The International Criminal Court in Africa

TIM MURITHI examines the outcomes of the first review conference of the International Criminal Court in Kampala, Uganda.

The International Criminal Court (ICC) was established in 1998, when 120 State Parties signed and adopted the Rome Statute. In June of this year, the Assembly of State Parties to the Statute convened its first Review Conference in Kampala, Uganda, and this was the first opportunity to review the Court’s mandate since it was formally inaugurated in 2002.

The Review Conference was attended by a number of Intergovernmental organisations, including the African Union (AU), United Nations (UN) and European Union (EU), as well as a range of non-governmental organisations.

The mandate of the ICC, as stated in Article 1 of the Rome Statute, is to ‘exercise its jurisdiction over persons for the most serious crimes of international concern’. Article 5 lists these as: a) the crime of genocide; b) crimes against humanity; c) war crimes; and d) the crime of aggression. The Court therefore acts to prosecute individuals who commit these crimes, either acting alone or in concert with others.

As its jurisdiction only dates to the adoption of the Rome Statute, the reach of the ICC does not extend to prosecuting apartheid perpetrators in South Africa. In his opening statement to the Review Conference, South African deputy minister of  justice and constitutional development Andries Nel noted that ‘millions of South Africans suffered for generations the humiliation and human rights abuses associated with apartheid, and that the crime of apartheid was criminalised in Article 7(2)(h) of the Rome Statute as a crime against humanity’. This jurisdiction was just under a decade too late to address apartheid crimes.

However, the ICC has gained increasing prominence in the administration of international criminal justice in Africa, and has launched investigations in four countries: the Democratic Republic of the Congo (DRC), Uganda, the Central African Republic (CAR) and the Darfur region of Sudan. In January of last year, the ICC initiated its first trial of Congolese militia leader Thomas Lubanga for a range of crimes including the recruitment of child soldiers in the war in Eastern Congo.

Further, in March of this year the ICC’s pre-trial chamber granted prosecutor Luis Moreno-Ocampo the authority to initiate investigations into crimes against humanity allegedly committed in the Republic of Kenya following post-election violence in late 2007 and early 2008.

However, these interventions have not been without controversy. In March of 2009, the Court’s decision to issue an arrest warrant against Sudanese president Omar Al-Bashir for war crimes and crimes against humanity in Darfur provoked criticism from the AU in particular, members of which argued that an indictment could effectively undermine future efforts to broker peace in the country.

The AU duly requested that the UN Security Council defer the decision to prosecute Al-Bashir for 12 months, but received no response to this request.

In the context of this lack of response from the Security Council, at its 13th Annual Summit of the Assembly of Heads of State and Government in Libya, the AU decided not to cooperate with the ICC in facilitating the arrest of al-Bashir.

However, it is important to note that this was not a unanimous position, and countries, including South Africa, Botswana and Chad, have publicly disagreed with the AU’s position, citing their legal obligations as state parties to the Rome Statute.

More recently, a statement released following an AU summit in Kampala in July of this year indicated that the regional body had moved to reject a request from the ICC to establish a liaison office in Africa.

The divergent positions taken by the ICC and the AU in relation to the al-Bashir case in particular raise an important question as to whether achieving peace precedes pursuing justice, to which there is clearly no right or wrong answer.

The Kampala Review Conference provided an important opportunity to take stock of how best to address this dilemma of whether to first pursue peace and stability, and then seek justice for victims through prosecutions of those most responsible for serious crimes.

The IJR has explored this and other issues related to the ICC in a recently published policy brief entitled, ‘Sequencing the Administration of Justice to Enable the Pursuit of Peace: Can the ICC Play a Role in Complementing Restorative Justice?’ (download here).

However, the Conference did not reach consensus or release a definitive statement on the issue of the sequencing of peace and justice interventions, which was a lost opportunity to provide guidance for appropriate responses in many societies undergoing conflict in Africa, and elsewhere in the world.

The Review Conference also discussed strategies for ensuring State Party cooperation in upholding arrest warrants issued through the ICC. The Court itself does not have a police force, and is therefore unable to physically arrest alleged suspects.

The Conference therefore considered issues of complimentarity, and the relationship between the ICC and national criminal jurisdictions. The ICC is intended to be a court of last resort and not of first instance, so where national criminal jurisdictions are able to prosecute perpetrators of grievous international crimes, the ICC is supposed to defer to these domestic processes.

Finally, delegates at the meeting agreed on a definition of the crime of aggression, which will fall within the jurisdiction of the ICC, but deferred its operationalisation to 2017.

Controversy aside, the gathering represented a crucial milestone for the ICC, which in reality will continue to play an important role in the administration of international justice in Africa. The decisions and recommendations made by the State Parties in Kampala will undoubtedly determine the effectiveness of the Court in the years to come, and therefore the meeting represented an important opportunity for contributing to redefining its operations on the continent.

Dr Tim Murithi is Head of the Transitional Justice in Africa programme at the Institute for Justice and Reconciliation in Cape Town.

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