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Africa and the International Criminal Court

Published on June 8, 2009        Author: 

This week African States Parties to the Rome Statute of the International Criminal Court will meet in Addis Ababa, Ethiopia to assess the work of the ICC in relation to Africa. The meeting is significant as all of the current situations and cases under investigation and being prosecuted by the ICC arise from the African continent. The meeting is convened pursuant to a decision of the Assembly of the African Union (Assembly/AU/Dec. 221 (XII), Feb. 2009). According to that decision, the purpose of the meeting is to:

to exchange views on the work of the ICC in relation to Africa, in particular in the light of the processes initiated against African personalities, and to submit recommendations thereon taking into account all relevant elements.

The decision to convene the meeting arises out of concern and in some cases anger following the request for an arrest warrant for President Omar Al Bashir of Sudan (discussed on this blog here, here, here, here and here)  in relation to the situation in Darfur. The organs of the AU and individual African States have expressed deep concern at that indictment arguing that it will undermine the quest for peace in Darfur. Both the AU and the Arab League requested that the UN Security Council defer the Bashir case under Article 16 of the ICC Statute and have expressed frustration that thus far the Security Council has failed to do so. In addition, some  African States have argued that the ICC seems to be targeting Africa unfairly and point to the fact that all the cases before the Court relate to African situations while the Court appears to have ignored equally serious situations in other parts of the world (see reports here and here). Some have even called for African States to withdraw from the ICC Statute and it has been reported that Senegal, the first State to ratify the ICC Statute, is actively considering withdrawal (see here).

Despite the tensions arising out of the Bashir Indictment it appears that there is still significant support for the ICC among African States. It is important to remember that 3 of the 4 situations being investigated by the ICC arise out of self-referrals of situations to the ICC by African States (Democratic Republic of Congo, Uganda and the Central African Republic). Moreover, institutions in each of those States have recently expressed support for ICC prosecution of persons indicted by the Court. In particular, the Ugandan government argued (see  here) in recent proceedings in the ICC in favour of the admissibility of the ICC cases against the Joseph Kony and other leaders of the Lord’s Resistance Army (for March 2009 admissibility decision see here). Just last week, the government of the DRC argued in favour of admissibility in Prosecutor v. Katanga & Ngudjulo (see transcript here) and opposed the request of the defence that accused should be released by the ICC. Likewise, the Cour de Cassation in the Central African Republic has also taken the view that the judiciary in that country is unable to prosecute those situations under investigation by the ICC. Also, it has been reported that Tanzania has offered to accept persons convicted by the ICC (Hat Tip to ICC Observers).

Thus far, it appears that African governments are very happy when the ICC prosecutes rebels and non-State actors but unhappy when government officials (and moreso a Head of State) are indicted. These reactions are probably to be expected. Given that African States were strong supporters of the Court (and constitute the largest regional grouping of States Parties) and because major world powers like the US, China, Russia, India have failed to ratify the ICC Statute, any clash between Africa and the Court will be a serious blow for the credibility of the Court. It is therefore important to address these issues. It is probably not a coincidence that the President of the ICC travelled to a number of African States on an official visit last week. He will have hoped that this visit will help to shore up support among African States. How the Court addresses these issues will be closely watched by others around the world.

 Note: Dapo has acted as consultant to the Commission of the African Union in preparation for the meeting discussed above

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