Diaspora Stories

Is the International Criminal Court Anti-Africa?

The International Criminal Court was founded in 2002, to investigate and, where necessary, prosecute individuals or bodies accused of crimes like genocide, war crimes, hate crimes, and others usually tagged “crime against humanity”. The Court is taking part in a global campaign to abolish injustice, and through international criminal law, it hopes to bring those guilty accountable, to help prevent similar reoccurrence in the future. 

African politicians were among the most ardent supporters of the ICC when it was founded. Nearly half of the first sixty states to ratify the Rome Statute (27 of 60) were African countries. In May 2002, the African Union’s precursor organisation adopted a resolution pushing its members to join the ICC. The African continent now has the second-largest bloc of States Parties. Furthermore, five incidents were self-referred to the ICC by African states.

However, in recent years, some African leaders are having a rethink about the ICC.

Since 2009, when the International Criminal Court issued an arrest warrant for Sudanese President, Omar al-Bashir, accusations of anti-African bias have gathered traction. This was because it was the first time an arrest warrant for a sitting president has been issued. Al-Bashir’s indictment was also the first time the United Nations Security Council (UNSC) brought a matter to the ICC. All matters before the ICC had previously been referred to it by member nations. In response to Al-Bashir’s indictment, Sudan urged the 34 African countries that have accepted the ICC’s treaty to withdraw in solidarity from the court. This was no insignificant request, as African governments make up the ICC’s largest regional bloc, and a wholesale exit would do major damage to the Court’s legitimacy.

The anti-African bias is founded on different grounds, one of which being the International Criminal Court’s (ICC) strict attention on crimes perpetrated by African leaders, but appears most times to have a lenient focus on worse crimes committed by leaders from other continents. The ICC’s investigations and prosecutions have been focused on African circumstances in the last ten years. 

The Court has issued arrest warrants to two African Heads of State and has fought African nations’ attempts to prevent ICC”s involvement in several cases. Furthermore, the Court has refused to look into alleged crimes committed in Venezuela and by British troops in Iraq. These and other steps have led to accusations that the ICC is unfairly targeting Africa, particularly among African political leaders.

Scholars have debated these points of view and used empirical evidence to back up their arguments. Some have even accused the Court of being a neo-colonialist institution pushing a Western agenda through ICC investigations and indictments to exert control over African politics. This negative view of the Court held by certain Africans and non-Africans, as well as some persons in countries where the ICC is active, should not be overlooked. 

Dissecting the way the International Criminal Court (ICC) has been authorised to examine conflicts has led to the identification of a more serious problem by some academics. Self-referral cases, such as those in the Democratic Republic of Congo and Uganda, have demonstrated that the ICC is prone to politicisation. The ICC appears to have consistently overlooked crimes committed by state agents in favour of those perpetrated by the state’s opponents. The ICC’s unwillingness (or inability) to hold all opposing parties accountable for their share of human rights crimes poses a serious threat to the Court’s credibility.

One counter opinion to the African bias paradigm is that African leaders are fully aware of the Rome Statute’s content because the latter made it clear that the Court has jurisdiction based on nationality and territoriality principles, as well as when the UN Security Council refers situations of heinous crimes to the ICC (Rome Statute, ‘articles 12 and 13). As a result, it may be argued that African leaders’ attacks on the ICC are only a pretext for avoiding accountability and transparency when it comes to human rights obligations. 

Many African leaders believe their political interests are more important than international justice, as seen by their desire to withdraw from the ICC. Leaving the ICC could, however, result in not only a huge departure of African states, but also the impunity of committing horrible atrocities in Africa. Following that, it has been observed that African leaders frequently resort to violence against their opponents to maintain control of the state. When they are accused of violating human rights, they assert their sovereignty or refuse to have their actions investigated and sanctioned by Western governments.

Despite these accusations, the ICC’s existence remains critical. Even though it has been challenged, it enables the application of international criminal law in situations where governments are unwilling to act. It is necessary and dissuasive justice.

“The Court is not flawless, but it is functioning and maturing,” says ICC former president, Judge Silvia Fernández de Gurmendi. As a result, the African Union and the international system are two critical partners in strengthening the ICC’s foundation, while also bringing justice to the numerous African victims of international crimes.

It is really in Africa’s interest to resolve any conflicts with the ICC, as the continent has remained the biggest gainer in the Court’s activities.