Africa and the ICC: An opportunity for reform

The Africa Union’s reaction to the International Criminal Court (ICC) dubbed the “ICC withdrawal strategy” has far reaching implications for the pursuit of justice and international human rights. The announced withdrawals of South Africa, Burundi and Gambia from the International Criminal Court, on a continent that represents the highest membership block in the ICC necessitates a closer look at what this means for Africa and the victims of international crimes such as war crimes, crimes against humanity and genocide.

The robust debates that have resulted from these announcements indicate that international human rights norms are finally being taken seriously. The practicalities of pursuing justice and fighting impunity in the context of ongoing and often recurring conflict is being contested in national, regional and global forums. International human rights accountability is suddenly a very real political consideration.

The historical importance of the ICC to Africa

The establishment of the International Criminal Court marked a milestone for consolidating the human rights of victims of severe, widespread and systematic abuses. African countries were at the forefront of this struggle to ensure individual accountability for mass atrocities at the most senior level for some of the worst international crimes. Some of these countries were actively involved in shaping the statute, and until the recent withdrawals, African countries represented the largest membership block of the court (34 of the 54 African Union member states).

For many of these countries, the prospect of an international criminal court which would provide a more permanent and consistent approach to prosecuting high level perpetrators and which would have some level of independence from global powers was seen to hold promise for a more just global legal order. For countries that had recently emerged from years of conflict and authoritarian rule, the court also provided some guarantee of global support for the consolidation of democracy and peace agreements.

The support for the ICC from African countries came alongside promising local developments in numerous countries that have seen very positive advances in justice for victims and accountability of perpetrators. While there is clear basis for cynicism regarding certain state agendas for opposing the ICC and closing down local avenues for transitional justice, there is also much to celebrate regarding national and regional developments of initiatives to address human rights claims. For every three steps forwards we seem to see one or two leaps backwards. Our leaders present us with the prospect of an African Court of Justice and Human Rights with the one hand, and demolish the SADC (Southern African Development Community) tribunal with the other. The continent presents a very complex mix of challenges, successes and failures. The statements of the AU, and the political bluster of a few African leaders provide a very simplistic picture of how international justice norms and institutions complement or challenge national peace and justice processes.

The current status of the ICC in Africa

Those countries who have engaged with the ICC have found it to be a double or triple edged sword. Criminal justice is essentially a very blunt tool to address the complex problems emerging from mass abuses involving numerous role players, particularly when it is impossible to identify one side as the only perpetrator and subject the accused to immediate arrest. Nuance in engaging national political role players has not been the ICC’s strong suit, although this has improved since the appointment of Ms Fatou Bensouda as the new chief prosecutor who hails from the continent. While justice and accountability are essential elements of building sustainable peace, calibrating its interaction with national peace and democratisation processes requires some level of finesse.

Africa’s backlash to the ICC

In addition to the difficulties inherent in applying blunt legal instruments to complex political processes and some degree of executive incompetence (to be expected from a new global institution), the larger problem is the built-in politics of the ICC. This plays out most obviously at the level of the UN Security Council, which has the power to refer cases of non-member states. This ability to extend the reach of the ICC beyond just its member states (in a very selective manner), has been particularly controversial as the selection bias is so transparently manipulated by political interests (targeting Sudan and Libya and excluding Syria and Israel). The fact that non-member states such as the USA, Russia and China can direct the court to target or protect their own perpetrators and those of their allies is particularly galling.

Adding insult to this injury is the fact that the court has, thus far, only instituted charges against African perpetrators. While many on the continent may welcome this international investment in justice for African victims, those who oppose the ICC have been handed plenty of ammunition. Those accused of crimes (and their regional allies) can all too easily argue that the court is racist or serves a neo-colonial agenda as it gives ex-colonial powers a weapon for punishing African leaders who defy their erstwhile masters.

Another reason for the ICC’s focus on African countries is the fact that African CSOs and victim groups, being fully aware of the shortcomings of their national and regional justice mechanisms, have effectively pursued regional and international avenues like the ICC to secure justice and accountability.

What does this mean for justice and accountability on the continent?

For human rights advocates, the reality is that there is presently no other realistic option on the table. We depend on the ICC in situations where the state is unwilling and unable to prosecute high level perpetrators of the worst abuses, such as war crimes and crimes against humanity. In some contexts where this is the case, even the ICC is not a feasible option because the perpetrators are shielded from prosecution by powerful members of the UNSC. In others, those who are being prosecuted are shielded by their international networks of friends and allies. And even where the ICC does provide a successful intervention resulting in trial and prosecution, the benefits for the victims and victimised populations and communities might be very limited.

The prospect of further withdrawals from the ICC raises serious concerns for access to justice for victims of egregious crimes on the continent where national and regional courts often fail to secure justice and bring perpetrators to account. Although an imperfect mechanism, the ICC provides hope for ensuring that high level perpetrators of atrocious crimes are held to account, an important aspect of victims’ satisfaction. The Lubanga case, for instance brought much hope to various victim groups in the Democratic Republic of the Congo, and the ICC’s reparations order specifically addressed the victims’ needs for reparation for the crimes against humanity suffered by both individual and collective victims. Given the gaps in accessing justice mechanism at local and continental levels, many African victims and their litigants have turned to the ICC in their quest to fight impunity. Withdrawal from ICC will mean that victims’ rights to redress and recourse, and their access to justice will be further curtailed.

Towards reform of the ICC

The court has made significant strides in addressing these concerns through its appointments and strategies. The new chief prosecutor appears to be someone with significant political integrity, and her actions appear to have been more considered and responsive to local conflict and peace dynamics. Rather than the narrow focus on Africa, the prospect of prosecutions in a non-African case now seems a lot stronger.

The importance of some of these cases is not only that they are not African, but that they may implicate perpetrators from permanent UNSC members. A serious (and balanced) engagement with Afghanistan may precipitate an exciting crisis for the ICC as it could mean addressing the US and UK responsibility for mass violations. This is now a much more real possibility due to the intense critique of its biased case selection from both state and civil society actors.

Another opportunity for some positive developments arising from the legitimacy crisis is the possibility of reform. The Rome Statute that gave birth to the ICC can be revised through a 2/3 vote by its members. Given that more than 2/3 of the members are from the global South, and the Assembly of States Parties (the ICC's governing body) is chaired by an African state representative, it does seem like the prospects for reform are warming up. One obvious reform that has been suggested is to remove the ability of non-member states on the Security Council of exercising a veto over referrals to the prosecutor.

While there is a strong prospect that additional members will quit the ICC in the coming months (mostly it seems for purposes of protecting their own perpetrators or scoring easy political points as part of an anti-colonial narrative), there is reason for hope that this crisis is one that would boost efforts to push the ICC towards more equitable prosecutions and provide impetus for reforming a deeply flawed mechanism. The ideals it embodies, even when only casting a faint shadow, are ones that ring true with the needs of victims and vulnerable communities.

Hugo van der Merwe is Director of Research, Knowledge & Learning and Annah Moyo is Advocacy Manager at the Centre for the Study of Violence and Reconciliation (CSVR), South Africa.

Further information:

Hugo von der Merwe, CSVR

Annah Moyo, CSVR