Reform: Government

 

Africa, the International Criminal Court and the Future of Prosecuting International Crimes in Africa: Re-examining a Frosty Relationship

 

By Henry Alisigwe and Chimere Arinze Obodo. Henry Alisigwe (Ph.D) is a Senior Lecturer at the Faculty of Law, Imo State University Owerri, Nigeria and currently a visiting Scholar at the University of The Gambia. His research interests include Public International Law, International Humanitarian Law, Human Rights, Law of The Sea and Law of International Institutions. His Email contact is This email address is being protected from spambots. You need JavaScript enabled to view it.. Chimere Arinze Obodo (LL.M Aberdeen) is a Lecturer at the Faculty of Law Imo State University Owerri, Nigeria and currently a Doctoral Researcher at Robert Gordon University, Aberdeen, Scotland. His research interests are in the following areas to wit: Public International Law, Human Rights, Social Justice, Access to Justice and Democracy. His Email address is This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Abstract

 

The African Union’s (AU) contemplated collective withdrawal of member states from the International Criminal Court (ICC) on February 1, 2017 gave rise to a widespread optimism that such would engender in more concrete terms the requisite number of ratifications needed to bring into life the Africa Court of Justice and Human and Peoples’ Rights whose protocol has been awaiting the requisite number of ratifications. The Resolution and continuing tardiness in ratifying the protocol on the African Court, while reinforcing doubts about Africa’s ability to prosecute for international crimes committed by her leadership is also a sad commentary on the ICC for its prosecutorial bias against the continent and her leadership. This is more so when ICC’s adventures in other continents are examined. However, it remains moot – given Africa’s poor leadership index – whether the ICC should be commended for giving attention to gross human rights violations or taking advantage of Africa’s weak institutional/governance structure and global position. It is the thesis of this paper that there is an obligation albeit erga ommes of all actors to facilitate the universal reach of the ICC even as the alleged biases are addressed without prejudice to an African quest to develop an efficient regional criminal justice delivery institution.

 

Introduction

 

Behind the discourse concerning the ICC’s effectiveness is an emerging accusation of bias against Africans.[1] The hint by three African countries to withdraw from the ICC is undoubtedly damaging.[2] To further amplify this notion, the African Union on February 1st, 2017 adopted a Resolution demanding that member states withdraw from the ICC based on the purported view that the ICC had unfairly targeted African leaders and undermined the sovereignty of African states.[3] It is not in doubt that states are within their legal rights to renounce the ICC because the Rome Statute of the International Criminal Court (parent treaty of the ICC, hereafter called the ‘Rome Statute’) permits states, through a written notification addressed to the Secretary-General of the United Nations to withdraw from the ICC.[4] However, any notice of withdrawal from a state party takes effect one year after the receipt of such formal notice of withdrawal by the United Nations Secretary-General.[5] This one-year hiatus allows the ICC jurisdiction to investigate and commence trials where necessary.[6] Of course, this ensures that a hoax withdrawal does not foreclose the ICC’s immediate jurisdiction where there is an established or alleged violation of international crime. Yet, the innovative significance of this provision cannot quell the damage to ICC’s reputation that may arise if the Africa Union withdrawal resolution is eventually implemented by member states.[7]

 

To assess the response of African leaders on the effectiveness of ICC, Kenyatta[8] in 2015 African Union Summit argued that his ICC trial affected his ability to fight against insurgency and an abuse of his immunity as a Head of State.[9] Meanwhile, Museveni of Uganda in his July 2016 inauguration speech labelled the ICC “a bunch of useless people”, and further counselled other African states to exit the ICC completely.[10] Furthermore, whereas nine out the ten countries under investigation are in Africa, the Democratic Republic of Congo (DRC), Central African Republic (CAR), and Uganda were self-referrals, and Sudan and Libya were referred by the UNSC, while Kenya, Cote d’Ivoire,[11] and Mali were referred by the Office of the Prosecutor.[12] Thus, regional and state judicial systems in Africa are decried as heresy in the prosecution of international crimes because they tend to embody normative or enforcement challenges that obstruct effective justice and accountability.[13]

 

The African regional system is faced with jurisdictional and procedural challenges of interpreting and enforcing international human rights laws.[14] The position on ICC prosecution of crimes against humanity and international crime has been amongst the areas which African leaders have made prominent. Instead of African leaders establishing an effective regional judicial system, they have rather constituted a clog in the effectiveness of the ICC against impunity and atrocities of some regimes within the region. To that effect, this study argues that a collective withdrawal from the ICC by African Union member states will heighten the impunities perpetrated within the continent. Accordingly, it opines that such resolution, in the absence of an alternative effective judicial system in Africa will aggravate the sufferings of victims of such international crimes and crimes against humanity. This will lead to an elimination of the only hope for redress to victims given the obvious weaknesses of enforcement institutions within the continent.[15]

 

 

Foundation and Framework of the International Criminal Court

 

The desire for the establishment of a permanent international court has been visible since the end of World War II.[16] Events following World War II evolved in the prosecution of some of Nazi and Japanese war criminals, and heralded a flicker of hope for an international judicial system.[17] Thus, the Rome Statute is the product of extensive efforts to commit states towards an international judicial system,[18] resulting from the successful outings of the Nuremberg and Tokyo tribunals respectively, as well as the ad hoc tribunals for the trial of Rwandan and Yugoslavian genocides.[19] Consequently, the Rome Statute created the ICC[20] as an international independent judicial institution for the trial of heinous international crimes,[21] such as crimes against humanity, genocide, and war crimes.[22] As a result of the first review of the Rome Statute, crimes of aggression have been added to international crimes under the ICC’s jurisdiction.[23] However, 30 states must ratify this amendment for this inclusion to come into effect. In addition to this, state parties will only make a positive decision to activate the jurisdiction after 1 January 2017.[24]

 

The Rome Statute is a landmark treaty in the prosecution of international crimes as it represents a departure from the ad hoc and special tribunal systems adopted prior to its emergence. The ICC jurisdiction excludes crimes committed before the coming into force of the Rome Statute.[25] Written in a neutral language, the Rome Statute has 128 articles contained in 13 uneven parts. Part 1 consists of articles 1-6, which contains the establishment of the ICC, the relationship of the ICC with the UN, and the seat of the ICC. Part 2 focuses on the jurisdiction, admissibility and applicable law. The general principles of criminal law are contained in part 3 in articles 22-33, which elaborates individual criminal responsibility, a statute of limitation as well as grounds for excluding criminal responsibility. Part 4 provides for the composition and administration of the ICC whereas articles 53-61 focuses on investigation and prosecution under part 5. Trial under the ICC is the focus of part 6 whilst article 76 addresses the issue of sentencing. Part 7 provides for penalties with articles 81-85 under part 8 focusing on appeals and revision of ICC decisions. International cooperation and judicial assistance are explained in part 9 in articles 86-102, which advocates member states obligation to assist the ICC in arrest, surrender, and investigation. Part 10 provides for enforcement of ICC decisions, with article 103 establishing the role of states in the enforcement of sentences of imprisonment. Assembly of state parties is contained in a single article part 11, whereas part 12 focuses on the financial obligations, regulation, and audit of the ICC. Finally, part 13 contains final clauses which comprises provisions for amendment, reservations, settlement of disputes, withdrawal, entry into force, and signature, ratification, acceptance, approval or accession. Abass describes the Rome Statute as a new set of international criminal law and a new judicial institution for the trial of international criminal offences.[26]

 

The ICC serves as a court of last resort in the fight to end impunity and grievous crimes, globally. Article 12 provides some expanded conditions on the jurisdiction of the ICC. Its jurisdiction covers crimes committed by State Parties[27] and non-State Parties where such state willingly accepts the court’s jurisdiction[28] or where a situation is referred to the prosecutor by the UNSC under article 13 (b). Emphatically, the persecutor has the power to initiate an investigation of crime within the jurisdiction of the ICC.[29] It is arguable that this power has not frequently been explored outside situations in the African continent. Mutua concluded that the ICC in the exercise of its duties assumes a universal jurisdiction over most egregious offences.[30] Article 1 of the Rome Statute establishes the complementary role of the ICC to national criminal jurisdictions. Clapham described this complementary role as a recognition of national courts, in which priority must be given before submitting to the jurisdiction of the ICC.[31] The complementary article is intended to preserve the Court’s power over irresponsible states that refuse to prosecute those who commit heinous crimes.[32] The provisions act as an alternative to seemingly weak national judicial institutions across the globe.

 

The Rome Statute reiterates the consideration for the conduct of unbiased trial of crimes under Article 5 for state parties or on any other state through a special agreement. Simply put, the ICC effectively carries out this responsibility through four major organs: the Presidency, judicial arm, the Office of the Prosecutor, and the Registry.[33] Furthermore, while the ICC is not structurally part of the United Nations (UN) system, it retains a cooperative relationship with the UN for the attainment of international peace and security through an agreement that allows the United Nations Security Council (UNSC) to refer and defer situations to the Court.[34] Under article 42, the prosecutorial branch has the sole responsibility of receiving, investigating and examining referrals and information on crimes and the onward prosecution of suspected individuals. Accordingly, successful prosecutions by the ICC are largely dependent upon on the nature of its relationship with state parties. For example, under part 9 of the Rome Statute, state parties undertake to cooperate fully with the ICC in the investigation and prosecution of crimes within the ICC jurisdiction. Hence, state parties are mandated to ensure national law procedures are available for all manner of cooperation specified under part 9 of the Rome Statute,[35] and such include the surrender of persons to the ICC, arrest of persons, questioning of persons under investigation, identification and whereabouts of persons or items, service of documents, execution of searches and seizures, amongst others.

 

It is, however, not surprising that the approach of Rome Statute bodies is also an obstacle to its overall objective as some state parties have expressed their desire to invoke article 127 provision that allows withdrawal from the Rome Statute. For example, Russia, Burundi, Zambia, Gambia and South Africa have at one time or another expressed dissatisfaction with the ICC and indicated interest in withdrawal from the Rome Statute claiming bias or conflict with national interest and sovereignty.[36]

 

 

 

 

 

ICC and the African Experience

 

Although one-third of the ICC’s membership is from the African block, many of these states were also central in negotiating the Rome treaty.[37] In fact, 33 of 54 states in Africa form part of the overall 123 signatory countries to the Rome Statute.[38] Compared to their non-African counterparts, African leaders have gained more attention from the ICC, hence rendering them uncomfortable with its modus operandi. For example, the arrest warrant issued against serving Sudanese president in accordance with article 27 provision has been perceived as disregarding and disrespecting the President’s immunity. It is arguable that this decision has caused significant worry to African presidents whose leadership styles give rise to a possible indictment, arrest, and trial by the ICC.[39] Some other African Presidents are on the ICC investigation list,[40] and for this reason, African leaders could build a strong case that the ICC is targeting only Africans.

 

Africa has an unpleasant history of human rights abuse with many post-colonial states, having witnessed different kinds of armed civil and political conflicts.[41] Accordingly, a good number of African states have been engulfed in civil and political conflicts amidst weak incentives for justice and accountability under their national judicial institutions.[42] Despite this, the support Africa has shown to the ICC through case referrals has had some positive significance against the plethora of weak legal systems existing in many African states[43] – an impact centred on the legal obligation of states to the provisions of the Rome Statute. For example, Senegal was the first country to ratify the Rome Statute.[44] This gesture could be considered as a quest for justice against serious crimes at a time in history by some African states.

 

Mbaku noted that Africa was quick to embrace the Rome Statute due to its concern at preventing stronger political and economic nations from invading them.[45] Disadvantaged by prevalent civil and political instability, some African states lack capacity to deal with the numerous security and political challenges and eventual breakdown of law and order and efficient enforcement system. Against this background, African states sometimes enter into bilateral and multilateral agreements with developed and industrialised nations, international organisations and multinational corporations for their economic, civil and political development.[46] Some international bodies exhibit inequalities in their political and structural organisation. For instance, the non-inclusion of any African states among the permanent members in the UNSC denies the continent the right to veto decisions on the use of force against states in the region.[47] Even when some permanent member states of the UNSC are not state parties to the Rome Statute,[48] they can influence organisations and their outcomes through their power of veto,[49] thus giving UNSC permanent member states the opportunity to act within and outside the legal ambit of the Rome Statute.

 

The imbalance in the UNSC has affected the ICC because under the Rome Statute, the UNSC has the power to refer cases to the prosecutor.[50] For example, UNSC referred Libya and Sudan to the ICC, leading to the ousting of President Ghadaffi in 2011. The fact that other situations such as Syria and Israel have not been referred to the ICC present a strong argument to support the claim of bias against Africa.[51]

 

There are good reasons to have an unbiased and efficient ICC especially for the fact that victims of atrocities anywhere in the globe want justice. As said earlier, Africa has experienced a significant number of atrocities under the jurisdiction of the ICC ranging from genocide to mass murder, extermination, enslavement, torture, rape, crime of apartheid, enforced disappearance of persons, inhuman acts causing great suffering, or serious body injury or to mental or physical health, war crimes, and to crimes of aggression.[52] Ordinarily, this would make Africa a natural focus for the ICC and a reason why the complaint of bias from the ICC as propelled by the African political elites who are intertwined with some of these atrocities has continued to thrive. For the victims of these atrocities in Africa, justice served by anyone is what matters most.

 

However, Africa has a genuine case, and this deals more with its observation that the eight convicted defendants at the ICC are Africans from situations in Kenya, Uganda, Libya, Mali, Sudan, CAR, DCR, and Cote d’Ivoire.[53] The need for the ICC to act in a just manner cannot be described as an aspiration of Africa alone, especially in instances where powerful states act with utmost impunity and are not held accountable – for example, the role of the United States of America and the United Kingdom in the invasion of Iraq and war crimes committed thereupon. In another recent development, soon after the UN General Assembly started an investigation on atrocities committed by Russia in the occupation of Crimea, Russia immediately pulled out of the Rome Statute.[54] Failure of the ICC to expansively address situations committed by powerful states and in other continents such as Afghanistan, the Israel/Hamas/Palestine conflict, and the ongoing Syrian war has amplified the establishment of bias against Africa. For one thing, this development leaves a wrong impression about the ICC and will consequently affect ICC’s functions, more especially, given that its effectiveness lies in the interplay and cooperation with the state parties.[55]

 

At the same time, it is important to remember that in four situations before the ICC – Uganda, Mali, CAR, and the DRC, the states on their volition referred the cases to the ICC under article 14 whereas, in situations pertaining to Kenya and Cote d’Ivorie, the ICC on its impulse through the prosecutor initiated the cases. Mbaku described instances of referrals by some African states as a costume to avoid challenged leadership from certain leaders of armed groups.[56] For instance, President Museveni of Uganda who previously referred the Lord’s Resistance Army case to the ICC is today one of the leading voices in the crusade for African exit from the ICC. Therefore, what this entails is that state referrals cannot be interpreted as full acceptance of the international criminal justice system of the ICC by African political elites.

 

Although the movement for mass exit of African states out of the ICC is rife within the political elites, it is unequivocal that facts establishing the innocence of accused persons have never been raised or evidential existence of alternative efficient justice within the region. Besides, some African leaders overtly ensure that domestic apparatus for accountability are weakened and ineffective amidst absence of a regional judicial system for prosecution of international crimes.[57] For this reason, the ICC has maintained that although the prosecution of Africans are higher than those of other continents, what the ICC has always targeted is impunity and not Africans. The understanding of this gesture could be that violations of Rome Statute provisions are taken more seriously when situations concern Africa. In fact, the complexity of such ideological differences reaches its extremes if one argues that victims of impunities outside Africa are irrelevant and inconsequential compared to victims within the African region.

 

It is noteworthy that African states where widespread armed conflicts are ongoing or in early post-conflict years will understandably have weak judicial institutions to provide justice. Whereas this may be the case in countries such as Libya, South Sudan, and the CAR, it is however clear that many African states have enacted national legislation implementing the provisions of the ICC.[58] Accordingly, such domestic enactments demonstrate the extent to which African states are willing to bring justice to victims and further hold perpetrators accountable for the most serious crimes of international concern.[59] However, the extent to which countries have implemented these domestic laws is not the subject of this literature.

 

Africa, International Criminal Court and the Way Forward

 

Since the issuance of the first arrest warrant against Al-Bashir of Sudan in 2009 by the ICC, the relationship between the African Union has continued to worsen. Even with the legality of this warrant under article 27, the AU denounced this move for these two reasons: an impediment to AU’s peace efforts in Sudan, and an affront against the international customary rule on immunity of sitting heads of states.[60] State parties to both the AU and the Rome Statute have continued to react differently to the strained relationship between the AU and ICC. For instance, whilst Nigeria and Senegal are openly opposed to the AU resolution to withdraw from the ICC; South Africa, following immense pressure from organised civil society agreed to arrest Al-Bashir if he visited the country for President Zuma’s inauguration. Further, in 2011, President Mutharika of Malawi hosted Al-Bashir when he attended Common Market for Eastern and Southern African States summit relying on AU’s resolution against ICC’s arrest warrant and the fact the Sudan was not a party to the Rome Statute.[61] Subsequently, the ICC in accordance with articles 86, 87(7) and 89 of the Rome Statute, admitted that Malawi failed in its obligation by not cooperating with the ICC by arresting and surrendering Al-Bashir to the ICC, thus ordered the Registrar to transmit the decision to the UNSC through the Secretary-General of the UN and, to the Assembly of State Parties to the Rome Statute for further action.[62]

 

Although the question of immunities is central to the AU more so, after the second arrest warrant against Al-Bashir in 2010 and subsequent investigation and trial of President Kenyatta of Kenya and his deputy, William Ruto, article 27 of the Rome Statute is a clear case of an exception to customary international law on immunities to heads of state and some of their senior officials.[63] This perception needs to be sustained and supported by states and stakeholders if the ICC can efficiently continue as a safety net where domestic institutions fail to provide justice to victims of atrocities.[64] Besides, African state parties to the Rome Statute have waived the rights to immunities of their political elites and leaders by their membership to the ICC. This is more so given that the core objectives of the Constitutive Act of the African Union include encouraging international cooperation; promotion of peace, security and stability on the continent; and, protection and promotion of human rights.[65] Critiques of the African Constitutive Act objectives have centred on implementation by both regional and domestic institutions, which have generated debate on the multifaceted challenges encountered in the efficient implementation of article 3 provisions of the AU Constitutive Act.[66] However, the case against Sudanese President has proved that non-membership of the Rome Statute cannot bar a country from ICC prosecution because any UN member state can be referred by a UNSC resolution.

 

Obligations of the state parties to completely adhere to Rome Statute provisions can be arduous and complex in a world characterised by differing legal systems, and a lack of political will to adhere to their commitment.[67] Even as the AU resolution appears to have failed for now, it is unclear whether the AU has a legal justification to order its member states to withdraw from their obligations under international treaties which AU member states independently and voluntarily entered into. This is increased in the absence of an alternative African mechanism to deal with challenges and problems posed by the enforcement against international crimes. Rather, state parties should be encouraged to take positive and corrective action by domesticating the Rome Statute to guarantee justice to victims of atrocities and reduce acts of impunity by political elites and non-state actors. Such action must be taken to give effect to ICC compliance with article 1 provision of the Rome Statute on complementing national criminal jurisdictions. Hence, the fundamental feature of the ICC is that it assumes jurisdiction over cases where domestic courts are unable or unwilling to genuinely prosecute perpetrators of most serious crimes in their domestic courts.

 

Article 1 of the Rome Statute gives state parties a choice to prosecute their own, or they will be tried at the ICC at The Hague in the Netherlands.[68] Both domestic and regional judicial institutions have a vital role where they are available. Thus, the AU and its member states even if they have a good case against the ICC should show more empathy for the promotion of justice against impunity. An effective regional criminal court will end Africa’s displeasure against the ICC.

 

African Court of Justice and Human and Peoples Rights

 

The friction between the AU and the ICC has culminated in the amendment and retaliatory conferring on the African Court of Justice and Human Rights (ACJHR) with international criminal jurisdiction.[69] The ACJHR as suggested by the then AU Chairperson, President Obasanjo of Nigeria, is a proposed merger of the existing African Court on Human and Peoples’ Rights and the Court of Justice of the African Union. The Protocol on the Statute of the African Court of Justice and Human Rights (parent statute of the ACJHR) was adopted in 2008 and has so far been ratified by six out of fifteen states needed for it to come into force.[70]

 

However, an amendment to the merged parent statute of the ACJHR by AU Commission which is meant to midwife the African Court of Justice and Human and Peoples Rights[71] when adopted will confer upon the ACJHPR jurisdiction over international crimes such as genocide, crime against humanity, war crimes, piracy, and terrorism.

 

This radical change in the African regional judicial landscape commenced in 2010, following AU introduction of a new legal instrument, the Protocol of Amendments to the Protocol on the Statute of African Court of Justice and Human Rights (Amending Merged Court Protocol).[72] As the process of amendment continues, a draft amended protocol was adopted by the African government legal experts, Ministers of Justice and Attorney Generals in May 2012. Although the potential effect of having a regional judicial institution with criminal jurisdiction is appreciated, it is indeed a matter of great concern. However, while it is correct to state that the efforts to establish regional courts in Africa predates the strained relationship between AU and the ICC, this merger according to President Obasanjo was due to the concern at the growing number of AU institutions, which many AU member state could not afford. [73]

Advantaged by the prevalent understanding of African political elites against the ICC, the AU Assembly may be bent on adopting the amendments to the Statute of the ACJHR. However, the underlying need for the ACJHPR to assume jurisdiction for international crimes was further boosted by article 25(5) of the African Charter on Democracy, Elections, and Governance,[74] with the requirement that AU formulates a novel international crime for an unconstitutional change of government. There are no doubts that some African leaders will support this proposal to specifically undermine the ICC, irrespective of whether the ACJHPR will be efficient in carrying out its criminal jurisdiction mandate.

 

Given Africa’s record of human rights atrocities and the slow or weak regional and national judicial systems, it has been argued that to develop a regional court with criminal jurisdiction will be an unnecessary duplication of the ICC that can at best give soft landing shield to tyrannical African leaders from justice.[75] Whilst there is nothing wrong with the issue of duplication, it cannot be established if such a move would supplant or completely undermine the ICC except if AU member states withdraw from the Rome Statute as proposed by the AU resolution. Thus, vesting the ACJHPR with international criminal jurisdiction is a worthy development to end impunity committed within the region if such court is efficiently and independently run without interference. Rather than condemn the proposed criminal jurisdiction of the ACJHPR as a confrontation with the international community or an unnecessary duplication, AU should be more concerned with the capacity to fulfil the ambitious tripartite mandate of the ACJHPR which extends to human rights, general affairs, and international crimes. Some related concerns should cover funding and staffing of the ACJHPR because a vast amount of money is required to run international criminal trials and the administrative task through adequate staffing. The impartiality and independence of the ACJHPR must always be guaranteed if taken as effective. Lastly, a relationship between the ACJHPR and the ICC must be considered given the large number of African state parties to the ICC, regarding primacy by AU member states. That notwithstanding, whether the ACJHPR will see the light of the day is not completely plausible given the present reluctance of many African countries to ratify the protocol on the establishment of the African Court of Justice and Human and Peoples’ Rights.

 

Conclusion

 

This study has looked at the interplay between the AU and ICC. In the context of the debate that the ICC process is selective and bias towards Africa, the article has attempted to explore whether Africa can find an African solution to cover its strained relationship with the ICC in relation to providing justice to victims of international crimes committed within its region. Undoubtedly, the increasing number of prosecution of Africans will continue to raise the debate by African political elites against the ICC. This debate will continue to evolve in response to ICC efforts to prosecute Africans suspected of international crimes within the jurisdiction of the Rome Statute, which is indicated by numerous human rights violations prevalent in many African states. On the other hand, an alternative court by the AU for the trial of international crimes could lead to the denial and suppression of justice to victims of international crimes if efficient and adequate measures are not considered to guarantee an impartial, independent, effective and well-funded ACJHPR. AU member states must therefore take steps to eliminate deficiencies in the administration of justice.

 

This article has also highlighted the challenges that must be overcome if AU decides to continue with imposing criminal jurisdiction to the ACJHPR. However, it is difficult to either accept or deny that the ICC has an African problem; rather it argues for the ICC to be equitable and unbiased in carrying out its treaty mandates. To a significant extent, until the relationship between the ICC and AU becomes clearer, whether AU’s resolution for collective withdrawal from the ICC would force the ICC to soft-pedal cannot be ascertained now. However, one thing is sure: the foundation and reputation of the ICC cannot be the same.

 

It is trite that the outcome of the AU’s resolution on the ICC is hinged on the lofty international idea of reducing prosecutorial impunity and bias against Africans, and promoting a culture of accountability and justice among all nations. There is a need for AU to realise that it can turn around Africa’s negotiating power with its numbers in international affairs. The resolution on the ICC is a test case. However, this article concludes that AU resolution on the ICC must purposely work towards eliminating safe havens for tyrannical African leaders and non-state actors seeking to evade justice.

 

 

 

 

 

 

 

 

 

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Ngari Allan ‘Africa’s ICC Concerns are Ignored at Everyone’s Peril ‘available at >https://www.issafrica.org/about-us/press-releases/africas-icc-concerns-are-ignored-at-everyones-peril<

Oloo Adams, ‘The Place of Africa in the International Community: Prospects and Obstacles’ (2016) Open Access Library Journal, Vol. 3, No. 1, available at >http://www.scirp.org/journal/PaperInformation.aspx?PaperID=69185<

Plessis Max, Maluwa Tiyanjana, and O’Reilly Annie, ‘Africa and the International Criminal Court’ (2013) available at >https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/0713pp_iccafrica.pdf<

‘Report on the First Review Conference on the Rome Statute’ available at >http://www.iccnow.org/documents/RC_Report_finalweb.pdf<

‘Review Conference of the Rome Statute’ available at >http://archive.iccnow.org/?mod=review<

‘Situations under investigation’, available at >https://www.icc-cpi.int/pages/situations.aspx<

‘The Politics of Departure: Africa and the International Criminal Court’, available at >http://reliefweb.int/report/world/politics-departure-africa-and-international-criminal-court<.

 

Statutes and Legislations

The Rome Statute

United Nations Charter of 1945.



 [1] Alebachew Enyew, ‘The Relationship between International Criminal Court and Africa: From Cooperation to Confrontation? (2015) Bahir Dar University Journal of Law, Vol. 3, No. 1; Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) European Journal of International Law, Vol. 24, No. 3, 933; Obiora Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections’ (2015) International Journal of Transitional Justice, Vol. 9, No. 1, 90; Anna Triponel and Stephen Peason, ‘African States and the International Criminal Court, A Silent Revolution in International Criminal Law (2010) Journal of Law and Social Challenges, Vol. 12, available at >https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1850358&rec=1&srcabs=1270369.&alg=1&pos=8< accessed 15 March 2017.

[2] The following countries have in the past hinted its readiness to exit the ICC- South Africa, Burundi and Gambia. Whereas Thirty-Four African countries are parties to the ICC Rome Statute, the most damaging and surprising is South Africa whose role at the drafting stage ensured Apartheid was recognised as a crime against humanity. See ‘The Politics of Departure: Africa and the International Criminal Court’, available at >http://reliefweb.int/report/world/politics-departure-africa-and-international-criminal-court< accessed 07 November 2016.

[3] BBC News, February 1, 2017, ‘African Union backs Mass Withdrawal from the ICC’ available at >http://www.bbc.com/news/world-africa-38826073< accessed 26th March 2017.

[4] See article 127 of the Rome Statute.

[5] See article 127 of the Rome Statute.

[6] See generally article 127 (2) of the Rome Statute.

[7] It is worth mentioning that Nigeria and Senegal were opposed to AU resolution to withdraw from the ICC. See generally, BBC News, February 1, 2017, ‘African Union backs Mass Withdrawal from the ICC’ available at >http://www.bbc.com/news/world-africa-38826073< accessed 26th March 2017.

[8] The President of Kenya and the first serving President to appear before the ICC.

[9]Aljazeera news, ‘ICC Debate: Africa Vs ‘Infamous Caucasian Court’?’, available at >http://www.aljazeera.com/news/2016/10/icc-debate-africa-infamous-caucasian-court-161028142708060.html< accessed 08 November 2016.

[10] See ibid. 

[11] Cote d’Ivoire was not a signatory to the ICC when it was referred to the ICC but it nevertheless, accepted ICC’s jurisdiction over it. 

[12] Nine out the ten countries under investigation are in Africa, and the court has 10 preliminary investigations elsewhere in the world including Colombia, Ukraine, Palestine, and Iraq. See ‘Situations under investigation’, available at >https://www.icc-cpi.int/pages/situations.aspx< accessed 7 November 2016.

[13] Frans Viljoen, ‘A Human Right Court for Africa and African’ (2005) 30 Brook Journal of International Law 1; NsonguruaUdombana, ‘Towards the African Court on Human and Peoples Rights: Better Late than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45.

[14]Oji Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for More Effectiveness’ (2007) 13 Annual Survey of International and Comparative Law; Morris Mbondenyi and Nixon Sifuna, ‘A Review of Procedural and Jurisdictional Challenges in Enforcing International Human Rights Law under the African Charter Regime’ (2006) Berkeley Legal Press, available at >http://law.bepress.com/expresso/eps/1869/< accessed 26 March 2017; Richard Gittleman, ‘The African Charter on Human and Peoples' Rights: A Legal Analysis’ (1988) Virginia Journal of International Law, vol. 22 No. 4, 667; MakauMutau, ‘The African Human Rights System: A Critical Evaluation’ (2001) United Nations Development Programme, 12; Frans Viljoen, ‘A Human Right Court for Africa and African’ (2005) 30 Brook Journal of International Law 1; Nsongurua Udombana, ‘Towards the African Court on Human and Peoples Rights: Better Late than Never’ (2000) 3 Yale Human Rights and Development Law Journal 45.

[15] This argument is supported following the level of ratification of the Protocol to the Establishment of the African Court on Human and Peoples’ Rights, more especially, the Articles relating to access and jurisdiction.

[16] Alebachew Enyew, ‘The Relationship between International Criminal Court and Africa: From Cooperation to Confrontation? Op.cit (note 1 supra); Melissa Marler, ‘The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute’ (1999) 49 Duke Law Journal, 825.

[17] Sidhu Singh, ‘The Future of International Criminal Law: The International Criminal Court’ (2000) Touro International Law Review, Vol. 1.

[18] The Rome Statute was adopted in 1998 as the first permanent international tribunal to prosecute heinous crimes and by meeting Article 126 requirement, the Rome Statute came into force on July 1, 2002.

[19] Anna Triponel and Stephen Peason, ‘African States and the International Criminal Court, A Silent Revolution in International Criminal Law (2010) Journal of Law and Social Challenges, Vol. 12, available at >https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1850358&rec=1&srcabs=1270369.&alg=1&pos=8< accessed 15 March 2017.

[20] The Rome Statute was adopted in 1998 as the first permanent international tribunal to prosecute heinous crimes and by meeting Article 126 requirement, the Rome Statute came into force on July 1, 2002.

[21] See generally, Sixth session of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime, 2012. Serious international crime is defined in article 2 (b) of the Organized Crime Convention as meaning ‘conduct constituting an offence punishable by maximum of deprivation of liberty of at least four years or a more serious penalty’.

[22] See article 5-8 of the Rome Statute. 

[23] The first Review Conference of the Rome Statute was held in Kampala, Uganda in 2010. See generally, ‘Report on the First Review Conference on the Rome Statute’ available at >http://www.iccnow.org/documents/RC_Report_finalweb.pdf< accesses 07 April 2017;‘Review Conference of the Rome Statute’ available at >http://archive.iccnow.org/?mod=review< accessed 11 April 2017.

[24] Ibid.

[25] See article 11(1) of the Rome Statute.

[26] Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) European Journal of International Law, Vol 24, No. 3, 933.

[27] See article 12 (1) of the Rome Statute.

[28] See article 12 (3) of the Rome Statute.

[29] See article 13 of the Rome Statute.

[30] Makau Mutua, ‘The International Criminal Court in Africa: Challenges and Opportunities’ (2010) Norwegian Peacebuilding Centre NOREF Working Paper; Buffalo Legal Studies Research Paper No. 2011-003, available at >http://dx.doi.org/10.2139/ssrn.1684147< accessed 18 February 2017.

[31] Andrew Clapham, ‘Issues of Complexity, Complicity and Complementarity: From the Nuremberg Trials to Dawn of the New International Criminal Court’, in P. Sands (eds), From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge University Press, England, 2003) 63.

[32] Mohammed El Zeidy, The Principle of Complementarity in the International Criminal Law: Origin, Development and Practice (Martinus Nijhoff Publishers, Leiden 2008) 158; see also Article 17 (2) and Article 17 (3) of the Rome Statute.

[33] See article 34 of the Rome Statute.

[34] See article 2, 4, 13(b) of the Rome Statute; see also article 39-51 of the UN Charter; Ilias Bantekas and Susan Nash, International Criminal Law, (2nd Edition, Cavendish Publishing, 2003) 376.

[35] Article 88 of the Rome Statute.

[36] Bartram Brown, ‘The International Criminal Court in Africa: Impartiality, Politics Complementarity and Brexit’ (2017) Temple International and Comparative Law Journal, 145; The Guardian News, ‘Burundi Becomes the First nation to Leave International Criminal Court’, available at >https://www.theguardian.com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-international-criminal-court< accessed 14 March 2018.

[37] Africa has 34 signatories to the Rome Statute. The guardian, ‘African Union members back Kenyan plan to leave ICC’, available at >https://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-international-criminal-court< accessed 08 November 2016.

[38] State Parties to the Rome Statutes, available at >https://asp.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/african%20states.aspx< accessed 14 March 2018. Burundi officially withdrew from International Criminal Court with effect on Friday, 27 October 2017.

[39] Immunity of serving presidents was raised by South African authorities for not arresting and handing over Sudanese President, Al Bashir, and their subsequent declaration to withdraw from the Rome Statute. 

[40] Though Kenyan President, Kenyatta was the first serving Head of State to appear before the ICC, his charges have been dropped while his Deputy is still investigated. Sudan’s AL Bashir is still wanted at the ICC with two arrest warrants issued against him by the Court whereas Burundi president is under investigation.

[41] Many countries such as Nigeria, Liberia, Sierra-Leone, Uganda, Burundi, Congo, CAR, Kenya, Sudan, South Sudan, have in one time witnessed armed, civil and political conflicts. Many are still rated as failed states in the Fragile States Index, see >http://fsi.fundforpeace.org/rankings-2015< accessed 21 June 2017. 

[42] Ongoing crisis in Burundi, South Sudan, Central African Republic, Cameroon, Somalia, and many others.

[43] Obiora Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections’ (2015) International Journal of Transitional Justice, Vol. 9, No. 1, 90.

[44] Senegal ratified the Rome Statute on February 2, 1999.

[45]John Mbaku, ‘International Justice: The international Criminal Court and Africa (2014) The Bookings Institution? Africa Growth Initiative 9.

[46] Adams Oloo, ‘The Place of Africa in the International Community: Prospects and Obstacles’ (2016) Open Access Library Journal, Vol. 3, No. 1, available at >http://www.scirp.org/journal/PaperInformation.aspx?PaperID=69185< accessed 11 March 2017.

[47] Permanent members are China USA, UK, France and Russia; while the body has created for 10 non-permanent membership positions, these countries do not have veto power and only serve a non-concurrent 2-year term.

[48] The United States is a notable absence, and the recent withdrawal of Russia. With the power of veto, any UNSC permanent member state can stop any investigation by the ICC as evidenced in the Syria conflict when China and Russia voted against referral.

[49] R S Swagerty, ‘Power, Interest and Representation in Global Governance’, Paper presentation at the 2012 Annual Meeting of the Midwest Political Science Association, Chicago, April 12-15.

[50] See articles 2, 4 and 13 of the Rome Statute.

[51] John Duggard, ‘Palestine and the International Criminal Court: Institution Failure of Bias?’ (2013) 11 (3) Journal of International Criminal Justice, 563.

[52] See articles 6-8 of the Rome Statute. Countries that have experienced some of these atrocities include Rwanda, CAR, Burundi, Kenya, Somalia, Liberia, Cote d’Ivorie, amongst others.

[53] For more details, see International Criminal Court, available at >https://www.icc-cpi.int/cases#Default< accessed 16 November 2017. 

[54] Aljazeera news, ‘Russia pulls out from International Criminal Court’ available at >http://www.aljazeera.com/news/2016/11/russia-pulls-international-criminal-court-161116132007359.html< accessed 18 November 2016.

[55] See article 86 and 87 of the Rome Statute; it is worthy to note that any strained relationship between the Court and State Parties will affect investigation, arrest, the surrendering of suspects and prosecution functions of the Court.

[56] John Mbaku, ‘International Justice: The international Criminal Court and Africa op.cit (note 43 supra)

[57] See the situation in Burundi and CAR. However, human rights enforcement under the African Court of Human and Peoples Rights face both contextual and multifaceted challenges with impediments including but not limited to access to court, lack of independence of judiciary, maladministration, executive lawlessness and lack of political will to enforce judgments.

[58] Example of such countries include South Africa, Uganda, Kenya, Central African Republic, and Senegal.

[59]Anna Triponel and Stephen Peason, ‘African States and the International Criminal Court, A Silent Revolution in International Criminal Law’ (2010) Journal of Law and Social Challenges, Vol. 12, available at >https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1850358&rec=1&srcabs=1270369.&alg=1&pos=8< accessed 15 March 2017.

[60] Max Plessis, Tiyanjana Maluwa, and Annie O’Reilly, ‘Africa and the International Criminal Court’ (2013) available at >https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/0713pp_iccafrica.pdf< accessed 16 November 2017.

[61] However, President Banda of Malawi in 2012 agreed to arrest Al-Bashir if he attended AU summit in the country.

[62] Decision against Malawi pursuant to articles 86, 87 and 89 of the Rome Statute available at >https://www.icc-cpi.int/CourtRecords/CR2011_21722.PDF< accessed 16 November 2017.

[63] Philomena Apiko and Faten Aggad, ‘The International Criminal Court, Africa and the African Union’ Discussion Paper number 21 for European centre for Development Policy Management (November 2016), available at > http://ecdpm.org/wp-content/uploads/DP201-ICC-Africa-AU-Apiko-Aggad-November-2016.pdf< accessed 14 March 2018.

[64]Makau Mutua, ‘The International Criminal Court in Africa: Challenges and Opportunities’ (2010) Norwegian Peacebuilding Centre NOREF Working Paper; Buffalo Legal Studies Research Paper No. 2011-003, available at >http://dx.doi.org/10.2139/ssrn.1684147< accessed 18February 2017.

[65] See article 3 of the Constitutive Act of the AU.

[66]Kindiki Kithure, ‘The normative and institutional framework of the African Union relating to the protection of human rights and the maintenance of international peace and security: A critical appraisal’ (2003) 3 African Human Rights Law Journal, 99; Carolyn Martorena, ‘The New African Union: Will it Promote Enforcement of the Decisions of the African Court of Human and Peoples’ Rights?’ (2008/2009) George Washington International Law Review, 583; Nsongurua Udombana, ‘Can a Leopard can its spots? The African Union Treaty and Human Rights’ (2002) 17 American University of International Law Review, 1177; Gabriel Amvane, ‘Intervention Pursuant to Article 4 (h) of the Constitutive Act of the African Union Without United Nations Security Council Authorisation’ (2015) 15 African Human Rights Law Journal 283; Magnus Killander and Bright Nkrumah, ‘Human Rights Development in the African Union During 2012 and 2013’ (2014) 14 African Human Rights Law Journal 275.

[67] Allan Ngari ‘Africa’s ICC Concerns are Ignored at Everyone’s Peril ‘available at >https://www.issafrica.org/about-us/press-releases/africas-icc-concerns-are-ignored-at-everyones-peril< accessed 18 November 2016.

[68] Article 3 provides that the seat of the ICC shall be at The Hague, in the Netherlands, even though the Court may sit elsewhere whenever it considers it desirable.

[69] It succeeded the African Court of Justice and Human rights (ACJHR) See also, Ademola Abass, ‘The Proposed    International Criminal Jurisdiction for the African Court: Some Problematic Aspects’ (2013) Netherlands International Law Review, 28.

[70] The following states have ratified the ACJHR- Mali, Liberia, Burkina Faso, Benin, Congo, and Libya.

[71] Hereinafter called ACJHPR

[72]  For a full text of the merger protocol and statute of the African Court of Justice and Human and Peoples’ Rights. See www.issafrica.org/anicj/upload/protocol_on_the_statute_of_the_ACJHPR.pdf. Accessed on 10/3/2018

[73] Michael Ogwezzy, Challenges and Prospects of the African Court of Justice and Human Rights’ (2014) 6 Jimma University Journal of Law, 1.

[74] Adopted 30 January 2007 by the AU Assembly.

[75] Fred Agwu, ‘The African Court of Justice and Human Rights: The Future of International Criminal Justice in Africa’ (2014) 6 Africa Review, 1.