With the March 2013 election of Uhura Kenyatta as president of Kenya, the status of the relationship between the International Criminal Court (ICC) and Africa has been called into question once again.⁽²⁾ Kenyatta was indicted by the ICC in 2011 for crimes against humanity and his trial is due to open in November of 2013.⁽³⁾ Then, in March of 2013, Kenyatta was elected as president of Kenya, with William Ruto elected as vice president. Ruto is currently on trial for crimes against humanity, becoming the first serving government official to appear at the ICC.⁽⁴⁾ While Ruto stands trial, the Kenyatta case has taken another interesting turn as, in September of 2013, Kenya’s parliament decided to withdraw its membership to the ICC, becoming the first nation to do so.⁽⁵⁾ The African Union (AU) plans to discuss the possibility of taking this a step further as they will meet on 13 October 2013 to vote on whether to invoke a mass exodus from the ICC in protest over Ruto’s trial.⁽⁶⁾ The showdown between Kenya and the ICC will have major ramifications for the future relationship between Africa and the ICC. The link between Africa and the ICC has become increasingly fragile, as it encompasses a deteriorating bond between an international organisation that enjoys jurisdiction on much of the continent and a continent that often feels that it is the only environment which the court examines under its mandate.

When the ICC opened its doors in July of 2002, no one knew what to expect from this pioneer institution or what impact it would have in the realm of international criminal law. The evolution of the relationship and connection between the ICC and Africa has been very inconsistent. With 33 states in Africa having signed and ratified the Rome Statute that established the ICC, Africa maintains the largest representation of any region party to the treaty.⁽⁷⁾ This represents over 60% of the continent. However, with 18 cases in 8 identified situations all on the continent of Africa, the idea that the ICC has created the impression of an ‘Africa bias’ within the structure of the court has gained traction.⁽⁸⁾ This has created a trend of wavering support among African nations party to the treaty.

While the ICC and Africa ponder their contentious and fragile arrangement, the effectiveness of the court has also been called into question, causing more disputes between the organisation and its ratifying countries.⁽⁹⁾ The need for a criminal court system on the global level was clearly recognised by a majority of African sovereign nations through their original commitment to the ICC, but the combination of the African bias and the failure of the ICC to effectively prosecute war criminals may have strained the relationship between Africa and the ICC beyond repair.

Now, with the growing contention between Kenya and the ICC, coupled with African leaders’ expanding resentment of the court, the perception on the continent of an African bias, and the court’s failure to prosecute war criminals, alternatives have been discussed and may prove more viable over the long-term, thus seeing an alternative system to replace the ICC ultimately emerging from Africa. This CAI paper presents a brief history of the ICC, including some of its strengths and weaknesses. Then, it provides in-depth analysis of the association between the ICC and Africa, showing some of the challenges that the ICC and Africa face in relation with one another. Finally, it determines that the future of a criminal court for Africa should be a court established and managed by Africa, rendering the ICC obsolete on African soil.

A brief history of international criminal law leading to the ICC

The ideology of international criminal law was derived from the fallout of World War II when the realities of the crimes committed by the Axis Powers were realised. Created by the Allied Powers, the International Military Tribunal at Nuremberg (IMT) outlined the foundation that would define international criminal law over the next 60 years. These crimes were presented in Article 6 as crimes against peace, war crimes and crimes against humanity.⁽¹⁰⁾ The IMT created the first definition of crimes against humanity:

 Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; persecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.⁽¹¹⁾

This groundwork was used to establish the International Military Tribunal for the Far East, which punished the war crimes and crimes against humanity committed by Japanese forces during World War II. Then, in 1948, the world convened again for The Convention on the Prevention and Punishment of the Crime of Genocide, more commonly known as the genocide convention. This was followed by the four Geneva Conventions of 1949 and their additional protocols, which built upon the ideology of international humanitarian law.⁽¹²⁾ The conventions outline the rules of war and how wars should be fought, all of which can be found within the Rome Statute.⁽¹³⁾

After a long period during the Cold War in which international criminal law stagnated, a new conflict raged in the former Yugoslavia in 1991. After two years of emerging reports that detailed rape, systematic murders and other war crimes being committed during the conflict, the United Nations Security Council (UNSC) took action by creating the International Criminal Tribunal for the former Yugoslavia (ICTY).⁽¹⁴⁾ Although the ICTY was not the first application of international criminal law, it was the first UN-mandated court to handle a regional conflict, and it was also the first example of the use of a system to prosecute individuals who violated the Geneva and Genocide conventions.⁽¹⁵⁾ The April 1994 Rwandan Genocide forced the UNSC to take action again as over 800,000 Tutsis and moderate Hutus were massacred in just 100 days.⁽¹⁶⁾ By November of 1994, the UNSC passed Resolution 955 that established the International Criminal Tribunal for Rwanda (ICTR) to punish the perpetrators of the genocide. These two ad hoc courts are important because they established a present day precedence for the creation of a world international criminal court – hence the ICC.

In 1998, the international community convened in Rome to discuss the possibility of a permanent international criminal court. With many issues from the onset of discussions, it seemed unlikely at first that an agreement could be reached. Contentions over balancing court jurisdiction with state sovereignty took centre stage, and additional disputes covering case numbers, enforcement powers and specifically the role of the prosecutor, were debated at length. However, in the end a lopsided vote prevailed as the treaty passed 120 to 7, with 21 countries abstaining. Maybe even more unbelievable was how quickly the court achieved legitimacy. Expecting a long wait for the required 60 countries to ratify the treaty, the ICC received its sixtieth ratification just four years later, and in July of 2002 the ICC became the first global criminal court.

The ICC and Africa

The court took some time to begin investigating cases, but in July of 2005, the court issued its first batch of arrest warrants for the Lord’s Resistance Army (LRA) commanders Vincent Otti, Okot Odhiambo, Dominic Ongwen, Raska Lukwiya and their infamous leader, Joseph Kony.⁽¹⁷⁾ This was followed in 2006 and 2007 with arrest warrants issued pertaining to the conflict in the Ituri region in the Democratic Republic of Congo (DRC), a regional war between ethnic Lendu and Hema that stemmed from the war that had been raging in the country since 1996.⁽¹⁸⁾ African countries represent nearly one third of the original 60 nations that ratified the Rome Statute.⁽¹⁹⁾ Overall, the ICC has issued arrest warrants for 30 people in what it has defined as eight “situations,” all in Africa.⁽²⁰⁾ And while these warrants have made statements about and raised awareness of the violence in certain locations on the continent, the results have not lived up to the hype.

The primary issue of contention between Africa and the ICC, after nearly 11 years of existence, remains the idea of an Africa bias, since all situations, cases and arrest warrants issued and investigated by the court are in Africa, despite 121 ratifications from across the globe. This has raised major concerns of credibility, as the court has been labelled “a tool for Europe to subjugate Africa,” a “White Man’s Court” or “Neo-colonialist.”⁽²¹⁾ As Kaye states, “With its formal investigations targeting African States—the Central African Republic, Congo, Kenya, Libya, Sudan and Uganda—the court has also invited the charge that it is an agent for postcolonial Western interests.”⁽²²⁾ The ICC attempted to offset these concerns by appointing an African, Fatou Bensouda from Gambia, as the second Chief Prosecutor of the ICC. Time will tell if she pursues investigations outside of Africa.

While few can deny that atrocities have been committed in the regions in which these investigations have been opened, the question remains, why not elsewhere in the world? A violent conflict between the leftist group The Revolutionary Forces of Columbia (FARC) and the government has been ongoing in Columbia for nearly 50 years. An estimated 120,000 people have either been killed or have simply disappeared, and another 400,000 people have fled their homes, and several violations of the laws of war have been reported.⁽²³⁾ Columbia is party to the Rome Statute and therefore under ICC jurisdiction, but no investigation has commenced into the many crimes committed by forces there. This is just one example of conflict outside of Africa that has not been nearly as fervently pursued by the Office of the Prosecutor.

Another issue of contention between Africa and the ICC is the role the court plays in political Africa. In March of 2009, the ICC took the monumental step of issuing an arrest warrant for Sudanese president Omar Hassan Ahmad al-Bashir.⁽²⁴⁾ This was only the second time in history that an international arrest warrant had been issued for an incumbent head of state.⁽²⁵⁾ Not only did such a bold move send shockwaves through the international community, but many felt that it disrupted the delicate peace in Darfur.⁽²⁶⁾ In addition, many countries party to the Rome Statute and obligated under the treaty to arrest fugitives of the ICC if they enter their territory, refuse to arrest al-Bashir, as he has travelled throughout Africa, the Middle East and East Asia without being detained.⁽²⁷⁾ Certain African nations have rallied behind al-Bashir to the point of informing the ICC that they will not cooperate with his arrest.⁽²⁸⁾ This proposition culminated in an AU resolution that openly stated that they would not cooperate with the court in arresting al-Bashir.⁽²⁹⁾ The threat of having a head of state on the continent culpable for war crimes presented the possibility of al-Bashir’s counterparts in other nations being scrutinized by the ICC as well.

This jurisdictional problem has only been compounded by the case against Kenyatta. The case against Kenyatta and Ruto has become a subject of much debate since Kenyatta was elected Kenya’s president in March 2013. Ruto, Kenyatta and Kass FM radio chief Joshua Sang still face charges that they incited violence following the 2007 Kenya presidential elections which left over 1,000 people dead and 600,000 people displaced.⁽³⁰⁾ The ICC has handled this situation poorly at times as it appears that the court is more concerned about saving face than they are about maintaining their role as a system of conflict resolution. Despite dismissing charges against co-defendant Francis Muthaura for the same charges of inciting post-election violence, the ICC has decided to continue its case against Kenyatta and Ruto, with full knowledge of Africa’s resentment of the indictment of a current head-of-state.⁽³¹⁾

The charges against Muthaura were dismissed because a primary witness admitted to taking bribes and providing false testimony; that same witness is due to testify against Kenyatta and Ruto.⁽³²⁾ In addition, the case against the four defendants ties them all to a common plan.⁽³³⁾ Without Muthaura standing trial, how credible is the ICC’s case? This newest dispute threatens the sovereignty of an independent state and has sparked a new rally among African leaders to stand together against the ICC. Ugandan president Yoweri Museveni saluted the Kenyan voters for rejecting the ICC’s “blackmail.”⁽³⁴⁾ Kenyatta’s administration took things a step further as the ICC refused to drop the case against Ruto and Kenyatta. In September of 2013 they called Kenya’s parliament together to decide on the future relationship between Kenya and the ICC. Not surprisingly, under Kenyatta’s influence, Kenya’s MPs voted to withdraw from the ICC, becoming the first signatory nation to do so.⁽³⁵⁾ This could ignite a trend among other African nations to follow suit and withdraw from the ICC as well, further diminishing the court’s legitimacy.

The court’s habit of infringing on executive sovereignty has not been the only issue of contention among African nations. The failures of the court in obtaining successful verdicts have presented jurisdictional debates among certain countries. In the DRC, the court managed to secure its first and only conviction of warlord Thomas Lubanga Dyilo in March of 2012.⁽³⁶⁾ It also has one continuing case against Germain “Simba” Katanga and recently opened proceedings against Bosco Ntaganda, after his high profile surrender in Kigali, Rwanda in March of 2013.⁽³⁷⁾ However, in December of 2012, the leader of the Front des nationalistes et intégrationnistes (FNI) and Katanga’s co-defendant, Mathieu Ngudjolo Chui, was acquitted of all charges for his involvement in the Bogoro village massacre.⁽³⁸⁾ Although the judge decreed that just because he was acquitted of this crime does not mean he was found innocent, the court stated that the testimony was “too contradictory and too hazy” for a conviction.⁽³⁹⁾

Blunders and weak evidence by the Office of the Prosecutor have become more common than successful convictions. With the dismissal of the case against Muthaura, the acquittal of Chui and the decision by the court to decline confirmation of charges against four other defendants from Kenya, Sudan and the DRC, the success rate of the Office of the Prosecutor is not good, considering the expense and resources expended by the court.⁽⁴⁰⁾ This may be one of the reasons that Libya—which is not party to the Rome Statute—has repelled all efforts by the ICC to turn over Saif al-Islam Qaddafi in favour of a trial within the country, despite the request for the ICC investigation coming directly from the UN Security Council.⁽⁴¹⁾ Ultimately, if the court fails to produce results, the trust enlisted by member nations will diminish. This may create a feeling that the court is not needed in Africa and that an alternative method of prosecuting war criminals may need to be implemented that will ensure a higher success rate and will be more sensitive to the political realities on the continent.

A criminal court for Africa

The formation of the ICC was truly a remarkable international achievement on paper. However, the reality of the court’s ability to function within the sphere of global politics makes the court a very difficult proposition, as it needs to respect global leadership before opening cases. The fervent pursuit of leaders, the total unwillingness to pursue cases outside of Africa and the failure to bring successful cases against African war criminals has alienated its staunchest supporters on the African continent by failing to meet their expectations. Representing the highest participation rate of any region, Africa was poised to become the ICC’s biggest supporter and closest ally. However, by utilising its mandate to open cases only against Africans makes criticism of the court and its Western backers easy to understand. The idea of an African bias may not be the underlying goal of the court, but the failure to pursue cases outside of the continent may warrant this criticism. In addition, by pursuing heads of state so vigorously, the court has isolated the many long-term regime leaders from its ranks for fear of their eventual indictment and prosecution.

Now Africa is pursuing the alternative of creating its own court through the AU.⁽⁴²⁾ The Kenya case may be the catalyst that pushes these plans to the forefront of the AU’s agenda, making it a reality soon. The outline for an African criminal court already reached advanced stages in May of 2012, with a final protocol drafted by African heads of state in Addis Ababa, Ethiopia.⁽⁴³⁾ It is currently awaiting approval from member states.⁽⁴⁴⁾ The court would prosecute the same crimes as those outlined in the Rome Statute that governs the ICC, as well as adding the crimes of piracy, terrorism, mercenary activity, corruption, money-laundering, narcotics trafficking and illegal resource exploitation.⁽⁴⁵⁾

While the court will not trump outstanding ICC cases, the goal is to have the African court eventually replace the ICC. With the growing strength of the AU, a continental criminal court would be a positive step in the direction of Africa handling its own affairs instead of depending on the international community or its former colonisers. With the diminishing support of the ICC by African nations, a court governed by Africa that can hold African criminals accountable for their actions, makes too much sense to ignore. The Kenyatta case will certainly open the door for more nations to withdraw from the ICC. If this in turn means that these same nations will support an African court, then creating an entity for prosecuting war criminals in Africa may be the most feasible and practical solution. This way, African nations, through the AU, will have the ability to manage crimes from top to bottom, holding the entire continent accountable for ensuring the AU court’s success.

One of the major drawbacks of the ICC is the fact that the court only pursues high profile criminals. With a continental court, smaller perpetrators would no longer slip through the cracks in favour of only the ‘big fish’. This means that in ongoing conflicts such as Darfur and the wars in the eastern DRC, smaller rebel leaders and even national soldiers that commit war crimes and crimes against humanity will be held accountable for their actions during conflict. This entity will also have the ability to manoeuvre the political landscape the ICC has struggled so much with, as representation from across the continent will be able to convene and decide the best course of action. A criminal court designed specifically to handle crimes during African conflicts, managed by African nations, would eliminate all accusations of bias and leave the fate of war criminals in the hands of their African peers.

Concluding remarks

With the pioneering decision by Kenya’s parliament to withdraw from the ICC, the relationship between the ICC and Africa has passed the point of strained. Additionally, if African nations vote in favour of pulling out of the ICC altogether, this will open the door for a criminal court for Africa, in Africa and governed by African nations. African nations should be applauded for taking the initiative in finding an alternative to the ICC that shifts the responsibility to Africa, removing the excuse of any African bias. While this will obviously hurt the long-term prospects of the ICC, possibly as far as rendering the court obsolete, taking control of their own criminal affairs allows the AU court to adapt to African issues and is just one more step in Africa becoming independent and free from its colonial past.

Written by Daniel R. Donovan ⁽¹⁾

NOTES:

(1) Daniel R. Donovan is a consultant with CAI, a published author and the Programme Director for the development non-profit organisation, African Community Advancement Initiative. Contact Daniel through Consultancy Africa Intelligence’s Africa Watch Unit ( africa.watch@consultancyafrica.com). Edited by Nicky Berg.
(2) Corder, M., ‘Bosco Ntaganda pleads not guilty to war crime charges before ICC’, Huffington Post, 26 April 2013, http://www.huffingtonpost.com; Escritt, T., ‘Hague judges issue sharp rebuke to Kenyatta prosecutors’, Reuters, 27 April 2013, http://www.reuters.com.
(3) ‘The situation in the Republic of Kenya’, International Criminal Court, 2013, http://www.icc-cpi.int.
(4) ‘Kenya’s William Ruto formed an army for war, ICC hears’, BBC News, 10 September 2013, http://www.bbc.co.uk.
(5) ‘Kenya MPs vote to withdraw from ICC’, BBC News, 5 September 2013, http://www.bbc.co.uk.
(6) ‘African Union summit on ICC pullout over Ruto trail’, BBC News, 20 September 2013, http://www.bbc.co.uk.
(7) ‘States parties to the Rome Statute of the ICC according to the UN General Assembly regional groups 121 ratifications as of 02 April 2012’, Coalition for the International Criminal Court, 2 April 2012, http://www.iccnow.org.
(8) Jabre, L. and Moni, J., ‘Is Africa on trial? The role of the ICC examined’, New African, 27 July 2012, http://www.newafricanmagazine.com; ‘Situations and cases’, ICC-CPI, 29 April 2013, http://www.icc-cpi.int.
(9) Kaye, D., 2011. Who's afraid of the International Criminal Court? Foreign Affairs, 90(3), pp. 118-129.
(10) ‘Nuremberg trial proceedings Vol. 1: Charter of the International Military Tribunal’, The Avalon Project, Yale Law School, 2008, http://avalon.law.yale.edu.
(11) Van Krieken, P., 2011. Webster Leiden international law handbook. Röling Foundation: The Hague.
(12) Ibid.
(13) Ibid.
(14) Askin, K., 2005. “The ad hoc criminal tribunals”, in Van Krieken, P. and McKay, D. (eds). The Hague: Legal capital of the world. The Hague: TMC Asser Press.
(15) Ibid.
(16) Stearns, J., 2011. Dancing in the glory of monsters: The collapse of the Congo and the great war of Africa. Public Affairs: New York.
(17) ‘Uganda’, ICC-CPI, 30 April 2013, http://www.icc-cpi.int. Lukwiya was killed in August of 2006 and there are reports that Otti has been killed as well, but the warrant through the ICC remains active. See Mwakugu, N., ‘Obituary: LRA deputy Vincent Otti’, BBC News, 23 January 2008, http://news.bbc.co.uk.
(18) ‘Democratic Republic of Congo’, ICC-CPI, 30 April 2013, http://www.icc-cpi.int.
(19) ‘States parties to the Rome Statute of the ICC according to the UN General Assembly regional groups 121 ratifications as of 02 April 2012’, Coalition for the International Criminal Court, 2 April 2012, http://www.iccnow.org.
(20) ‘Situations’, ICC-CPI, 30 April 2013, http://www.icc-cpi.int.
(21) Tejan-Cole, A., ‘Is Africa on trial?’ BBC News, 27 March 2012, http://www.bbc.co.uk; Jabre, L. and Moni, J., ‘Is Africa on trial? The role of the ICC examined’, New African, 27 July 2012, http://www.newafricanmagazine.com.
(22) Kaye, D., 2011. Who's afraid of the International Criminal Court? Foreign Affairs, 90(3), pp. 118-129.
(23) Brodzinsky, S., ‘Tens of thousands march for peace in Colombia after decades of conflict’, Christian Science Monitor, 9 April 2013, http://www.csmonitor.com; ‘Colombia: FARC’s killing of captives a war crime’, Human Rights Watch, 28 November 2011, http://www.hrw.org.
(24) "The Prosecutor v. Omar Hassan Ahmad Al Bashir", ICC-CPI, 30 April 13, http://www.icc-cpi.int.
(25) The first was former Serbian president, Slobodan Milošević, who was indicted by the ICTY in 1999.
(26) ‘ICC case against Sudan's al-Bashir stirs controversy’, France 24, 20 July 2008, http://www.france24.com.
(27) Kaye, D., 2011. Who's afraid of the International Criminal Court? Foreign Affairs, 90(3), pp. 118-129.
(28) ‘Sudan’s Bashir heads to Chad on Tuesday for fourth time since ICC arrest warrant’, Sudan Tribune, 9 April 2013, http://www.sudantribune.com.
(29) ‘African Union in rift with court’, BBC News, 3 July 2009, http://news.bbc.co.uk.
(30) ‘Kenya MPs vote to withdraw from ICC’, BBC News, 5 September 2013, http://www.bbc.co.uk.
(31) Hansen, T.O., ‘What’s next for Kenya and the ICC?’, Think Africa Press, 25 April 2013, http://thinkafricapress.com.
(32) Ibid.
(33) Ibid.
(34) Ibid.
(35) ‘Kenya MPs vote to withdraw from ICC’, BBC News, 5 September 2013, http://www.bbc.co.uk.
(36) ‘Thomas Lubanga Dyilo’, ICC-CPI, 8 April 2013, http://www.icc-cpi.int.
(37) ‘Situation in Democratic Republic of Congo’, ICC-CPI, 1 May 2013, http://www.icc-cpi.int.
(38) ‘Mathieu Nugudjolo Chui’, ICC-CPI, 1 May 2013, http://www.icc-cpi.int.
(39) ‘DR Congo: Mathieu Ngudjolo Chui acquitted of war crimes by ICC’, BBC News, 18 December 2012, http://www.bbc.co.uk.
(40) ‘Situations’, ICC-CPI, 30 April 2013, http://www.icc-cpi.int.
(41) ‘ICC: Libya wants Qaddafi son's trial at home’, CBS News, 1 May 2012, http://www.cbsnews.com.
(42) ‘Analysis: How close is an African criminal court?’, IRIN, 13 June 2012, http://www.irinnews.org.
(43) Ibid.
(44) Ibid.
(45) Ibid.