Presently, a total of 124 countries are State Parties to the Rome Statute of the International Criminal Court (ICC) comprising 34 African states, 28 Latin American and Caribbean States 25 Western European and other states, 19 Asia-Pacific States and 18 Eastern Europe countries. Accordingly, the African continent has the highest number of state parties to the Rome Statute and has played a fundamental role in legitimizing the ICC system over the years. The ideal expectation is that these high numbers automatically translate into tremendous support for the ICC in Africa. Unfortunately, this is not the case.
A total of 10 situations are under investigation by the International Criminal Court (ICC). All but one of these situations relate to offences alleged to have been committed in African States. Amongst these are five self-referrals by the Central African Republic (2 situations), the Republic of Uganda, the Democratic Republic of Congo and the Republic of Mali. There are two requests for ICC assistance by Côte d’Ivoire which was not a State Party to the Rome Statute initially. There is one Prosecutor referral into the situation in Kenya. Lastly, the United Nations Security Council (UNSC) referred the Republic of Sudan and Libya to the ICC. While there have been instances of widespread conflict and decadence in other non-African countries such as Syria, Pakistan, Palestine, Sri-Lanka and Iraq, none of these situations have been referred to the ICC under the available mechanisms. Conversely, there appears to be over-zealous prosecution of situations in Africa thus raising concerns as to whether the ICC exercises selective justice to the detriment of Africa’s leadership. The ICC has especially faced criticism from the African Union (AU) in recent years due to claims of bias against Africa. During the Extraordinary Session of the Assembly of the African Union in 2013, the AU expressed concern over the “politicization and misuse of indictments against African leaders by ICC”. The AU’s displeasure with the ICC was provoked by the issuance of warrants of arrest against Sudan’s Omar Al-Bashir, a sitting head of state, for genocide and crimes against humanity. The disgruntlement was subsequently exacerbated by the prosecution proceedings against Uhuru Muigai Kenyatta and William Samoei Ruto, the President and Deputy Vice-President of the Republic of Kenya, following the 2007 Post-Election Violence. These cases incited uproar as they challenged the notion of presidential immunity which had until then been viewed as unchallengeable.
These allegations of bias have been vehemently countered by various quarters. It has been postulated that there is a preponderance of conflict in Africa and that as the largest regional bloc of states, the odds of cases generating from Africa are uniformly high. Further, in terms of statistics, the rate of atrocities committed on the continent would naturally make Africa a focus for the ICC. Moreover, African leaders are notoriously known for violating the rule of law, engaging in corruption, general abuse of power and evading all forms of accountability. In fact, it could be argued further that AU’s discontentment with the ICC is a further reflection of the culture of impunity in Africa and the reluctance by its leaders to submit themselves to systems that compel accountability and political responsibility.
Besides, it is important to note that for more than half of the situations before the ICC, the relevant African states have requested for the Court’s intervention through self-referrals or willingly accepting the jurisdiction of the ICC. Accordingly, claims of bias against African leaders appear to be utterly pretentious, consciously misleading and at best amount to mere propaganda. The AU’s determination to castigate the ICC as a tool of western imperialism out to get Africa is therefore misleading in this regard.
With regards to other conflict-prone areas such as Iraq, Syria, and Palestine-Israel, the ICC cannot intervene due to lack of jurisdiction. These states are not States Parties to the Rome Statute and neither have they consented to ICC’s jurisdiction. In the premise, the ICC’s hands are tied. However, the ICC would have jurisdiction over these particular countries if a referral thereof was made by the UNSC as was the case of the situations in Libya and Sudan.
Under the UN Charter, the UNSC bears the primary responsibility for maintaining international peace and stability. It has discretionary powers to, inter alia, determine the existence of a threat to any peace and decide what measures to take without the use of force including making referrals of situations of conflict to the ICC. Pursuant to this mandate, the UNSC has referred only two situations to the ICC, namely the situation in Sudan in 2005 and the situation in Libya in 2011. Sudan and Libya are not state parties to the Rome Statute.
The UNSC’s process of making referrals has been the subject of controversy. Particularly, the UNSC’s hasty referral of the situation in Libya to the ICC even before the existence of any report to corroborate the presumptions informing the referral has attracted substantial criticism. Furthermore, despite massive atrocities conducted in other non-African states like Syria, Sri Lanka and Iraq, the UNSC has not refused or failed to refer these situations for investigation by the ICC. This perceived one-sided focus on the African continent has cast doubt upon the credibility and independence of the ICC.
The UNSC is not guided by any policy criteria when determining which situations to refer to the ICC. Further, the UNSC’s restricted membership is not representative of the world’s viewpoint especially with regards to matters affecting Africa considering that no African state is a permanent member of the Council. Accordingly, UNSC’s referrals have been criticized as mere expressions of political power relations amongst its members, especially the 5 permanent members namely China, the Russian Federation, France, the United Kingdom and the United States of America, to the detriment of Africa which has limited political leverage. Accordingly, the decision to refer a matter to the UNSC is not a judicial but a political decision. The deeply political nature of the UNSC sits uncomfortably with the expectations of certainty, predictability, and impartiality which are associated with the rule of law thus impugning on the partiality of the ICC. It is however important to note that the ICC and the UNSC are two independent and completely separate institutions in law. Accordingly, the misgivings of the UNSC ought not to be visited upon the ICC. The AU is in effect castigating the ICC for the sins of the UNSC.
However, as much as the perception of ICC’s bias against Africa may not correspond with reality, it cannot be ignored. This is especially in the wake of advanced steps taken towards building the capacity of the African Court of Justice and Human Rights (ACJHR) to hear international crimes committed in Africa as an alternative to the ICC. The AU adopted the Protocol On Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights for this purpose although the same is yet to come into force. Urgent action must thus be taken to address the UNSC-ICC referral process. Perhaps the community of nations ought to rethink the role of the UNSC in facilitating ICC’s criminal justice procedures. Considering that majority of the state parties to the ICC comprise of African states, deflecting the jurisdiction over international crimes away from ICC will considerably undermine the authority of the Court.