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

By Cole, Rowland J. V. | Melbourne Journal of International Law, March 2014 | Go to article overview

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


Cole, Rowland J. V., Melbourne Journal of International Law


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.