Considering Africa in the International Criminal Court
Editor’s note: Original article has been corrected to reflect that it was the ICC’s Pre-Trial Chamber (not the Office of the Prosecutor) which decided to end preliminary investigations into alleged war crimes.
Founded in 2002 to investigate and try war crimes, crimes against humanity, and genocide, the International Criminal Court (ICC) was designed to be “a gift of hope to future generations.” But less than twenty years after its inception the court seems to be at risk of disintegrating. The ICC has gained a reputation as an institution held over from the era of colonialism, targeting the crimes of African leaders while granting impunity to American and European ones. If the ICC fails to rectify this image, it will certainly lose the fight for international criminal justice.
Criticisms of the ICC are rampant, with accusations that the court is grossly expensive to operate, inefficient, and lacking ‘teeth’. But the stance that poses the greatest threat to the institution is the charge that the ICC unfairly targets African nations. Of the eleven situations currently under investigation by the court, ten of them involve African nations.
Part of this bias against African nations can be attributed to political realities. Many state-perpetuated human rights tragedies of the past decade including the genocide of the Rohingya in Myanmar and the mass atrocities committed during the Syrian civil war were carried out by states that are not signatories to the Rome Statute, and are therefore outside of the ICC’s jurisdiction. Comparable challenges have emerged when the court has pursued cases in other regions of the world. In April 2019, the ICC announced that it was ending preliminary investigations into alleged war crimes carried out by the Taliban and Afghan and American armed forces in Afghanistan — a decision that is being appealed by the Office of the Prosecutor. The ICC justified its decision by citing the case’s slim chance of conviction, but has been met with fierce accusations of putting American political interests over the pursuit of justice. For these reasons, it can be politically-convenient to prioritize crimes in Africa
The African bias issue came to a head in 2016 when Burundi, South Africa, and Gambia withdrew from the Rome Statue, calling the court “a political instrument and weapon used by the west to enslave” African nations. Although Gambia did later rejoin the ICC, Burundi is no longer considered a signatory and South Africa is in the process of formally withdrawing. The events of 2016 triggered fears of a mass African exodus from the ICC. Former UN Secretary General Kofi Annan warned against such a movement, reminding the International Community that Africa “was [the court’s] most enthusiastic supporter” at its founding. Three years on no additional states have signaled a retrenchment from the ICC, and it would seem that Mr. Annan’s fears are allayed. However, African leaders have continued to criticize the court. President Paul Kagame of Rwanda justified his country’s decision not to ratify the Rome Statute by calling the ICC “politics disguised as international justice.” Kenyan President Uhuru Kenyatta accused the institution of becoming “a tool of global power politics,” while Ugandan President Yoweri Museveni dismissed the court as “a bunch of useless people who should not be taken seriously.”
Fears of an African exodus may have been curtailed, but two new ICC announcements may disrupt that. On July 8, 2019 the ICC handed down a conviction for crimes against humanity against Bosco Ntaganda of the Democratic Republic of Congo. On the same day, international prosecutors announced their intention to seek a case against Al Hassan Ag Abdoul Aziz for war crimes and crimes against humanity in Mali.
The charges against Al Hassan and Ntaganda are significant, including sexual violence, mass killings, and conscription of child soldiers during the 2012 conflict in Northern Mali and the Union of Congolese Patriots massacres, respectively. The resolution of the Ntaganda case could actually be seen as a net gain for the ICC, which has historically struggled to secure convictions. But neither of these factors may influence African leaders who continue to see the ICC as a colonial remnant, remembering that Burundi and South Africa’s withdrawals were announced mere months after the ICC convicted Congolese leader Jean-Pierre Bemba (although his conviction has since been overturned). Particularly when the ICC has nine ongoing preliminary examinations outside of Africa, it is difficult for the court to combat allegations of targeting Africa, however justified those cases may be.
While other African nations have not followed South Africa and Burundi in exiting the Rome Statute, it is clear that leaders continue to be disillusioned with the ICC’s seeming focus on Africa. Whether or not the new developments in Mr. Al Hassan and Mr. Ntaganda’s cases renew the call for reform, the ICC must move beyond its post-colonial narrative if it is to remain a credible institution for international justice.