The motivation for this two-part write-up originated in competitive debate, where ICC-Africa relations were a frequent topic of discussion. An international relations seminar course I took in first year gave me the opportunity to write a policy brief on the issue, from which this write-up was conjured. In Part 1, I dive into the history of the relationship between the ICC and Africa to set a context to a discussion on the present and future in Part 2.

Nature of the ICC and the ICC-Africa Relationship

As surprising as it may seem, African countries were among the strongest advocates for the ICC during its inception. In fact, as the African Union (AU) notes in retrospect, anger at the inaction of the global community in response to violence in Africa in the 1980s and 1990s led many African states to perceive the ICC as a “beacon of emancipation”. Understanding this context is crucial, as attempts to mend current ICC-Africa relations must acknowledge the disparity between the ICC’s practices and the court African states had intended to create. That is, it was the prospect of an independent Court and Prosecutor that mobilised Africa’s support for the ICC; the perceived failure of the ICC to remain impartial and independent has resulted in disillusionment and hostility towards the Court today.

To understand the ICC’s case selectivity, two ideas within the Rome Statute must be considered: complementarity (Article 17) and the Court’s exercise of jurisdiction (Article 13). First, the idea of complementarity entails that the ICC ultimately serves as a court of last resort. As stated in Article 17(1)(a), the Court should not admit cases unless the state “is unwilling or unable genuinely” to carry out the investigation or prosecution. While this principle in and of itself is legally sound, its practice has been shown to promote a double standard in international justice. In fact, complementarity, as outlined in the Statute, received criticism from renown lawyer Louise Arbour, Chief Prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia, who argued that Article 17 would lead to the disproportionate targeting of poor countries. While the Prosecutor might claim that the justice system in an underdeveloped state was ineffective and unable to carry out due process, the challenges in confronting a developed state with a functional justice system would be “virtually insurmountable”. In 2019, evidence from BBC and the Sunday Times revealed a British government cover-up of war crimes by British soldiers in Iraq. Even though zero prosecutions had been brought and the ICC acknowledged that war crimes had been committed, the Court’s final report concluded that the case “fell short of the standards” of complementarity. In this manner, complementarity privileges and disadvantages richer and poorer states, respectively, reinforcing perceptions of patent bias within the ICC. As a Rwandan official argued: “There is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there”.

Secondly, Article 13 outlines the three means through which situations may appear before the ICC: referral by a State Party, referral by the UNSC, or by proprio motu investigation (self-initiated by the Prosecutor). African states have expressed greatest concern at UNSC-referred and proprio motu investigations. Given the disproportionate influence of the veto conferred to the Permanent Five, the UNSC’s position within the functions of the ICC raises issues with regards to the impartiality with which cases are and are not submitted to the Court. Great power politics is evidently at play, as the politically sensitive nature of conflicts in areas such as Gaza and Syria would meet strong resistance by the United States, Russia or China, as active stakeholders of the conflict. Russia and China have publicly voiced opposition to an ICC referral regarding the situations in North Korea, and both powers vetoed a Resolution calling for Syria’s referral to the ICC in 2014. Furthermore, the Court is accused of aligning itself with Western interests, demonstrated by the speed with which Prosecutor Luis Ocampo opened a formal investigation into Libya in 2011, under pressure from the US.

The effects of great power politics are not limited to UNSC referrals alone, but further permeates and influences the Prosecutor’s general ability to handle situations and launch proprio motu investigations. David Bosco’s leading work, Rough Justice (2013), provides a conceptual framework to examine major-power behaviour in relation to the ICC. Importantly, Bosco describes how the United States adopted a “policy of active marginalization” against the ICC between 2001 and 2005, intended to attempt to limit the Court’s reach and authority. In 2020, the Trump administration authorised the use of asset freezes on ICC prosecutors investigating possible US war crimes in Afghanistan. Most developing states, in contrast, do not have the resources or soft power to exert such influence on the Court. Ultimately, the ICC’s proximity to the UNSC and its position within the partial reality of international politics thus constrains its ability to select cases fairly, resulting in the application of a different set of rules for richer and poorer states, respectively.

While the previous analysis focuses on the ICC’s prosecutorial bias, the subsequent discussion centres on another major source of discontent from African states: the perceived incompetence of the ICC and UNSC to dispense the appropriate form of justice in accordance with the domestic needs and concerns of African states. The AU has expressed concern at the impact ICC prosecutions could have on political stabilization, peacebuilding, and reconciliation efforts within areas of conflict. In the case of al-Bashir, the Peace and Security Council of the AU issued a communiqué expressing deep concern that the timing of the arrest warrant came at a “critical juncture” in the peace process, stressing that “the search for justice should be pursued in a way that does not impede or jeopardize the promotion of peace”. The ICC’s failure to adequately consider the very valid concern of AU presents an opportunity to rethink the way the ICC conceptualises the notion of “justice”: indeed, as South Africa’s Truth and Reconciliation Commission arguably demonstrated, alternative methods of accountability can be effective and desirable in specific political contexts. The UNSC’s reluctance to defer al-Bashir’s indictment and arrest under Article 16 of the Rome Statute furthermore added to anti-ICC sentiment. Importantly, two thirds of the international community had supported the AU’s deferral request; the UNSC’s failure to give it serious consideration arguably drove the AU to adopt its policy of non-cooperation towards the ICC.

Over the past decade, the ICC-Africa relationship has remained volatile. In 2014, the AU adopted the Malabo Protocol, which sought to extend the jurisdiction of the proposed African Court of Justice and Human Rights (ACJHR) to include international crimes, including those contained within the Rome Statute. The Protocol has yet to be ratified, but if it does, would effectively create a Pan-African regional court that could circumvent and replace the ICC’s work on the continent. The AU’s attempts create such a court is significant. Some scholars argue that it represents the desire of African states to “make the Court’s presence in Africa an irrelevancy in the future”. Furthermore, the creation of a so-called “Withdrawal Strategy” by the AU in 2017, which contemplated the prospects of an African collective withdrawal from the ICC, further indicated a deterioration in ICC-Africa relations.

Nevertheless, there have, correspondingly, been positive developments. The appointment of Fatou Bensouda, a Gambian national, as the Prosecutor of the ICC in 2011 was warmly welcomed by the AU. Her predecessor, Argentine lawyer Luis Moreno-Ocampo, had been frequently accused by African states for promoting a pro-Western agenda. Bensouda’s tenure from 2012 to 2021 was commended not only for an increase in investigations of situations outside Sub-Saharan Africa including Myanmar, Venezuela, and Palestine, but a willingness to probe the atrocities of major powers including Russia and the United States. Although the obstacles inherent in the Rome Statute ultimately impeded Bensouda’s ability to prosecute individuals from these countries, the willingness to expand the reach of the ICC nevertheless acted as an important first step in dispelling the perception of a neo-colonialist ICC fostered under Ocampo.

On a final note, it is worth considering that another major critique of the ICC by African countries involves an apparent contradiction between Article 27 and Article 98 of the Rome Statute, regarding the tension between the immunity afforded to senior state officials under customary international law and the jurisdiction of the ICC, especially as it relates to non-member states such as Sudan. In 2018, the AU announced its plans to request an advisory opinion on the matter from the International Court of Justice (ICJ). The AU’s appeal to the ICJ should be seen as a positive development in ICC-Africa relations, as it represents an attempt to settle disputes and controversies within the rubric of international law, unlike previous discussions of abandoning the Court altogether.

Given this context, the relationship between ICC and Africa remains fragile. The Court, under the new leadership of Prosecutor Karim A.A. Khan, sworn in on 16 June 2021, will need to tread carefully and give African states the confidence that the ICC is willing and able to engage constructively with the continent.