Perspectives #01/2012: A Fractious Relationship - Africa and the International Criminal Court

The launch of the International Criminal Court (ICC) on 1 July 2002 provided the international community with a permanent global tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes. Building on the work of the ad hoc tribunals for Rwanda and the former Yugoslavia that were established by the United Nations in the 1990s, the creation of the ICC stemmed from the growing international desire to end impunity of those responsible for most serious crimes.

Ten years into its existence, the Court handed down its first judgment on 14 March 2012 – finding Thomas Lubanga Dyilo guilty of conscripting child soldiers in the conflict in the eastern region of the Democratic Republic of Congo (DRC). The decision was rightfully celebrated around the world as a milestone for international criminal justice and demonstrated the Court’s determination to end impunity and secure accountability for grave violations. It, however, also provided further fuel to those who hold the notion that the ICC unfairly targets African leaders and that it, in the words of Rwandan President Paul Kagame, “was made for Africans and poor countries”.
Although there continues to be widespread popular support across the African continent for the ICC and its mandate to prosecute high-level individuals accused of perpetrating international crimes, strong anti-ICC sentiments are brewing among parts of Africa’s political elite and state actors.

Yet, if the Court is to work effectively and endure the tensions within international political system, it will need the continuing support of governments, and their citizens.

The African Union (AU) has become centre stage for the political contestation surrounding the Court. At a meeting in mid-May 2012 the Ministers of Justice adopted a draft protocol that brought a decisive step closer the realisation of an African Court of Justice and Human Rights invested with international criminal jurisdiction. Whether the African Court will be complementary or competitive with the ICC remains unclear. However, many observers are concerned that this initiative is less intended to advance the reach of international criminal justice but rather to frustrate the work of the ICC and possibly will provide a haven for Africa’s political establishment to escape accountability.

How the Africa-ICC imbroglio can be resolved admits of no easy answers. Some observers urge that the ICC has to become more nuanced in its communication with the African continent and improve its understanding about the political dynamics of the environments it is engaging with; the complexities of which are adeptly highlighted in George Kegoro’s analysis of the Court’s intervention in Kenya. Tim Murithi in his contribution even provokes that in order to prevent the AU-ICC relationship from complete collapse, the Court would need to stop only invoking its legal mandate and at times accept the political dimensions it is caught up in.

Others, like Nicole Fritz, emphasise that proactive complementarity - capacitating national jurisdictions in a way that they are able to try crimes incorporated in the Court’s Statute - is the most effective long-term policy response to ensure the best possible working of the ICC and international criminal justice.

Notwithstanding the contentious political dynamics surrounding the ICC, it is important to not lose sight of what the Court’s main purpose should be: to serve the interests of victims, including the thousands who survived the gravest crimes on the African continent. Those men, but more especially women and children, who still too often feel not enough cared for in the process of advancing justice as both the contributions by Ouattara and Scanlon remind us.

It is our hope that this edition of Perspectives will shed light on the diversity of the ongoing debates surrounding the ICC and inspire further discussion on ways of how to achieve a more collaborative relationship between Africa and the Court in order to ensure continent’s continued and meaningful involvement in the international criminal justice project.

Jochen Luckscheiter
Programme Manager