Academic journal article Melbourne Journal of International Law

Africa's Relationship with the International Criminal Court: More Political Than Legal

Academic journal article Melbourne Journal of International Law

Africa's Relationship with the International Criminal Court: More Political Than Legal

Article excerpt

Contents  I   Introduction II  Africa's Early Relationship with the ICC       A The Role of African States and Institutions in the Formation         of the ICC       B The Role of African Civil Society III Legal Basis and Procedures for Instituting Prosecution before the     ICC       A Referral and Investigation       B Pre-Trial Proceedings IV  African Criticisms of the ICC--A Political Debate       A The Afro-Focused Prosecutorial Approach       B The Scuttling of Peace Projects       C The Conspiracy Theory       D Sovereign Immunity and the 'Al Bashir Factor' V   Does Africa Have a Case against the ICC?       A Referral of the Substantive Cases before the ICC       B The 'Reverse Analogy' Argument VI  Seeking Solutions       A Complementarity and the Primacy of Domestic Jurisdictions       B Regional Complementarity? VII Conclusion 

I Introduction

The post-Nuremberg quest for a permanent court to try those responsible for horrendous crimes against international humanitarian law and grave violations of human rights proved elusive for several decades. The lack of political will and the geopolitics of the Cold War contributed significantly to the inertia that dampened the realisation of that goal. However, the 1990s saw a shift in direction. In 1994, the conflict in the former Yugoslavia led to the creation of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') (1) by the United Nations Security Council, acting under its Chapter VII powers. (2) A conflict similar to that in the former Yugoslavia also took place in Rwanda, leading the Security Council to create the International Criminal Tribunal for Rwanda ('ICTR'). (3) These tribunals are ad hoc in nature, but their presence helped to generate momentum for the establishment of a permanent international criminal court to hold perpetrators of serious violations of human rights criminally responsible. In addition, the timing was right. The Iron Curtain was blown away and, with it, the binary East-West geopolitical divide. Consequently, the stage was set for the realisation of the International Criminal Court ('ICC' or 'the Court').

With the entry into force of the Rome Statute of the International Criminal Court ('Rome Statute) in 2002, the ICC came into being. (4) The Court's mandate is to try those responsible for war crimes, genocide, crimes against humanity and (soon) crimes of aggression. (5) African states were instrumental in pushing for the realisation of the ICC (6) and this is reflected in the fact that Africa has the highest regional representation to the Rome Statute. (7) However, this close association was soon derailed. Africa's relationship with the ICC deteriorated, especially after the latter issued a warrant for the arrest of a sitting African head of state, President Omar Hassan Ahmad Al Bashir of Sudan. The African Union ('AU') and the African leadership have since accused the ICC of singling out or targeting Africans. (8) Some critics of the ICC have also argued that the Court is part of a conspiracy against Africa. (9) Others have argued that the prosecution of a conflict's protagonists undermines ongoing peace processes. (10) Consequently, Africa's relationship with the Court is now in a quagmire. Questions of political will which affected the creation of the ICC continue to haunt the Court.

This article seeks to examine Africa's relationship with the ICC. It seeks to address the allegation that the Court is biased against Africa. Any assessment of a tribunal's performance or its prosecutorial decisions should ordinarily be based on legal considerations. (11) Unfortunately, supranational adjudication is always bogged down by political factors. (12) In this vein, this article will assess the AU's criticisms of the ICC from both political and legal perspectives. While it is clear that the AU is of the view that the Court's prosecutorial decisions are politically motivated, it is equally clear that their discomfort with the Court is itself politically motivated. …

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