by Ottilia Anna Maunganidze
1 July 2012 marks the tenth anniversary of the formation of the International Criminal Court (ICC). When it came into force in 2002, the ICC was heralded as a new dawn for international criminal justice and as a means through which victims of international crimes would not only see justice being served, but would be part of the process. Today, on the eve of the ICC’s anniversary, the ICC faces mounting criticism. Most critics of the court argue that it has unfairly focused on Africa. This criticism, however, ignores four important considerations.
First, critics contend that the ICC is “targeting” Africa because all seven situations before the Court are from African countries. Yet of these situations, three were self-referrals by governments of the Central African Republic, the Democratic Republic of the Congo and Uganda. Further, two of the situations were referred to the ICC by the United Nations (UN) Security Council and were not initiated by the Court itself. Second, critics do not acknowledge that the majority of African countries (33 out of 54) have ratified the Rome Statute of the ICC and an additional African country – Ivory Coast – has voluntarily accepted the ICC’s jurisdiction. Consequently, Africa has the largest regional representation at the Court. Third, the critics overlook that the ICC is not intended to serve as a primary court, but rather as a court of last resort, which only intervenes when a state is either unwilling or unable to prosecute those alleged to have committed international crimes. Last, but certainly not least, the critics do not acknowledge the pervasive culture of impunity and weak criminal justice systems in Africa. These have significantly contributed to the continued commission of international crimes in Africa.
It is worth noting that the African Union (AU) has made it clear that, while it does not condone impunity for crimes, it does not support the indictment of sitting heads of states by the ICC. In this regard, the AU has made firm decisions calling on its member states not to cooperate with the ICC in the arrest of Sudanese President Omar Hassan al-Bashir. The ICC wants to prosecute al-Bashir for charges related to war crimes, crimes against humanity and genocide committed in Darfur, Sudan. Some African states have chosen to ignore the AU’s call for non-cooperation and instead abide by their domestic and international legal obligations. These countries, some of which have vowed to arrest al-Bashir, are acting consistently with the rule of law requirements of international criminal justice. However, al-Bashir remains at large and the situation in Darfur continues. The fact that he has not yet been arrested and surrendered to the ICC is evidence that for international criminal justice to succeed, countries, especially ICC states parties, must do more than take righteous positions. They must give effect to their words through action.
While it is undeniable that there are crimes being committed outside of Africa and that these too require investigation and prosecution, the critics of the ICC and those who believe that al-Bashir should not be arrested seem to forget international criminal justice is meant to be more for the victims than it is about the perpetrator. Indeed, no one can deny that international crimes are committed in Africa. Instead of lambasting the ICC for doing the little it can to address the crimes being committed, African states should take ownership of international criminal justice themselves. The continued failure to do so is, in my opinion, the primary reason why cases before the ICC are from Africa. They are there because the ICC exists to fill the impunity gap and to ensure justice for persons responsible for the most serious crimes of international concern. The preamble of the Rome Statute of the ICC stresses that the first commitment by states is to “end impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes” domestically.
If properly conducted international criminal justice does allow for African solutions to African problems, but where those are not available, it offers victims of international crimes a viable avenue to seek justice.
Ottilia Anna Maunganidze is a researcher in the Transnational Threats & International Crime Division at the Institute for Security Studies.