The International Criminal Court: ‘ending impunity for the perpetrators of the most serious crimes’, but only in Africa
Considered to be a court of ‘last resort,’ the International Criminal Court (ICC) is an intergovernmental organisation and international tribunal that seeks to prosecute the ‘most serious’ international crimes, such as genocide, crimes against humanity, and war crimes. Coming off the back of ad-hoc tribunals such as those in Yugoslavia and Rwanda, the ICC is the only permanent judicial body in existence that can try individuals for these crimes. However, although it was initially hoped that its founding in 2002 would usher in a new historical and political era in which the impunity gap for the most heinous international crimes would be closed, its twenty-year history has been plagued with difficulty. In fact, it could even be argued that the court is criticised more often that it is praised, with some arguing that the Office of the Prosecutor has too much power, and others maintaining that the court is inefficient and ineffective because it does not have enough authority and lacks the resources to enforce the laws prescribed by the Rome Statute, its founding treaty.
One criticism that transcends this binary, and that has gained traction in recent years, is that of bias. Indeed, critics on both sides have argued that the ICC is targeting Africa inappropriately, with former Kenyan president Uhuru Kenyatta going as far as to suggest that the institution itself should be seen as a “toy” of declining imperial powers because of its infringement upon the sovereignty of post-colonial states in Africa. Whilst such an assertion may seem absurd, a growing amount of evidence lends credence to the theory that Africa is the ICC’s ‘favourite customer’ (Igwe 2008). Indeed, over half of the seventeen situations currently under investigation at the ICC are in Africa and, just over five years ago, the court was investigating eleven situations, ten of which were in Africa.
Despite the early enthusiasm that many African countries displayed toward the ICC, embodied in both their signing and ratification of the Rome Statute and in their proclivity for self-referring situations within their countries, accusations of bias have strained the ICC-Africa relationship now more than ever before. In fact, in 2017, the African Union called for the mass withdrawal of member states from the ICC on the basis that the court unfairly targets Africans, with Burundi becoming the first country to withdraw its membership that same year. Nevertheless, it is important to note that there is no unanimous African position, with many African states, like Mali, continuing to emphasize the Court's important mandate.
There is a key point of rebuttal to the argument that the ICC is biased against Africa that merits consideration. It is often suggested that, because crimes have been committed in all of the African cases, they should be tried by the court. Indeed, this simplistic argument rests on the fact that the ICC has the principle of ‘complementarity’ as one of its founding concepts. Ultimately, because the court can only intervene in a situation where the national judiciary is either unwilling or unable to prosecute those responsible for crimes, the court’s intervention in African states is perfectly justifiable when it considers those states to be unable or unwilling to prosecute international crimes themselves. However, what this argument overlooks is the importance of perspective. Indeed, it might not actually be the case that African states are unable to investigate, but instead that their versions of justice do not align with those of Western nations that wield great power within the ICC itself.
Ultimately, then, regardless of one’s personal opinion of the ICC, there is no denying that its majority-African caseload is not good for optics. Although many, including former chief prosecutor Fatou Bensouda, who is herself African, firmly reject any idea of anti-Africanism of the ICC, it is important to be aware of the allegations. At least for now, there is no denying that the ICC is prioritising investigations in African states whilst crimes committed elsewhere are going unnoticed.
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The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the wider St Andrews Foreign Affairs Review team.
