A fractious relationship: Africa and the International Criminal Court
August 6, 2012
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 the 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 celebrated, rightfully, around the world as a milestone for international criminal justice and demonstrated the Court’s determination to secure accountability for these grave violations. However, it also provided further fuel for those who hold to 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 sections of Africa’s political elite and state actors.
Yet, if the Court is to work effectively and endure the tensions within the 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 the realisation of an African Court of Justice and Human Rights invested with international criminal jurisdiction a decisive step closer. Whether the African Court will be complementary or competitive with the ICC remains unclear. Many observers are, however, concerned that this initiative is intended less to advance the reach of international criminal justice but rather to frustrate the work of the ICC and will possibly provide a means for Africa’s political establishment to escape accountability. How the Africa-ICC imbroglio can be resolved remains no easy task. Some observers urge that the ICC has to become more nuanced in its communication with the African continent and improve its understanding regarding 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, suggests that in order to prevent the AU-ICC relationship from complete collapse, the Court would need to stop simply just 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 greatest functioning 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, and more especially women and children, that are still too often left feeling uncared 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 to achieve a more collaborative relationship between Africa and the Court, in order to ensure the continent’s continued and meaningful involvement in the international criminal justice project. ...
Jochen Luckscheiter, Programme Manager