Africa’s Relationship with the International Criminal Court (ICC)

6179 words (25 pages) Essay in International Law

24/04/19 International Law Reference this

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120 countries adopted the Rome Statute which established the International Criminal Court (ICC) on July 17, 1998.[1] The ICC came into being in July 2012 as a permanent institution and was given the power to exercise its jurisdiction over persons who have committed the most serious crimes of international concern, which include “genocide; war crimes; crimes against humanity; and the crime of aggression.”[2]

Collectively, these nations share the idea that that a form of glob­al justice and equity would be of immense benefit from and also greatly enhanced by ensuring the formation of an “international criminal justice regime which will be empowered to prosecute individuals who are guilty of gross and inhuman forms of human rights violations which also includes war crimes, crimes against humanity and every forms of genocide.”[3]

There are two realities which gave impetus to Africa’s strong support for the establishment of the ICC, and these are the necessity to discover ways to stop superior states from preying on the weaker states and the massacre that gripped Rwanda in 1994. African nations and its leaders saw an urgent need in Africa to directly confront all forms of impunity and the mass violation of the rights of people, as well as thwart superior states from assaulting the much weaker states. African countries found some of the dictates of the statute attractive. Also, the fact that “crimes of aggression and the planning, preparation, initiation or execution of an act of using armed force by a state against the independence (sovereignty), territori­al integrity or political independence of another state,”[4]  were added to the statue has been particularly attractive to African countries.

Currently, 43 African countries have signed the Rome Statute, and 31 are states parties to the statue. Recently, African countries have been criticising the ICC and relations between Africa and the court are currently severely strained due to the feeling that the court is used to prosecute African leaders alone while shielding those of powerful nations.

This has led the African Union to request for its members to implement a policy of nonconformity with the ICC. It serves a great import to be aware that for the court to remain a credible institution for the execu­tion of international justice, there must be reforms on its operations while African countries also need to strengthen their judicial systems.

Africa and the ICC

It is quite necessary to examine the case of ICC and Africa as it will yield a rational explanation for its remit­tance to the ICC. There is definitely, a composition of internal and universal factors that lie behind the court’s recent exclusive attention on African cases and the same pertains to the UNSC referrals to the ICC which are equally biased.

To Africans and African leaders, it appears that crimes which fall within the jurisdiction of the court is committed by only African countries but certainly not. Although ,crimes that pose a grave concern to the entire international society, in general, are being commit­ted, yet the ICC has seemingly devoted its time and resources in the persecution of cases relating to African countries. This has raised grave concern among African leaders. To African leaders, the prosecution and justice system of the International Criminal Court is a form of selective justice which is impacting negatively on the diplomatic, economic, financial and political state of most African countries.

Recently, there is a growing opposition against the ICC, but for the court to function effectively, it is a must to secure the cooperation and compli­ance of national governments, including those on the African continent. The most pathetic scenario in all is that Africans who bear the brunch of the dictatorial tendencies of their leaders are forming alliances with their leaders to pose challenges to the integrity and moral sense of the Court. With some arguing that the court is rather opting for a political convenience instead of a form of uni­versal justice which is spelled out in the Rome Statute. Unfortunately, it is considered saddening that the ICC is yet to adequately and efficiently dispel the fears that Africans and their leaders have and ensure that they are convinced that the court’s work is based wholly on the belief that “the most se­rious crimes which concern the whole international community as a whole must not go unpunished and not based on political and other unrelated contemplations.”[5]

The resolution by the African Union at a summit in Addis Ababa that no sitting African head of state should be compelled to ap­pear before an international court and the petition that the ICC should discontinue the trial of President Uhuru Ke­nyatta of Kenya is quite worrisome. The African Union is yet to get any substantial success in passing a motion to withdraw African countries from the ICC.[6]

Some African countries, however, believes that the court means well for African countries and this is why a country like Botswana have disagreed with the African Union on its decision to exit the court and have contended that African states are meant to uphold their responsibilities under the Rome statute.[7] Also, Kofi Annan, a former U.N. Secretary-General, and Nobel Peace Laureate Archbishop Desmond Tutu have reiterated that African countries should remain with the International Criminal Court.[8]

The argument of the African Union is that it does not agree with the externality of imposition of strategies to fight the crimes against humanity on the continent despite the fact that the AU and the ICC have mutual interest in combating these crimes. More important is the fact that the ICC is an international judicial tool and can, therefore, be apolitical in its judgments, the AU as a political body needs to address impunity by choosing a political approach, which necessarily calls for peace-making and political reconciliation.

It is of necessity for the international community to restore the trust and hope of African countries in the ICC. Although the Court has tried by ensuring that former Gambian justice minister, Fatou Bensouda becomes the chief prosecutor of the ICC to amend the relationship of the court with the continent but unfortunately and conversely, her small country, The Gambia has exited the ICC. 

African countries and the ICC must reconcile the conflict between them, and they must ensure that each country possesses the ability to investigate and judge international misconducts perpetrated within its boundaries. The AU can also assist in such prosecution more particularly when the accused person have fled from the country where the wrongdoing was perpetrated so as to escape the aftermath of prosecution as it has occurred in several human rights cases. There is a necessity and import for the administration of jus­tice that accused persons be prosecuted in the countries where the crimes were committed.

The ICC also asserted that it is important to ensure that African states maintain a substantial level of sovereignty on criminal jurisdiction, rather than ceding it to the ICC which will make sure that “justice is not just be delivered in the international arena but administered and provided at the national level” [9]and that “victims would not need to be taken far away but closer to the legal proceedings.”[10]

A good example is the case Charles Taylor where the prosecution was successful because it was handled by the Special court of Sierra Leone located in The Hague, for supporting and perpetrating war crimes which augur well for African justice system.[11] It is noteworthy that after many years of colonialism and attainment of independence by African nations; African countries are still yet to develop a domestic legal and ju­dicial system which will be capable of adequately safeguarding the fundamental human rights of Africans and administering justice for all African citizens.

The case of Charles Taylor and also those of Sudan and Kenya reveals that there are serious insufficiencies with the administration of justice in Africa. It is an insult on African nations and their judicial and justice systems that the International Criminal Court has to be called upon to investigate and try crimes against humanity committed within its borders this unarguably is a clear indication of the failure of African countries to properly rule themselves and administer justice impartially and aptly.

The African Union should, therefore, support its members to take on necessary institution­al modifications to create locally fixated and culturally germane judicial and legal systems which will have the capability to try leaders and people within the accused of impunity so as to the need to call upon the International Criminal Court to intervene.[12] This has several dimensions, and a crucial one is the fact that it will protect the sovereignty and dignity of African States.


The work of the ICC is just beginning as the court can be said to be in its infancy. Since its establishment, the court has never concluded any case as it is currently hearing its first cases which are all from African countries which are Central African Republic, Uganda, Sudan, Kenya and the Democratic Republic of Congo. From its modest beginning, the court can be said to be the first of its kind to attempt to tackle impunity on a per­manent basis. The court deals with the application of the principle of universal­ity to exercise juris­diction over the most indiscriminate offences that have been committed by people all over the world which cover its jurisdiction.

Despite the seeming glorious and glamorous nature of the court, it has however faced numerous challenges in the countries where it is currently trying cases as the slow wheels of justice at the International Criminal Court have been a frustration to victims. Despite the hope and optimism that the court has in some target states, there has also been resistance to and obstruction of its work.

In Sudan for example, the court faced outright hostility from the government of the country, but the court made some measurable progress in Uganda, Central African Republic, and Kenya. The biggest challenge the court has been facing is that fact that it is considered an external player in an internal affair of nations.

The primary role of the ICC is to help these states to foster a philosophy for the regard of the rule of law.  Also, they need to help combat impunity and human rights abuses, but the problem has remained the compliance of the judicial and executive arms of the government of these states more especially when it has to do with powerful figures from their countries.

Ordinarily, the ICC should perform the role of the “gentle civiliser” of state power in weak nations that are reluctant or incapable of bringing perpetra­tors to account but the problem faced by the court is that it cannot because it does not seek to replace the domestic legal and judicial processes of these states – it purpose like earlier stated is not to replace but to complement them to ensure that they incubate accountability.

The big question remains if the court is meeting up with its challenges from these countries and if it has legitimacy with internal protagonists such as senior officials, suspects, victims, and civil society of these countries so that it can accomplish its goals.

In Kenya for instance, the ICC enjoys broad support among the general public, but many senior government officials view it with trepidation and being an ethically polarised nation, the activities of the court could cause further ethnic polari­sation.

In Uganda, there was certainly hope that the ICC would induce the perpetrators to seek a political settlement, even though this has not happened yet. The government of the Central African Republic consistently cooperated with the ICC investigation team. However, in Sudan, the court has faced severe rejection from the officials of the government more especially after it issued an arrest warrant against President Omar al-Bashir. The activities of the ICC in Uganda, for instance, are based primarily on the atroci­ties committed by the Lord’s Resistance Army (LRA) under the direction of Joseph Kony who was its main leader.

This organisation continues to commit what can be described as the most abominable atrocities against civilians in states such as the Democratic Republic of Congo and the northern part of Uganda.[13] When the government of the country could not stop or contain the activities of the LRA, it self-referred the case to the ICC which returned indictments and issued arrest warrants for war crimes and crimes against humanity against five of the top LRA leaders – Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya but proceedings against Raska Lukwiya were terminated after his death, but the case against the other four, who remain at large, is being heard by the Court.[14]

The leadership of the group under Kony has refused to negotiate a peace deal with the government of President Yoweri Museveni unless the indictments are quashed, and the case dropped. Many International Human rights groups including the Amnesty In­ternational, have opposed any offers of amnesty to Kony and the LRA even if they were to sign a peace accord with the government of the country.

In Sudan, a country which remains Africa’s largest country by land mass, the country has been a troubled state since its creation by the Brit­ish due to a number of factors which includes a big divide between Arabised north and the black African south, religious and racial conflicts, competition over scarce resourc­es, and dictatorship by a violent but weak state. All these have combined to create one of the most horrible humani­tarian crises in the world today. There has been a long-running conflict between the north and the south which has abated for now, but the government of President Omar al-Bashir has been credibly ac­cused of war crimes, genocide, and crimes against humanity in Darfur[15], the western region that is home to black African Muslims.[16] Statistics gathered by the United Nations indicates that over 300,000 Darfurians were killed and about three mil­lion displaced in five years[17] and the govern­ment security forces working with the Janjaweed, an Arab militia, were said to be responsible for the atrocities.[18]

The Continued Necessity of African States Membership in the ICC

Relations among nations largely depend on the power that a government wields in the international community. The provisions of the UN Charter and several other international laws in the international system have continuously cast doubts on the sincerity of the international community in the doctrine of equality of nations and respect for the sovereignty of independent nations most especially those on the African continent who constitute the larger chunk of the Third World.

At the 35th NEPAD meeting in July 2016, African leaders decided that the economy of Sudan has been damaged as a result of the sanctions levelled on its government by the ICC.[19] Those who spoke at the AU summit criticised the ICC for failing practical tests and being caught up in procedural irregularities. However, Sudan took the lead in ensuring that African countries withdraw from the ICC; they asserted that the claim that the ICC was an international and independent is not yet realised in the African perspective.

Many African leaders have been tried for war crimes but quite recently the world witnessed the launch of the Mother of All Bomb (MOAB) by the United States to Syria Airbase which led to the loss of lives, and the international community has said nothing about this. Many developed nations of the world have committed more crimes than African leaders but were never questioned nor tried by the court, and this has made African leaders call for a mass withdrawal from the ICC. This research paper, therefore, critiques the continued relevance of the ICC and membership of African nations in the International Criminal Court.

African leaders have often maintained that the sanctions of the ICC on African countries have contributed to the growing tension in the region and also contributed to the underdevelopment of African nations. Joseph Chilengi, the presiding officer of the AU-ECOSOC, stated that Africa’s economies would continue to suffer as long as the ICC is damaging the international justice system. Joseph Chilengi said that “No American soldier or politician will ever appear at the ICC and most crimes go unpunished. ICC has allowed impunity for the forces that are allied to the USA,”[20]

Surprisingly, the United States which is seen as the police of the international system is among some States yet to ratify the Rome statute. African countries have unsuccessfully attempted to modify the Rome Statute to have powers to arrest leaders by the UN peacekeepers when wanted by ICC but this has not come to the limelight.  An economic consultant and Sudanese legislator, Babiker Mohamed noted that the United States had levied sanctions which have had a negating effect on the Sudanese economy because of the limitations of its economy which has led to an increase in the international debt of the country.[21]

African countries have therefore called for strategies to strengthen their international justice system instead of being subjected to foreign interventions that undermine their sovereignty. The African Union has however made efforts at having the protocol to expand the powers of the jurisdiction of the African Court on Human and people’s rights to include international crimes within the continent.[22] It has been stated by the officials of the African Union that Africa’s exit strategy has conditions that the universality of the ICC be upheld, political divisions within the Rome statute shouldn’t be introduced and attention provided over UN Security Council resolutions because the universal justice system is corrupted and that the consequences will eventually hurt the African  continent.[23]

In 2005, the International Criminal Court signed an arrest warrant against the President of Sudan, Omar al-Bashir over crimes against humanity which were committed in his country.[24] More recently, there was a case by the ICC against the current Kenyan President Uhuru Kenyatta and his deputy William Ruto which was later terminated for lack of sufficient evidence but the Russian leader, Vladimir Putin was said to have used against Crimea and more recently, he has reiterated  his support for the Syrian government despite the release of post-mortem results by Turkey that confirmed chemical weapons were employed in an attack that killed at least 72 people in North Syria.[25] The Russian president attacked “groundless accusations” that Damascus was responsible for the assault, and called for a “detailed and unbiased investigation into the deaths.”[26] If Russia were to be an African nation, it possibly would have faced attacks by the United States, and its leaders would have been locked down in the gallows. With Africa’s renewed push, if the continent pulls out of the court, it is believed that it will render the court ineffective.

The court has been accused of hiding evidence and witness tampering, with the latest case involving a judge who was said to have allegedly received millions of dollars in an offshore account to falsify the available evidence against al-Bashir. African leaders have also stated that judges at the ICC have never been lawyers or judges in their countries and therefore the court is not for Africa.[27]

All the same, the fact that such a court as the ICC exists has reduced the criminality and authoritarian tendencies of most African leaders. The immunity clause in the constitution of most African countries has made their leaders extremely corrupt, and there is a need for a check on these powers. African leaders are quick to blame their excesses and trials on discrimination, imperialism, and neo-colonialism – hiding under the cover of Pan-Africanism.[28] African leaders accused the tribunal of the ICC of bias and racism after then prosecutor Louis Ocampo indicted Sudanese President Omar al-Bashir of genocide and war crimes.[29]

In Africa, there are several leaders, mostly dictators, who rule the country ruling like monarchs and with the emergence of the ICC, they found out that it was now possible for them to be held accountable for the dictatorial nature of them leaderships. Many of these African nations did not take the risk of pulling out of the Rome Statute, been acutely aware of the criticisms they will face. Furthermore, activist groups could use the withdrawal of African states to draw attention to the inhumane treatment of their citizens in their states and encourage the rest of the world issue sanctions, place travels restrictions, and freeze assets.[30]

With the withdrawal of one of Africa’s frontier states, South Africa from the court, a state regarded as a pacesetter in regards to democracy and reverence for human rights in Africa has given other African states an opportunity to withdraw from the court. Nevertheless, the ICC is still a very relevant international organisation, but most of the African leaders are using racism as a cover-up to avoid being accountable for their actions. It was these same African leaders that pushed for an African to be the head of the ICC. The ascension of the current leader of the court, Fatou Bensouda from Gambia is significantly connected to the diplomatic moves of African leaders.

An African was made the head of the ICC since it will be difficult for African leaders to accuse a fellow African of racist tendencies and victimization as the Gambian government has described the court as an “International Caucasian Court.” recently, many African countries have withdrawn from the court due to the feeling of being subjugated by the international community and after the withdrawal of Burundi, The Gambia, and South Africa, other countries are in a haste to follow suit and this has generated mixed reactions.

In the ICC, ten cases are under investigation by the court and nine of these cases have to deal with African nations, and these cases were referred to the ICC by the governments of these nations yet, there is the claim of victimization and racism. ICC cannot execute arrests without the order of the government of the state, and this was why Al-Bashir was not arrested in South Africa. South Africa was largely criticised for its refusal to cooperate with the court, and such diplomatic complications led them to withdraw their membership. The Chief Prosecutor of the ICC, lost the crime case against the Kenyan President Jomo Kenyatta because the Kenyan government officials refused to cooperate with the court, obstructed the ICC finding missions, destroyed evidence  and frightened witnesses who were connected to the case.[31]

It has been noticed that the fact that most African nations are developing and developing nations has impacted negatively on their stand in the international system. Heads of governments of African countries are too quick to ratify conventions, treaties and protocols that come from the United Nations or any power country like the United States and the United Kingdom once there is a financial gain attached to such ratification without considering how such an international convention can be applied to their local laws and the impact it will have on them. The United States is yet to ratify the Rome Statute because of its reservations about its sincerity and labelled it as a flawed system, asserting that it tends to lead to a violation of national sovereignty and could be politicized but most African countries that did never took these into consideration. Former President of the United States, Bill Clinton while leaving office strongly advised his predecessor, President George W. Bush not to submit the Rome Statute treaty to Congress for consideration and this may be the reason many American citizens and the former President Bush wasn’t tried for war crimes despite the atrocious acts committed in Iraq and Syria. This is because the ICC has no jurisdiction in the United States, unlike the African countries.  There are also atrocities that have been committed by the government of world powers like Russia and China that have not been tried by the ICC; this is due to the fact that they are not a party to the Rome Statute and this is why they consistently support the government of Bashar Al-Assad a continue to inhumanity to humanity.

The United States and other powerful countries rather decide to try their officials instead of them being tried by the ICC. Heads of African countries who signed an agreement not turn in the United States citizens for prosecution are the same people calling for the trial of American citizens and also claiming racism when tried by the court. The problem is the insincerity of African leaders to decide cases within the continent appropriately. After all, the AU has decided to establish a court which will serve as an African Court of Justice which will concentrate on trying war crimes, genocide and crime against humanity but the question is to what extent this court be effective? This is the big question, but the court has so far been successful in prosecuting and sentencing the former leader of Chad Hissine Hibre. The major issue is that many of the African leaders who will establish the court are power-mad despots who have overstayed their welcome in the government house and are using series of violence to prolong their days in office. Such leaders are the Zimbabwean leader, Robert Mugabe, a nonagenarian who has ruled the country for decades and has caused a severe economic crisis for the country.

Many of these leaders are simply clinching on to power by reliving the life of Idi Amin or Mohammad Ghadaffi. The court will find it quite difficult to arrive at the indictment, prosecution or conviction of any African leader who is a sitting leader who has committed crimes against humanity, genocide or war. This is a challenge being faced by the ICC, and the organisation may need to be more independent and an impartial to ensure that Africans are happy to members.[32]

ICC has been labeled, but the fact that the court is biased become questioned when President Pierre Nkurunziza, a man who was said to have committed serious electoral violence signed for Burundi to leave the court to avoid his prosecution for the rights abuses that his government is said to be complicit of. Other countries such as The Gambia are simply copying other nations just as quick as they could before other nations also take the same step and become like superpowers who covet unnecessary attention to the nation when the world was paying no attention to the rights abuses of its government. The problem is that African leaders simply rule their countries like authoritarian kings and become ‘gods’ the moment they are voted or rig their way into office. They never take responsibility for the wrongs they do.

Despite staying in power for decades and having the power and funds to take their countries out of poverty, they simply enrich themselves and their cronies and blame more than half a century dead colonialism of their underdevelopment, which is a result of their corruption, and lack of vision and foresight. If truly one will listen to the allegation that the ICC is a Western-structured villain targeting Africans and its leaders, at least this court which is described as a vice was not forced on them as they would say is colonialism – they signed the treaty on their accord and had side arrangements disrupting the tribunal.


There is a need for the continued relevance of the ICC, and African countries membership is quite important. Although it is also of import that powerful nations of the world become members so as to stop African leaders from feeling that the court was set up to victimize them. Except for few, many of these African leaders treat their people worse than the colonialist did and most of the countries that are withdrawing from the ICC are those with tyrants who continue stay in power by executing, imprisoning and torturing their people. Pan-Africanism no longer remains the same; it has transformed over the years from accusing colonial masters to constructing advanced infrastructural communities across African soil to create progressive nations.

The work of the ICC in Africa raises lots of questions and has lots of political implications and on peacebuilding in the continent. It also has severe impacts on the rule of law and the struggle by these nations to end the impunity of their leaders and the government which seemingly makes Africans ask the question: are we in our country or are we, slaves?


[1] ICC, Understanding the International Criminal Court, p. 12, (2012). accessed April 16, 2017

[2] Ibid.

[3] Boell. C. “Perspectives: Political Analysis and Commentary from Africa,” p. 21, availableat: Accessed April 10, 2017.

[4] ICC, Understanding the International Criminal Court, p. 12, (2012). accessed April 16, 2017

[5] ibid

[6] BBC. (2013). “African Union Urges ICC to Defer Uhuru Kenyatta Case,” Available at: Accessed April 10, 2017.

[7] Voice of America, “Botswana, the African Union Disagree Over International Criminal Court Warrants,” (2013). Available at: Accessed April 13, 2017

[8] BBC, “African Union Urges ICC to Defer Uhuru Kenyatta Case,” 2013 available at: accessed April 15, 2017.

[9] ICC, “The ICC and Community-Level Reconciliation: In-Country Perspectives—Regional Consultation Report,” p. 11, 2011. Available at: Accessed April 15, 2017.

[10] ibid.

[11] Cletus Akwaya, Africa, The ICC And The Pursuit Of International Justice, 2017, available at accessed April 5, 2017

[12] Ibid.

[13] Human Rights Watch, Trail of Death, New York, 28 March 2010,, accessed 23 September 2010.

[14] ‘AU Washington College of Law: War Crimes Research Office – ICC Chronology’ (, 2017) <> accessed 23 April 2017.

[15] Ibid.

[16] Gérard Prunier, Darfur: A 21st Century Genocide, Ithaca, Cornell University Press, 2008.

[17] Marlise Simons, “Sudan’s Leader May be accused of Genocide,” New York Times, 3 February 2010, available at:, accessed 17 April, 2017

[18] Ann McFerran, The Curse of the Janjaweed, Sunday Times [London], 23 September2007,, accessed April 14, 2017.

[19] Mudi, M. AU renews calls on quitting ICC, says sanctions crippling Sudan economy, The Star, Jul. 18, 2016.  Available at: Accessed April 17, 2017.

[20] Mudi, M. AU renews calls on quitting ICC, says sanctions crippling Sudan economy, The Star, Jul. 18, 2016.  Available at: Accessed April 17, 2017.

[21] ibid

[22] ibid

[23] ibid

[24] Matthew W, Rowena M, Martin C and Emma G. Putin stands by Assad as firm evidence of chemical attack mounts, The Guardian, available at: accessed May 17, 2017

[25] Ibid.

[26] Ibid.

[27] ibid

[28] ‘Is The ICC Racist And Biased Or African Leaders Are Avoiding Accountability And Seeking Immunity – SMBC Gambia’ (SMBC Gambia, 2017) <> accessed 23 April 2017.

[29] Ibid.

[30] ibid

[31] Deutsche (, ‘Fatou Bensouda: Critics ‘Don’t Understand The ICC’ | Africa | DW.COM | 11.04.2017′ (DW.COM, 2017) <> accessed 20 April 2017.

[32] Cletus Akwaya, Africa, The ICC And The Pursuit Of International Justice, 2017, available at accessed April 5, 2017

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