Is the ICC Helping or Hurting the African Union?

Sarah Jaward, Volume 36 Associate Editor, Volume 37 Online Content Editor

On July 2002, after ratification by 60 countries, the Rome Statute of the International Criminal Court (“ICC”) went into effect.[1] With that, the ICC became the first established, treaty-based, international criminal court aimed at holding accountable individuals who were responsible for perpetrating some of the most serious crimes against human rights. The ICC has dealt with most forms of atrocities including genocide, crimes against humanity, and war crimes.[2] While there were 139 countries that signed the Rome Statute, some of its greatest support came from the African region, accounting for 34 of those signatories.[3] Many of these leaders were motivated by the atrocities that resulted from the Rwandan genocide and South African apartheid.[4]   Regardless of this, the ICC has been under a great deal of scrutiny recently as a growing number of African leaders have openly expressed their disappointment with the court. This disappointment stems from ICC’s exclusive focus on the region, as evidenced by the fact that only African-related issues have been referred and brought to the ICC.[5] More specifically, all persons who have been brought to the Court are African, coming from Central African Republic, Cote d’Ivoire, the Democratic Republic of Congo, Kenya, Libya, Sudan and Uganda.[6] Given the recent atrocities that have occurred in the Middle East, Kosovo, Sri Lanka, and North Korea, there have been some questions as to why the focus has been solely on Africa. In order to understand why all of the cases before the Court have originated from Africa, there needs to be a broader examination of the processes as they relate to the political and regional consideration of the region. Taking into consideration the historical Western colonization period Africa went through, one could argue that the African Union (“AU”) is striving to assert a united front for the continent. For example, the AU has counseled its members to “speak with one voice” against the ICC’s criminal proceedings against sitting Presidents within the region.[7]  As many of these developing countries challenge how they are perceived within the international world order, there is an inevitable tension that will occur as the objectives of the ICC intersect with geopolitical concerns. ICC’s blatant focus on the African region highlights the various political influences on the Court, such as the referral process.[8] This allows the UN Security Council to refer citizens of non-State parties to the Rome Statute for indictment by the ICC.[9] For example, this was how Libya and Sudan were indicted.[10] Since the referral process requires nine out of fifteen votes by members, it is one of the most apparent ways powerful states can control the operations of the court.[11] A good example of this intersection is the trial of the sitting President of Kenya, Uhuru Kenyatta, and his Deputy President, William Ruto. The AU has heavily criticized the ICC for its decision to prosecute them, claiming that it has stifled the Kenyan peace process. This claim was particularly persuasive after the 2007 electoral violence. The election violence was the major subject matter of the charges brought about by the ICC. However, in the aftermath of the election, the AU initiated a mediation process that led to the enactment of the National Accord and Reconciliation Act (“National Accord”).[12] The main goals of the National Accord were to create the positions of prime minister and two deputy prime ministers and to encourage reconciliation between the adversarial groups, in hopes of bringing about a collective agreement on how to address the long-term causes of the 2007-2008 post-election violence.[13] Placing the President Kenyatta on trial threatens the reconciliation process, as well as the stability of that country, since the progress and potential made through collaboration were overshadowed by the intervention of the ICC.   Furthermore, putting Kenya’s president and deputy president on trial fans the flames of the idea that the ICC is biased towards this specific region.[14] This has resulted in African leaders not only pushing for changes within the ICC, but Kenya going as far as approving the option to leave the ICC all together.[15] Regardless, those who defend the ICC in relation to Africa say that this point of view is not sound.  The director of the International Justice Program at Human Rights Watch was quoted saying, “denying victims in Darfur or Kenya access to remedy because it’s not possible to provide justice for victims in Gaza or Sri Lanka or Afghanistan makes no sense.”[16] Furthermore, some may argue that the African Union invited ICC intervention since its member nations are the only ones to have referred themselves to the ICC. There are three ways situations can be referred to the ICC: (1) by a state party to the Rome Statute; (2) by the UN Security Council or (3) directly from the ICC Prosecutor.[17] This self-referral process allows states to invite the ICC to investigate crimes that were committed within their own territories. Regardless, one could argue that other regions may not have embraced the chance for justice in the same way, so it may be taking longer for the ICC to launch investigations into war crimes in those situations. While the ICC has the potential to play a significant role in upholding peace and security in Africa, there is a need for the African region to regain its trust in the organization, the same trust that led 34 nations to accept the Rome Statue. There is also a need for those who have participated in the gravest human rights abuses to be held accountable. The ICC must take steps to engage with the African leadership in order to seek a practical solution to this situation. One way the ICC might be able to accomplish this is to strengthen the domestic legislation within this region, in order for these countries to build the capacity to try international crimes within their own domestic jurisdictions. This can be done by strengthening the judiciaries within these countries, in order for them to develop the capacity to bring to justice their own leaders. In doing this the ICC will stand as a “last resort” in situations.