Many observers and critics of the International Criminal Court (ICC) argue that the Court has focused entirely on Africa and needs to expand its investigations to other continents. In this light, some have cast the ICC as a colonialist tool specifically for Africa.
But while it is true that each of the individuals so far charged by the Court have been Africans, these arguments overlook the fact that African governments have been largely supportive of the ICC and were instrumental in its founding.
All of the eight active investigations at the ICC are African cases. In four instances — in the Democratic Republic of Congo, Uganda, the Central African Republic and Mali — the cases were referred to the ICC prosecutors by the countries.
In those situations where investigations were opened by the ICC prosecutor’s own volition, there was unanimous support from African governments. In Kenya for example, the prosecutor was given evidence of crimes allegedly committed during the 2007-08 Post-Election violence by an international commission established by the Kenyan government.
Even then, an investigation by the ICC was only formally opened after the Kenyan government failed to meet an agreed upon deadline for starting its own prosecutions.
Likewise, another investigation in La Cote d’Ivoire was supported by the Ivorian government, under the leadership of President Laurent Gbagbo which voluntarily accepted ICC jurisdiction in 2003.
The remaining investigations — in Darfur and Libya— were referred to the ICC prosecutor by the United Nations (UN) Security Council, with both referrals receiving support from African states sitting on the Council at the time.
Rather than seeking out cases on the African continent, the ICC opened investigations where it was asked to, and where grave crimes were being committed. As current ICC Prosecutor Fatou Bensouda has said: “The office of the prosecutor will go where the victims need us. The world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion.”
African support for the ICC
“My largest constituency is Africa and its state parties. I make every effort to liaise with them and be truly attentive to their concerns,” remarked Ambassador Tiina Intelmann, President of the Assembly of States Parties to the Rome Statute (the ICC’s founding treaty) recently. Her office has carried out exhaustive efforts to respond to any questions from African states, whether they are ICC states parties or not.
African countries have long supported the idea of an international criminal court. Members of the Organization of African Unity (OAU) and later the African Union (AU) were actively involved in the ICC’s creation. During the 1998 Rome Conference negotiations, OAU Legal Adviser Tiyanjana Maluwa gave two justifications for Africa’s interest in the ICC: the continent’s historical endurance of atrocities such as slavery and colonial wars, and the memory of the 1994 Rwandan genocide, where the international community failed to take preventative action.
In Maluwa’s words, these experiences “strengthened Africa’s resolve to support the idea of an independent, effective, international penal court that would punish and hopefully deter perpetrators of such heinous crimes”.
This resolve has carried through to the present. African states have routinely responded positively to requests for assistance by the ICC during the course of proceedings. They have facilitated investigations and provided crucial support to their conduct.
For example, just last month Rwanda, which is not a state party to the Rome Statute, cooperated in facilitating the transfer of ICC suspect Bosco Ntaganda to the Court. Furthermore, in July 2012, six West African heads of state attending a meeting of the Economic Community of West African States (ECOWAS) in Burkina Faso called for the ICC to intervene and conduct investigations of alleged crimes in northern Mali.
The fact is that several ordinary African citizens do not share the same opposing views as some of their leaders on the ICC. While attending an expert roundtable meeting on the African Union, the ICC and the United Nations Security Council (UNSC) in Addis Ababa in March 2013, I was asked why heads of state and senior government officials feel they are entitled to immunity from prosecution?
The AU and the ICC: a shaky relationship?
The AU’s relationship with the ICC is admittedly far from perfect. The AU has supported UN Security Council deferrals of the investigations in Darfur and Kenya, and most notably instructed member states not to act on the arrest warrant for Sudanese President and ICC suspect Omar Al-Bashir, arguing that he has immunity as a sitting head of state.
But that is not the whole story. It is important to bear in mind that institutional relations are complex and take time to develop. As a case in point, the relationship between the ICC and the UN was foreseen in the Rome Statute, but the negotiations of a draft relationship agreement as a basis for discussions between both organizations lasted for two years. No such provisions were foreseen for the relationship between the AU and the ICC, so some tension between the two may be expected.
The ICC Office of the Prosecutor has said that overall the relationship between the ICC and the AU has been very good. Between 80 and 90 percent of the ICC’s requests for cooperation are directed to African states, including to non-states parties, and to date none have been refused. One could argue that the Court’s current cases could not have proceeded without the support and cooperation of the AU’s member states.
Crucially, members of the AU have also begun to assert the need to abide by their obligations as members of the ICC over their membership in the AU. Countries such as Botswana, South Africa, Burkina Faso and Niger have publicly affirmed the need to arrest ICC suspects on their territory. During preparations for the July 2012 AU summit in Malawi, President Joyce Banda announced that the arrest warrant against President al-Bashir would be acted upon if he were to attend, which led to the relocation of the meeting to Addis Ababa.
Where states have been reticent to cooperate with the Court, African civil society has pushed the issue. In Kenya, for example, civil society groups worked through the Kenyan judicial system to assert the government’s obligation to arrest Al-Bashir.
Africans support justice
With 34 states parties and 43 signatories to the Rome Statute, Africa is one of the ICC’s largest bases of support. With Egypt’s recent expressions of interest in joining the Court, that support looks like it will continue to grow in the future. Likewise, the African continent is well-represented on the ICC’s staff. Several Africans hold key positions in the Court, including the chief prosecutor, 5 of the courts judges are African including the first vice president and deputy registrar. Out of a total of 658 permanent ICC staff, 144 are African nationals, representing 34 African nations.
Critics of the Court all too often discount this participation. When they do, they lose sight of the fact that Africans are not the victims of a biased ICC, but willful supporters of the Court’s mission to end impunity for the crimes from which they have too frequently suffered.
Finally, the Rome Statute states the ICC should select the gravest situations under its jurisdiction. It is not about regional or geographic representation, and its not a subject of high politics, it’s the law: where there are crimes falling within its jurisdiction that are not being addressed by national jurisdictions, under the new system of international justice, the Office of the Prosecutor should step in if the Court is to do what it was set up to do.
Those who argue that the court is targeting Africans should stop and think for a moment: there are more than 5 million African victims displaced, more than 40.000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of Africans raped. Should the ICC ignore these victims?
Arguably, it’s not about focusing on Africa; it is about working for the victims, and the victims are Africans. That is why the Court is a solution; its impartiality, its independence ensures the legitimacy of its intervention.
By: Stephen Lamony is a Senior Adviser at the Coalition for the International Criminal Court. The views expressed here are his alone and do not reflect the official position of the CICC.
You making an argument that the ICC is supported and endorsed by African governments is as old as colonialism and imperialism are.
Think about it. You seem to be happy that of the more than 650 ICC officials, 144 of them are Africans. While a few may consider this as the expectation – that Africans cannot be the majority shareholders in a Court that prosecutes their own people – I seriously disagree.
If anything at all the ICC will begin to win some real support from Africans themselves, not their governments, if the ICC for Africa was headed by and comprised of Africans!
Otherwise, it smells imperialism whatever way you slice it.
It seems that the ICC has become the Colonial Legislative Hand of the West on Africa.
We are also to blame. Like are chiefs who sided with them and sold many of our own people into slavery, I am not at all surprised that the present heads of state of this modern era Africa are following in the footsteps of those past idiotic chieftains.
The way I see it, the West also cannot seem to be able to get its hands of Africa. Perhaps it needs it in its own very survival.
Stephen Lamony seems to be making all the wrong arguments in favor of the International Criminal Court, of may I call it, the Court for the Prosecution of Africans.
I agree with Lamony if the point he’s trying to make is that, we need an independent Court in Africa to have oversight on African States. But Lamony seems to think that such an influential independent body can only come from the West.
It has to be put to the AU to make the necessary changes in this direction so that its citizens do not become international citizens who can be sought and punished by any organization or state outside the continent.
“Arguably, it’s not about focusing on Africa; it is about working for the victims, and the victims are Africans.”
Really? Really?? Really??? The only kind of victims that the world sees are in Africa? Only Africa has victims? What would happen if we formed an International Criminal Court with 80% of its officials Africans, to investigate crimes against African Americans in the USA, the world would cry foul!
Or better yet, why don’t we form the majority African Criminal Court to charge colonialists for crimes committed against Africans in Africa, in the past 400 years?
So even when the ICC cannot start bringing those colonialists to answer for their crimes committed against us why should African go to them so they can prosecute us for what?
We should have full control over whatever court prosecutes us! Whatever court brings Africans to book, brings Black people to book, must be comprised and controlled fully by Africans, or black people. Anything else is a new imperialism.