|Consultancy Africa Intelligence (CAI) is a South African-based research and strategy firm with a focus on social, health, political and economic trends and developments in Africa. CAI releases a wide range of African-focused discussion papers on a regular basis, produces various fortnightly and monthly subscription-based reports, and offers clients cutting-edge tailored research services to meet all African-related intelligence needs. For more information, see http://www.consultancyafrica.com|
Since its birth, the International Criminal Court (ICC) has had Africa as its most substantial client base. This can be interpreted as evidence of the poor governance systems that remain prevalent on the continent. On the other hand, it may present a bias in the Court’s focus on the region that offers the least resistance to interference in national criminal justice systems; after all, the United States of America (USA) is not a signatory to the Rome Statute that established the Court based on the argument of its robust domestic justice system. Reception to the work of the ICC has been varied as countries, including Côte d’Ivoire, Kenya, and Sierra Leone, have cooperated with the court while countries including Sudan and Zimbabwe have refused to work with it, with undertones of its use as a tool of the West. In addition, the Libyan National Transitional Council has been less than straightforward in its engagement of the court, as it has appeared to neglect its responsibility for trying members of the Gaddafi regime, including Saif al Islam Gadafi.
With the recent appointment of an African prosecutor, the Gambian Fatou Bensouda, this article focuses on the work of the ICC as it relates to Africa. The article analyses the ICC’s practice on the African continent, outlining its paradoxes and its prospects for the future.
The birth of the International Criminal Court
In 1998, the international community adopted the Rome Statute of the International Criminal Court to establish the first permanent international tribunal to try perpetrators of the most heinous crimes. The ICC was given jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression.(2)
The Rome Statute entered into force on 1 July 2002 and established a permanent, independent Court. As of 1 February 2012, 120 countries are States Parties to the Rome Statute. Of these, 33 are from Africa, 18 from Asia-Pacific, 18 from Eastern Europe, 26 from Latin America and the Caribbean, and 25 from Western Europe and North America.(3)
The court’s principal task is to investigate and prosecute cases of genocide, crimes against humanity and war crimes. What is often overlooked is that apart from its actual prosecutorial duties, the court must also carry out the investigations that lead to arrest warrants; domestically, these complex functions are usually carried out by the police force. The ICC only investigates or prosecutes individuals who are thought to have committed serious crimes against humanity.
The principle of complementarity in the Rome Statute stipulates that the ICC should back up national judiciaries rather than supersede them. The ICC can intervene only when national institutions are unwilling or unable to meet their obligations.(4) This would explain why the ICC could not intervene in Libya for Saif Al Islam Gadafi. This is also why the court often has thorny relationships with domestic Governments where state actors are suspected of committing atrocities such as with Sudan.(5) This is one of the many challenges of having such an international system of justice. If not backed up by domestic Governments, the court is actually powerless, leaving many suspects free to continue their crimes.
Some scholars and policy makers have suggested that for the court to become more effective, it should play more of an active role in encouraging Governments to fulfill their legal obligations(6) so as to prosecute cases domestically.
Africa’s exclusivity with the International Criminal Court
To date, the ICC has only pursued 26 individual cases on the African Continent for potential crimes committed in the Central Africa Republic, the Democratic Republic of the Congo, Kenya, Libya, Sudan (Darfur), and Uganda. There have not been any convictions yet. Sudan's President Omar al-Bashir was the first serving head of state to be indicted by the ICC for alleged war crimes in Darfur.(7)
More recently, the Prosecutor has also been examining the 2011 violence in Côte d’Ivoire, the 2009 military crackdown on opposition supporters in Guinea, and inter-communal violence in central Nigeria. The Côte d’Ivoire investigations led to Laurent Gbagbo becoming the first former head of state to stand trial at the court(8) to face four charges of crimes against humanity. His supporters are alleged to have committed murder and rape as he rejected Côte d’Ivoire’s election result and tried to cling to his decade-long rule.
These developments and others have raised numerous questions about the ICC and the role of international justice. On the African continent, many have accused the ICC of providing selective justice by only investigating atrocities committed there.(9) For instance, the African Union Commission Chairman, Jean Ping, said earlier this year (2012): “Frankly speaking, we are not against the ICC. What we are against is Ocampo's justice, what have we done to justify being an example to the world? Are there no worse countries, like Myanmar [Burma]?”(10)
Other criticisms stem from the fact that its actions risk prolonging conflict by jeopardising peace deals. This was specially the case with Côte d’Ivoire’s Gbagbo.(11) Many Ivoirians felt that putting Laurent Gbagbo on trial at The Hague and not in the country itself could leave opened wounds in the country.(12)
Prospects for the future
Gambian lawyer Fatou Bensouda has been officially elected as the next chief prosecutor of the International Criminal Court (ICC) and will become the first African to hold the top post at a time when the ICC is almost exclusively focused on the continent. Bensouda, a former senior legal adviser at the International Criminal Tribunal for Rwanda, which is trying key figures responsible for the 1994 genocide in the Central African state, got the job ahead of three other short-listed candidates.(13) Her appointment has been received positively by the African Union and on the African continent.
The question everyone is asking is how and if the election of an African prosecutor will have an impact on the ICC’s future as an international criminal court. Bensouda has been quoted as saying that her African background would give her an insight into the life and complexities on the continent, which would help be an asset for her job.(14)
However, those expecting Fatou Bensouda to suddenly stop investigating in Africa should not have high hopes. The future prosecutor has been unapologetic about the work of the ICC in Africa over the recent years. She was quoted as saying “We say that the ICC is targeting Africans, but all of the victims in our cases in Africa are African victims.”(15) Indeed, many victims of violence today are still found in the African continent; however, one must not forget other cases such as Afghanistan or North Korea amongst many others. If the court is workings towards justice and a more peaceful world, it must consider all cases across the globe.
The ICC has come a long way since its creation in 1998, yet it still has a long way to go. As an organ of peace and justice it must handle its current cases with care and efficiency, so as to truly become a meaningful and useful institution. Its current track record has been criticised for its heavily African ‘exclusivity’ and its possible impediments towards national reconciliation.
While the ICC as an entity is working towards ensuring peace and justice, it still faces many challenges by working at such international level of justice. The fact that powerful countries such as the United States or China have refused to recognise the ICC means that certain cases cannot be investigated unless the United Nations Security Council agrees.
The ICC should continue its work but should aim to assist in building national states and tribunal’s capacities to investigate and prosecute crimes at a domestic level. This would hopefully allow for lasting solutions to peace across the globe where atrocities against humanity are being committed.
(1) Contact Nayanka Perdigoa through Consultancy Africa Intelligence’s Conflict and Terrorism Unit (firstname.lastname@example.org).
(2) Kaul, H.P., 2005. Construction Site Fore More Justice: The International Court After Two Years. The American Journal of International Law, Vol. 99(2), pp. 370-384
(3) ICC website, http://www.icc-cpi.int.
(4) Waddell, N. and Clark, P., ‘Peace, Justice and the ICC in Africa’, Meeting Series Report, 8 March 2007, http://www.royalafricansociety.org.
(7) BBC Website, http://www.bbc.co.uk.
(8) Smith, D., ‘Laurent Gbagbo appears before international criminal court’ 5 December 2011 http://www.guardian.co.uk.
(9) Waddell, N. and Clark, P., ‘Peace, Justice and the ICC in Africa’, Meeting Series Report, 8 March 2007, http://www.royalafricansociety.org.
(10) Chothia, F, Africa's Fatou Bensouda is new ICC chief prosecutor, 6 December 2011, http://www.bbc.co.uk.
(11) BBC Website, 5 December 2011, http://www.bbc.co.uk.
(12) Maupas, S. and Rémy, J.P., ‘Laurent Gbagbo appears at The Hague to face trial’ 6 December 2011, http://www.guardian.co.uk.
(13) Chothia, F, Africa's Fatou Bensouda is new ICC chief prosecutor, 6 December 2011, http://www.bbc.co.uk
Written by Nayanka Perdigao (1)