Protecting Justice or Picking on Africa? The AU and the ICC

African leaders concluded recently that they would not opt out of the International Criminal Court (ICC). However, many of them have demanded reforms. For example, some leaders have called for the ICC to avoid prosecuting sitting African heads of state. It is very likely that the ICC will make concessions on this demand to avoid complete withdrawal by African states; former United Nations Secretary General Kofi Annan, recently opposed to the ICC withdrawal, has offered the organization more credence.

The International Criminal Court exists (in most cases) to act in the place of states that lack the internal legal or structural capacity to deal with crimes against humanity and war crimes. That is, it has the responsibility to protect (not to be confused with the R2P intervention doctrine) populations and countries from war crimes through providing a meaningful legal deterrent. There is an international obligation, as recognized by some African states that endorse ICC investigations and trials, to protect those whose lives are at risk and are without proper protections of a legitimate state. Yet, significant resistance remains to this institution and policy.

There are several schools of though on the issue of international law and Africa. One is that of anti-apartheid hero Archbishop Desmond Tutu of South Africa. To Tutu and ideological brethren, it is simply wrong for Africa to “disengage” from international law and norms. They reason that an Africa that is operating outside of the international legal system will encounter domestic legal challenges that are, by far, worse than current ones. In other words, there emerges a legal vacuum of sorts, which will see very concerning human rights and security vulnerabilities emerge. Arguing in the New York Times recently, Desmond Tutu noted that, “Those leaders seeking to skirt the court are effectively looking for a license to kill, maim and oppress their own people without consequence.”

The second is the Pan-African or Afrocentric school, which reject African involvement in the International Criminal Court. This school of thought “wants out” of the ICC. According to this school, the ICC is simply an instrument of the West which is used for regime change, the imposition of Western values on Africans, or other forms of neocolonial subjugation. These are just a few of the myriad of reasons this school offers, for the withdrawal of Africa from the ICC. Of late, this school has used the ongoing saga of Kenya as the strongest contemporary case against the ICC. They argue that the ICC has launched a witch-hunt against the current Kenyan President, Uhuru Kenyatta, and his vice president, who are in office because of “free and fair” elections, which the West seeks to subvert.

Thus, to this school, these two leaders’ attendance and pledge to cooperate with the ongoing ICC case against them is seen as an embarrassment of the ICC, instead.  Kenyan leaders are clearly not happy with the ICC’s process. It has been suggested that their trial attendance is merely an attempted symbolic blow for the ICC, who are thought to be trying a “legitimate regime.” This would explain why it has even been suggested that such trials should be postponed until leaders are out of office. That is precisely what the AU called for; that sitting heads of state not be tried. This would seem a very complicated proposal, with many questions accompanying it. It is likely that there will be concessions made.

Finally, we have a school that seems to argue that, yes; it is true that the ICC tends to “pick” on Africa a lot. However, they reason that a withdrawal is not a very realistic proposal. Instead, they argue, the ICC ought to be called out on their unfair treatment of African states and leaders. Through such pressure, they believe, the ICC will step back and do some introspective examination of the institution as relates to Africa, as well as make some concessions. In this way, they believe, the ICC’s attitude towards Africa will change. In other words, with enough pressure, perceived ICC shortfalls could be overcome. Furthermore, this school also proposes that before a case reaches the ICC, the domestic legal system of the concerned African state must be exhausted, or the AU fully consulted with and listened to on these cases. The ICC ought to only be operating as the fallback, instead of “interfering” in independent or “elected” state affairs, concludes this school.

While this is a heated issue that has, to an extent, seen some African leaders pen-ready to cross out their signatures to the ICC’s founding document, the Rome Statute, it is difficult to see an exodus away from the ICC. Countries like Botswana, Liberia, to some extent South Africa and emerging regimes like South Sudan will have great trouble imagining an Africa without ICC enforcements. Desmond Tutu could be right that signing out of the Rome Statute makes little sense, but he comes short of acknowledging a critical point, that of the stalemate between some African leaders and the ICC, as well as some valid questions that have been raised in this very debate.

Those advancing the ICC withdrawal are also short on solutions. For example, what would be the consequence of having a leader tried on the continent and sentenced in a select African state? What does that do for inter-state relations, if multiple states were involved in a particular conflict, such as the ongoing civil war in the Congo? That is not to say Africa is not capable of establishing its own international court system. For example, a country like Botswana or South Africa would have the capacity, legal and otherwise, to establish or house such an institution. However, many questions and hurdles both known and unknown do remain. Perhaps there is a strong theoretical case for an independent “African” international court, while the practicality reveals major challenges.

Then, those pushing for a solution to the problem, by not abolishing but fixing what is already in place, have the stronger case thus far. However, as times and systems evolve, their argument could weaken, if, for example, another region of the world or even Africa established its own such system. The challenge, nonetheless, would be the feasibility of such a system. It has taken the ICC and its ad-hoc predecessors for Rwanda and Yugoslavia a long time to develop, and challenges remain. Perhaps what is needed now more than anything, is co-operation between the ICC and African Union states. Because not all African states currently have strong domestic legal structure to address crimes that are committed at home, it is hard to imagine an operation that would exclude the ICC. As noted earlier, the ICC is there to compensate, as a legal buffer, where law does not exist or is selectively upheld. Could the African Union build a better system? Perhaps. However, it is difficult to see such a development fully come to fruition in the foreseeable future. The establishment of such a system works in sync with the pace of the continental-wide development process. Therefore, considered through this prism, it is indeed too early to see a withdrawal from the ICC for African states; reform, not retreat, will be the order of the day.

-Tshweu Moleme

(Tshweu Moleme is a South Africa analyst with the BRICS Research Group at the Munk School of Global Affairs, University of Toronto)