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 is 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.

The ICC’s Current Policy Towards Africa

Current strategies employed by the ICC should be assessed as positive but marginal contributions to mending ICC-Africa relations. Before discussing these strategies, it’s worth noting two ideas. First, that the ICC lacks a grand strategy to systematically improve its relations with Africa in the long term; current strategies may thus appear sporadic and uncoordinated. Second, the general attitude of the ICC towards Africa has remained static over the past decade. That is, that the same strategies have been employed repeatedly over time with marginal influence. The ICC’s current policy can be interpreted to mend relations in two ways: via state and civil society engagement and by giving African states greater involvement in judicial proceedings.

Since 2011, the ICC has convened a series of seminars and retreats with African states parties to the Rome Statute, held in Addis Ababa nearly on an annual basis. Given the fragility of the ICC-Africa relationship, such events aim to promote “frank dialogue and in-depth discussions relating to the mandate and activities of the ICC”. Additionally, over her tenure, Bensouda made visits to numerous African countries including Ghana, Nigeria and Sudan, as part of an “ongoing commitment to intensify engagement and dialogue with African states and relevant stakeholders, including African society and academia”.

While such attempts at dialogue are important in reframing perceptions of the ICC, it is important to realise that discussions can only be meaningful in the long run if the demands for reform arising from those discussions are realised. Unfortunately, the ICC has yet to meet the core demands and concerns of African states, as outlined in the Withdrawal Strategy, which proposes a range of constructive reforms to the ICC system. Having considered this, those who genuinely wish to improve the ICC’s relationship with Africa must realise the superficiality of engaging in dialogue as a primary means of mending relations. In particular, serious consideration must be given to amending aspects of the Rome Statute, which currently enable for the exercise of selective and ill-suited versions of justice.

The second part of the ICC’s policy involves the admission of amicus curiae briefs to the ICC’s Appeals Chamber. In 2018, the Appeals Chamber issued an order inviting the AU, among other regional bodies, to submit observations related to Jordan’s failure to arrest al-Bashir. The AU, eager to have a greater say in the Court’s judicial proceedings, had in previous years submitted amicus curiae briefs. Such initiatives by the Court to consult the AU are strategically important, as they demonstrate the Court’s willingness to seek advice from the continent, which perceives itself as being targeted by the Court’s prosecutorial process. However, given that such invitations are rare, it remains unclear whether such initiatives are a formal or deliberate strategy towards mending relations with Africa, or instead simply an attempt by the Court to seek out legal advice.

Current attempts on the part of the ICC therefore have positive but marginal effect on ICC-Africa relations. Combining the insights gained from the ICC’s current policy with an understanding of the nature and root problems of the current ICC-African relationship, the next section aims to propose a range of ambitious and pragmatic strategies for the ICC.

(Potential) Policy Prescriptions to the ICC

Policy recommendations are categorised as follows: changes to the Prosecutor’s conduct, internal procedural reforms of the ICC, and strategic initiatives intended to promote the effectiveness of the Court. Proposals within the first two categories are more ambitious and likely involve a longer timeline but have the potential to yield the greatest improvement in ICC-Africa relations. Proposals within the third category can be viewed as short-term goals which the ICC can and should pursue immediately.

Changes to the Prosecutor’s Conduct

First, the Prosecutor must acknowledge the imperfect reality of peacebuilding and reconciliation in conflict-ridden states, which may stifle the ability to administer justice, as is traditionally conceived. The Prosecutor should then be willing to apply an interpretation of Article 53 (initiation of an investigation) of the Rome Statute that balances between the dual considerations of peace and justice in such states and sequence its prosecutions accordingly. Seeking an advisory opinion from the AU will prove helpful given their regional proximity to the conflicts. The Prosecutor should thus be encouraged to engage in consultation with the AU before launching investigations into situations on the continent.

ICC Internal Procedural Reforms of the ICC

Second, the Assembly of States Parties (ASP) of the ICC should begin to actively consider amending aspects of the Rome Statute as proposed by African states. The Presidency and the Office of the Prosecutor (OTP) should promote, where possible, the discussion of these amendments, in recognition of the significant role they play in facilitating conversations surrounding such issues. States parties to the Rome Statute must recognise that Africa forms the largest regional bloc within the ASP; an inability to engage constructively to its genuine concerns could threaten, in the worst case, the dissolution of the ICC.

Outlined within the AU’s Withdrawal Strategy are several proposed amendments designed to address major grievances of African states. Two key amendments should be afforded particular attention. The first, submitted by South Africa, concerns a long-proposed amendment to Article 16 of the Statute, which would confer upon the United Nations General Assembly (UNGA) the authority to defer cases in situations where the UNSC fails to decide on a deferral request within six months. The UNSC’s refusal or indifference with regards to the AU’s request to defer the case of al-Bashir is a leading driver for African disillusionment of the ICC. Circumventing the UNSC with the UNGA will naturally limit the effect of great power politics and afford African states a more fair and honest consideration of its requests.

The second, submitted by Kenya, seeks to extend the principle of complementarity to regional criminal jurisdictions, building upon complementarity as is current in place in relation to national jurisdictions. The Prosecutor should seek to build a policy of “positive complementarity” and support the establishment and operations of regional jurisdictions such as the ACJHR, cognizant of the fact that the ICC was intended as a court of last resort. Positioning itself in this manner enables African states to perceive the ICC not as an imposition of Western solutions, but as a genuine counterpart complementing the continent’s cause for effective justice.

Such attempts at amending the Rome Statute will undoubtedly meet opposition from powers like the United States, who even though are not party to the Rome Statute, will try to maintain leverage over ICC through the UNSC. The roles of the ICC President and Prosecutor are crucial in this regard. The President and Prosecutor should seek to engage in greater dialogue with the United States, and to make understood the necessity for “strategic concessions” to the AU after decades of stagnant relations. In the short term, the ICC may find it beneficial to capitalise upon greater dialogue with the Biden administration, which though continues to express disagreement over the ICC’s investigations into Afghanistan and Palestine, appears far more inclined to the international justice project than the previous US administration.

Strategic Initiatives

Thirdly, the ICC should seek to engage in a range of strategic initiatives to improve the efficacy of its operations. Before that, the ICC should acknowledge the value of its current initiatives. Seminars and retreats should continue to be held to offer an informal and intimate space for dialogue with African states. An increase in the frequency of invitations for amicus curiae by the Appeals Chamber will aid in promoting ICC-Africa cooperation.

In addition, the President and Prosecutor should aim to more frequently engage relevant but separate entities such as the ICJ, given the interdependence of such institutions within the global political system. As discussed, this is particularly important in relation to the AU’s request for clarity over Articles 27 and 98 of the Rome Statute. Clarifying confusions or misunderstandings is especially crucial in situations where relations are already fraught. An advisory opinion from the ICJ would thereby supplement the work of the ICC.

As recommended in the AU’s Withdrawal Strategy, the ICC should also aim to increase its proportion of African personnel. Africa is the largest regional bloc within the ASP, and the proportion of staff within the organs, departments and offices of the Court should reflect this. From a consideration of public relations alone, this would go a long way to demonstrating the Court’s desire for impartiality. More importantly, including a greater number of African personnel will likely translate into better decision-making. Individuals with an understanding of the political and cultural sensitivities of the local context are better prepared to administer justice in an appropriate manner.

Furthermore, the Prosecutor should continue to initiate investigations into situations beyond the African continent. While this is part of the mandate of the Prosecutor, and not an initiative designed specifically to mend relations with Africa, improving the impartiality of prosecutions will naturally aid in mending relations with Africa, given that Africa’s objections originate in the perceived bias of the Court. Considering this, Prosecutor Khan’s decision to open an investigation into Ukraine on 28 February 2022 should be commended as positive step in realising the ICC that African states had always sought for: an international court that serves as an instrument of global, and not solely African, justice.

Given the plurality of strategies proposed, key actors including the President and Prosecutor of the ICC, and the President of the ASP, should create systematic long-term plans to track the work of the Court in mending relations. Such plans should include the use of metrics or performance indicators to track and evaluate the progress of the Court and promote accountability. While recognising their unique and distinct roles within the ICC, these three actors should further engage in frequent dialogue and coordinate their efforts to ensure that initiatives complement and strengthen each other.

Numerous challenges and opportunities characterise the work of the Court moving forward, and ambitious means to improve the ICC-Africa relationship are proposed. Above all, the ICC must realise that current strategies are insufficient to achieving meaningful reconciliation between both parties. The adoption of new and bolder policies is the only path forward, the consequences of which will affect millions across the world.