutch authorities, this is the third case. The issuance of arrest warrants depicts the states effort in prosecuting the suspects of international crimes.
To conclude, while some African states are critical of the work of the ICC, the data show efforts in developing legal bases to prosecute the crimes domestically. Laws have been drafted and trials commenced, but many states do not have any legal provisions and the general rejection of waiving immunity for international crimes runs counter to the goal of bringing justice to the victims, as leaders of states are in many cases the most responsible ones for the commission of atrocities. The continent is far from the goal to ensure accountability of perpetrators of international crimes reliably and consistently, but several states have taken steps in the right direction.