Global Court Wrestling in Africa

Global Court Wrestling in Africa©AFP/ SIMON MAINA
Sudan's President Omar al-Bashir attending the African Union summit in South Africa. The International Criminal Court has called for South Africa to arrest him in Johannesburg but the Sudanese President left the country monday
5 min 38Approximate reading time

The International Criminal Court (ICC) – the first permanent global court mandated to investigate and prosecute genocide, war crimes and crimes against humanity – has faced immense challenges since its inauguration in 2002. In particular, it has had to confront controversies over its singular focus to date on suspects in Africa and a series of hampered investigations and collapsed cases in which evidence has been weak or lacking.
At present there is scepticism among some commentators about the longevity of the ICC, given its difficult first decade. Such predictions are too hasty and neglect important signs of the increasing embeddedness of the ICC within key states’ and multilateral organisations’ legal and policy structures. 122 states are now signatories to the Rome Statute, including 48 that have joined since the Court began operations. These signatories are spread broadly across the globe, with 42 from Europe, 33 from Africa, 28 from the Americas, 17 from the Asia Pacific and 2 from North Africa/Middle East. The ICC is also central to many regional bodies’ frameworks for addressing mass conflict, for example the European Union’s Action Plan for the ICC.

Despite the global entrenchment of the ICC, however, four major issues have bedevilled its work so far and will continue to undermine its efficacy and legitimacy if left unaddressed. 


1. Weapon against the Weak

A recurring critique of the ICC is that it has become a political tool wielded by powerful states against weaker ones. Critics cite two factors as evidence of this: first, the ICC to date has focused only on situations and suspects in Africa and therefore cannot claim to be truly dedicated to global accountability; and, second, the Court has twice acted on referrals by the UN Security Council, three of whose members (the US, China and Russia) are not signatories to the Rome Statute. Some donor states have raised these concerns directly with the ICC prosecutor, who in various speeches and articles has responded to them at length.

These criticisms, which centre on the ICC’s credibility as a global, impartial institution, have generated considerable tensions between the African Union (AU) and the Court, particularly after the ICC indictment of Sudanese President, Omar al-Bashir, in July 2008, which Sudan (a non-signatory to the Court) and the AU interpreted as an attempt at regime change through international law. Similar tensions arose during UN Security Council debates in 2013 over the possible deferral of the cases against Kenyan suspects, including President Uhuru Kenyatta and Deputy President William Ruto.

These concerns will lead to continued pressure on the ICC prosecutor to bring charges against non-African suspects. Wanting to prove that the Court is an independent actor not beholden to global power politics, the prosecutor in the future may bring charges against suspects from one of the permanent Security Council members (some commentators hold out hope that the ICC’s current preliminary investigation into UK suspects of torture in Iraq will lead to this) or other perceived powerful states (such as Israel or Russia for their military action in Gaza and Georgia respectively). The ICC’s chronic resource limitations and reluctance to jeopardise key global political relations, however, will greatly complicate these endeavours.


 2. State Cooperation and the Dangers of Interference and Instrumentalisation

Despite the majority of the world’s states signing the Rome Statute, the ICC remains a weak institution, under-funded and heavily reliant on states to assist with evidence-gathering, protection of witnesses and the arrest and transfer of suspects. This limits the ICC’s effectiveness and leaves it vulnerable to either interference or instrumentalisation by the governments upon which it depends.

In the Kenyan situation, the national government has successfully obstructed the Court’s investigations by killing and harassing witnesses, denying access to government records and bank accounts and mounting a sustained public relations campaign against the Court. This interference forced the ICC prosecutor to drop the charges against President Kenyatta most recently, and previously those against former head of the Kenyan civil service, Francis Muthaura, for lack of evidence.

Meanwhile, the situations in Uganda and the DRC represent examples of states successfully instrumentalising the ICC for their own political purposes. To secure essential state cooperation, the prosecutor’s office launched lengthy negotiations with the Ugandan and Congolese states before they agreed to refer their situations to the Court. Having ‘chased’ these state referrals, the ICC was forced to negotiate the terms of its investigations with those governments. This explains why to date the ICC has not charged any Ugandan or Congolese government officials, despite the widely acknowledged complicity of state actors in atrocities. The ICC’s case selection in the DRC and Uganda has led to a perception among many affected communities that the Court is too closely linked to the governments in question, which in turn have used the ICC to target their political and military enemies – exacerbating the first problem regarding power politics identified above.


3. Continuing Use of Amnesties as Tools of Conflict Resolution

Many of the ICC’s supporters view the Court as ushering in a new era of global accountability. The entrenchment of the ICC within the international system, discussed earlier, entails a widespread norm regarding the need to prosecute, rather than give amnesties to, high-level suspects. The view that the advent of the ICC makes amnesties less likely – even illegal – poses major problems for actors involved in conflict-mitigating processes such as peace negotiations, demobilisation, disarmament and reintegration (DDR) and security sector reform (SSR).

For example, during the 2006-2008 Juba peace talks between the Ugandan government and Lord’s Resistance Army (LRA), the LRA threatened to abandon the negotiations unless the ICC arrest warrants against five of its leaders were removed. The presence of the ICC greatly complicates negotiations when armed parties such as the LRA leadership believe they will face ICC prosecution if they agree to lay down their arms. In some circumstances, this may convince belligerents to continue fighting rather than negotiating for peace.

Similarly, DDR and SSR processes – such as those in Afghanistan, Sudan and the Great Lakes region of Africa, which are supported by many of the same states and multilateral organisations that also back the ICC – often hinge on offering amnesties to senior combatants to convince them and their forces to disarm and demobilise. Increased calls to prosecute senior suspects may jeopardise the use of amnesties as incentives for these parties to participate in DDR and SSR. For these reasons, much greater clarity is needed regarding the conditions under which the ICC might desist from investigations and prosecutions for the sake of peace – or other broad objectives such as reintegration and reconciliation – and how it views its role vis-à-vis peace-related actors.


4. Complementarity and Relations with Domestic Justice Institutions

The ICC’s principle of ‘complementarity’, which is central to the Rome Statute, determines when situations and cases are admissible before the Court and when they should be handled by domestic institutions. In policy terms, the ICC also invokes complementarity to structure effective collaboration and cooperation with domestic bodies. To date, however, the ICC has often been perceived as competing with national institutions in various African states, seeking the prosecution in The Hague of suspects whom domestic actors wish to prosecute locally.

In this vein, in 2014 Libya successfully contested the ICC’s jurisdiction over Abdullah al-Senussi but lost a similar challenge regarding Saif Gaddafi. In the DRC, the ICC’s investigations have centred on the Ituri province where three of the Court’s indictees, Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, were already being investigated domestically for the same (and, in the case of Lubanga, even more serious) crimes when the ICC began operations in the DRC.

Since July 2003, the European Commission’s investment of more than US$40m in the Ituri judiciary has considerably increased local capacity.

This has led some observers to question the validity of the ICC’s strategy in Ituri, asking why a global court has focused its energies where the judicial task was already being addressed domestically. The impact of the ICC’s interventions in Ituri has been widespread disappointment among local judicial actors that, despite the major legal reforms of the last twelve years, they will not be able to prosecute major atrocity suspects in local courtrooms, where – as opposed to the ICC – affected communities can attend hearings and view justice being done firsthand, thus increasing confidence in the rule of law.

All of these challenges highlight that, while the ICC enjoys widespread support by states around the globe, it has so far struggled to navigate issues of power politics, relations with other actors mandated to address conflict and the complexities of investigating serious crimes in Africa (a continent in which few of the Court’s heterogeneous staff have extensive experience). Thirteen years into the ICC’s operations, it must start to address these issues systematically or risk losing the political support it has gained so far. Meanwhile, the challenge for the states that support the ICC is to give the Court the resources it needs or risk it becoming a shell institution.