Author: Her Honour Judge Sedinam Awo Kwadam (Mrs.)
Circuit Court 2
Adentan, Accra Ghana.
LLM Candidate, International Criminal Law and Justice,
Ghana Institute of Management and Public Administration (GIMPA)
Accra, Ghana.
Date: 25th November, 2024
AFRICA’S BETRAYAL OF THE ICC: FROM FOUNDING SUPPORT AND COOPERATION TO A STRATEGIC REJECTION
Abstract
This paper examines the evolving relationship between African states and the International Criminal Court (ICC), highlighting the initial support of African nations for the Rome Statute and the subsequent deterioration of this alliance.
It traces Africa’s leadership in establishing the ICC, driven by the continent’s experiences with mass atrocities such as the Rwandan genocide, and its commitment to combating impunity through the Dakar Declaration and early ratifications of the Rome Statute.
The paper also delves into the rift that emerged following the ICC’s issuance of an arrest warrant for the then Sudanese President Omar Al-Bashir in 2009, which African leaders viewed as evidence of disproportionate targeting of the continent. Critics of the ICC by African states include accusations of selective prosecution, interference in political stabilization, and violations of the immunity traditionally afforded to Heads of State. These grievances culminated in the adoption of Article 46A bis of the Malabo Protocol, granting functional immunity to African leaders.
The paper argues that this push for immunity reflects self-serving interests rather than legitimate concerns about the ICC’s impartiality. The paper further explores the structural limitations of the United Nations Security Council (UNSC) and its impact on the ICC’s operations, calling for reforms to address the imbalance of power held by permanent members. While acknowledging the ICC’s imperfections, the paper underscores its impartiality, as evidenced by recent actions beyond Africa, including issuance of arrest warrants involving Russian, Israeli and Hamas leaders.
Ultimately, the paper advocates for a focus on strengthening international justice mechanisms rather than diluting their mandate. It emphasizes the need for African leaders to champion reforms promoting fairness while upholding accountability for grave crimes, aligning with the foundational principles of the Rome Statute that they initially championed.
Table of Contents
I. Introduction
II. Africa’s Founding Support for and Cooperation with the ICC
III. Shifting Dynamics: Africa and ICC Relations turns sour
IV. A Strategic Rejection
V. Paradoxical Realities
VI. Conclusion
Introduction
The establishment of the International Criminal Court (ICC) marked a significant milestone in the global pursuit of justice and accountability for the most serious crimes under international law. Rooted in the Rome Statute (RS) which was adopted in July 1998, the ICC represents a collective commitment to ending impunity for the most serious crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression. African states played a pivotal role in shaping the ICC, actively contributing to its framework through initiatives like the Dakar Declaration and early ratifications, with Senegal becoming the first country worldwide to ratify the RS in 1999. Their leadership in establishing the ICC was grounded in a desire to address the continent’s historical struggles with mass atrocities and impunity, epitomized by events like the Rwandan genocide.
However, the relationship between African states and the ICC has undergone a profound transformation. While African nations initially championed the Court, a significant rift emerged following the issuance of arrest warrants for then Sudanese President Omar Al-Bashir in 2009 and further worsened by the issuance of arrest warrants and prosecution of the President and a state official of Kenya in 2011. This marked the first time the ICC indicted a sitting Head of State in the case of Al-Bashir and prosecuted a sitting Head of state and his deputy in the case of Kenya, prompting accusations of bias and selective prosecution against African leaders. Many African leaders, including notable figures such as Paul Kagame, expressed concerns that the ICC disproportionately targeted Africa while ignoring alleged atrocities in other regions. The perceived imbalance in the ICC’s focus became a rallying point for African states, leading to widespread criticism, non-cooperation, and even threats of collective withdrawal from the Rome Statute. This paper examines the underlying causes of this rift, exploring critiques leveled against the ICC by African states, including claims of selective prosecution, interference in political stabilization, and violations of customary immunities for Heads of state. It also considers the structural dynamics of the United Nations Security Council (UNSC), particularly the influence of its permanent members (the P5), as a key factor shaping the ICC’s operations. While African states have pointed to these issues as justifications for their discontent, this paper argues that the push for functional immunity, as evidenced by Article 46A bis of the Malabo Protocol, reveals a deeper concern: the desire of certain African leaders to evade accountability under international criminal law.
Amid calls for reforms to the Rome Statute and the ICC, this paper emphasizes the need to distinguish between genuine efforts to enhance the effectiveness of international justice mechanisms and attempts to undermine their mission. By tracing the historical evolution of Africa’s engagement with the ICC and examining the motivations behind its critiques, this paper seeks to contribute to a nuanced understanding of the challenges and opportunities facing international criminal justice in Africa and beyond.
Africa’s Founding Support for and Cooperation with the ICC
The historical foundations of the International Criminal Court (ICC) reveal that African states were not inherently opposed to ceding aspects of their sovereignty in favour of international justice. This is evident from key events leading to the ICC’s establishment.
In 1994, the Organization of African Unity (OAU) achieved a significant milestone with the end of apartheid in South Africa. However, the continent soon faced a devastating security crisis in April 1994, when the Rwandan genocide unfolded, highlighting the urgent need for mechanisms to address mass atrocities. In response, the International Criminal Tribunal for Rwanda (ICTR) was established as an ad hoc tribunal to deliver justice for the crimes committed. This served as a wake-up call for African states, prompting them to pursue the establishment of a permanent international criminal court to address impunity on a broader scale. By 1997, the Southern African Development Community (SADC) had rallied behind the idea, adopting principles of consensus that culminated in a unified stance supporting the establishment of the ICC.
On February 6, 1998, in Dakar, Senegal, OAU member states formally endorsed this vision through the Dakar Declaration on the Establishment of the ICC. The Declaration underscored Africa’s commitment to creating a permanent institution capable of prosecuting individuals, regardless of their political ranks or status responsible for genocide, crimes against humanity, and war crimes. It emphasized the need for an independent and impartial ICC, free from political interference, and stipulated that the court would exercise jurisdiction only when national courts were unwilling or unable to genuinely prosecute such crimes. The Dakar Declaration played a pivotal role in shaping the Rome Statute, which ultimately established the ICC. Its importance was reinforced during the OAU’s 67th Ordinary Session in Addis Ababa in February 1998 and the 34th Assembly of Heads of State and Government in Ouagadougou in June 1998, where the Declaration was formally adopted. African states committed to cooperating with the ICC and expressed trust in its guarantees of fair trial and the protection of the rights of accused individuals. Through these actions, African states not only demonstrated their collective desire to combat impunity but also actively contributed to the foundational framework of the ICC as a permanent international tribunal for the most serious crimes under international law.
Between June and July 1998, the Diplomatic Conference of the International Criminal Court (ICC) in Rome saw the participation of approximately 43 member states of the Organization of African Unity (OAU), constituting the largest regional bloc at that Conference. African states actively supported the establishment of a permanent, independent, impartial, and effective ICC. On July 17, 1998, the Rome Statute, the treaty that created the ICC, was adopted by 120 states, more than 40 of which were African. Prominent African figures played crucial roles in shaping the Rome Statute. Mr. M. Cherif Bassiouni, an esteemed Egyptian expert in international criminal law, served as the Chairman of the Drafting Committee. Phakiso Mochochoko of Lesotho, as Vice-Chairman of the Rome Conference, significantly contributed to the formulation of Part 9 of the Statute, which addressed international cooperation and judicial assistance. Additionally, South Africa’s delegate served on the Drafting Committee, further highlighting Africa’s active involvement in the process.
Following the adoption of the Rome Statute, the African Commission on Human and Peoples’ Rights, during its 24th Ordinary Session in Banjul, Gambia, urged all states parties to the African Charter on Human and Peoples’ Rights to undertake constitutional procedures to sign and ratify the treaty. It also encouraged states to take the necessary legislative and administrative measures to align national laws and policies with the Statute.
Africa’s leadership in supporting the ICC was further evidenced by Senegal becoming the first country globally to ratify the Rome Statute in February 1999. Uganda later became the first state party to refer a situation to the ICC, involving the Lord’s Resistance Army (LRA). This was followed by the Democratic Republic of Congo’s (DRC) self-referral in March 2004, which led to the prosecution of Thomas Lubanga Dyilo, and the Central African Republic (CAR), which made its first self-referral in 2005.
These actions underscore Africa’s significant contributions to the establishment and operationalization of the ICC, reinforcing the continent’s commitment to combating impunity and upholding international justice.
Shifting Dynamics: Africa and ICC Relations turns sour
The issuance of arrest warrants by the ICC for the then Head of State of Sudan, Omar Al-Bashir, the first warrant issued on March 4, 2009, following a referral by the UNSC , marked the beginning of a significant rift between African states and the ICC. This rift emerged between parties that were once considered close allies. Although Al Bashir remains at large, the arrest warrants issued by the ICC are landmark events. This would be the first time that an international criminal court had considered whether a serving Head of State had immunity under international law in international criminal proceedings. While both Slobodan Milosevic of the former Federal Republic of Yugoslavia and Charles Taylor of Liberia had been tried for war crimes and crimes against humanity before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL) respectively, neither were serving Heads of state when they were brought into the custody of the international tribunals. Acting under Chapter VIl of the UN Charter, which empowers the UNSC to take measures to restore international peace and security, the Security Council referred the situation in the Libyan Arab Jamahiriya (Libya) since 15 February 2011 to the Prosecutor of the ICC. An arrest warrant was issued for Muammar Mohammed Abu Minyar Gaddafi for crimes against humanity allegedly committed in Libya. Further, in 2011, following post-election violence in Kenya, the President and a state official were arrested and subjected to the ICC’s criminal procedure.
Reacting to the first arrest warrant issued for Al-Bashir in 2009, H. E. Jean Ping, Chairperson of the African Union in 2009, encapsulated the sentiments of many African leaders and scholars at the time with his remark: “International justice seems to apply its fight against impunity only to Africa as if nothing were happening elsewhere—in Iraq, Gaza, Colombia, or in the Caucasus.” These words echoed the widespread perception in Africa that the ICC was disproportionately targeting the Continent’s leaders, a sentiment that intensified in the immediate aftermath of the issuance of the arrest warrant for Al-Bashir. Al Bashir himself was of the view that the arrest warrants were illegitimate, as he believed that the ICC stood as a tool of neo-colonialism used by Western countries to terrorize seemingly disobedient Third World nations. The Arab League and the African Union criticized the ICC’s action, fearing it will hamper peace efforts in the region. Jean Ping’s statement, as quoted earlier, suggests that Africa’s relationship with the ICC deteriorated significantly following the issuance of an arrest warrant for Al-Bashir. In response to this development, African states and the African Union (established in July 2002) adopted a series of measures rejecting any further cooperation with the ICC.
They contemplated and advised a collective withdrawal from the ICC, thereby challenging the Court’s legitimacy and questioning its impartiality. The core concern of African states was the perception that the ICC disproportionately targeted African leaders while ignoring alleged culpability of leaders from other regions.
Paul Kagame, President of Rwanda, speaking to the British-Sudanese telecom tycoon and philanthropist, Mo Ibrahim in 2018 said, “The ICC was supposed to address the whole world but it ended up covering only Africa. From the time of its inception, I said there was a fraud basis on which it was set up and how it was going to be used. I told people that this would be a court to try Africans, not people from across the world. And I don’t believe I have been proven wrong.”
Gissel explains further the African critique of the ICC as follows:
i) Selective Prosecution; Until January 2016 when the ICC lunched an investigation into the situation in South Ossetia, Georgia, the ICC only prosecuted African Individuals. This is found suspicious by African states.
ii) Interference with Political Stabilization Efforts; The prosecution and investigation of the Heads of State of Sudan, Libya and Kenya undermines the promotion of reconciliation and peace in Africa.
iii) UNSC Abuse; The conduct of the UNSC has been criticized by the African States. UNSC’s deferral powers have been said to be exercised in a manner discriminatory to the African States.
iv) Violation of Custom Head of States Immunity; African States deemed the UNSC and the ICC’s prosecution of Heads of Non-States Parties as a violation of customary international law on the immunity of senior state officials.
The African states’ concerns regarding the ICC’s operations culminated in the adoption of Article 46A bis of the Malabo Protocol. This provision grants functional immunity to serving African Union (AU) Heads of State or Government, individuals acting in such capacities, and other senior state officials, shielding them from prosecution for actions performed in the course of their official duties during their tenure. In 2016, this growing discontent led to significant developments: Burundi, South Africa, and The Gambia announced their intention to withdraw from the Rome Statute. Kenya also hinted at the possibility of following suit after its Head of State, Uhuru Kenyatta, was subjected to ICC proceedings related to the post-election violence in 2007–2008. These events underscored the mounting frustration of African nations with the perceived bias of the ICC.
The misgivings of African states about the ICC’s operations appear to center on the Court’s ability to investigate and prosecute sitting Heads of State and other high-ranking officials. Initially, African states were strong supporters of the ICC, actively cooperating in the Court’s investigations and prosecutions of individuals. However, this relationship shifted dramatically once a sitting Head of State, A-Bashir, was indicted for the first time since the establishment of the ICC. This raises the pressing question: What changed?
It has been argued that the deterioration in relations stemmed from the particular individuals subjected to ICC processes. While the ICC, like any institution, was never without flaws, its imperfections seemed tolerable when those it investigated and prosecuted were figures deemed undesirable by African leaders, individuals whose actions were perceived as threats to peace, security, or even the political stability of those in power. The apparent ability for the ICC to activate its jurisdiction over sitting Heads of state in compliance with Article 27 of the Rome Statute , thereby stripping them of immunities they enjoy under customary international law came as a rude awakening for the African Heads of state who, prior to 2009, had fully supported the Court in its pursuit of criminal accountability of other Africans referred to it. The ICC’s imperfections became glaringly problematic for African Heads of State when it became clear that they, too, could be held accountable under the same system. This realization agitated African leaders and thus spurred their demand for reforms to the Rome Statute (RS), accompanied by a wave of non-cooperation and threats of mass withdrawal.
A Strategic Rejection
In response to these widespread agitations, the African Union (AU) Assembly established an open-ended committee of Foreign Affairs Ministers to address concerns about the ICC. Between 2009 and 2013, the AU’s position on the activities of the ICC in Africa were a concern over the politicization and misuse of indictments against African leaders by the ICC as well as at the unprecedented indictments of and proceedings against the sitting President of Kenya in light of developments in Kenya. The AU, among other things, expressed its strong conviction that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace. By early 2017, the committee had drafted a strategy paper outlining legal, institutional, and political reforms targeting the ICC, the UNSC, and the RS itself. The strategy also explored the possibility of a collective withdrawal from the RS, underscoring the AU’s relentless determination to address these perceived injustices.
Now, the primary objective of the Rome Statute was to end impunity for leaders, particularly in cases of human rights abuses. Recognizing that Heads of State often wield immense, and at times unchecked power; power that can lead to the violation of their citizens’ rights, Article 27 of the RS removes any immunity for Heads of State and other officials under the ICC’s jurisdiction. Notably, African Heads of State were instrumental in shaping this provision, ratifying it. Theoretically, Article 27 was a critical step towards accountability and justice. However, its application to sitting African Heads of State revealed a stark shift in perception. This suggests that the strong reaction from African states to Article 27’s enforcement is largely an afterthought. If these concerns had been raised earlier, when the ICC was investigating and prosecuting other Africans, often through self-referrals by these same leaders, their critiques might carry greater legitimacy and consistency. Instead, the current posture of many African Heads of State appears to advocate for a selective application of the rules on international criminal accountability. While they seem untroubled by the ICC’s pursuit of other Africans, they object when its focus turns to their peers or themselves. This selective stance undermines the credibility of their critique of both the ICC and the RS framework, casting doubt on the authenticity of their calls for reform.
I concur with Mamadou Diallo, a Public International Law expert at Chaick Anta Diop University in Dakar, Senegal when he told the DW that, “it was the States themselves who went to court and not the other way round. From this point of view, there is no problem because the crimes there have been in Africa, many in Africa and the states concerned have decided to refer the matter to the court, the court exercises its criminal jurisdiction.”
The cases brought before the ICC often originate from situations in Africa, referred either directly by African states themselves or through the UNSC. In these cases, Africans, sometimes including Heads of State, are accused of bearing criminal responsibility. As a result, there is a perception that the ICC disproportionately targets African leaders. However, as seen from other non-African situations, when situations from non-African regions are referred to the ICC, they undergo similar processes. The ICC has not demonstrated bias in its handling of referrals. Instead, any disproportionate focus on Africa stems from the frequency of African situations brought to its attention, sometimes by African States Parties themselves, and not necessarily from the Court’s conduct in investigating and prosecuting the said situations. The imbalance in referrals largely reflects the structure of the UNSC, particularly the outsized influence of its permanent members (the P5) and their veto powers, rather than any flaw inherent in the Rome Statute or the ICC itself. Addressing this structural issue requires UN member states, including African nations, to advocate for comprehensive reforms of the UNSC, rather than shifting blame onto the ICC.
Moreover, recent developments, such as the ICC’s arrest warrant for Russian President Vladimir Putin, Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minsiter Yaov Gallant and Hamas leader Ibrahim Al-Masri should reinforce confidence in the ICC’s impartiality. These actions demonstrate that the Court is not exclusively focused on Africa but applies its mandate globally, regardless of the individuals involved.
The path ahead for African Heads of State should focus on pushing for reforms within the UNSC, particularly regarding the P5 and its veto powers, rather than seeking immunity from international criminal accountability simply because they hold office. Their advocacy should aim to ensure a level playing field in the global justice system, not to shield themselves from scrutiny.
Africa’s historical role in shaping the RS and the establishment of the ICC underscores the irony of its current antagonism. This shift appears less rooted in principled critique and more in the self-serving desire of some African leaders to avoid accountability for abuses of power and human rights violations. Such a stance undermines the very principles of justice and equality that the ICC and the RS were created to uphold. Immunity for crimes as grave as those listed in Article 5 of the Rome Statute, genocide, war crimes, crimes against humanity, and crime of aggression, should never be granted under any pretext. Seeking functional immunity for such heinous crimes in the name of fairness for African leaders not only weakens the push for global justice but also betrays the collective aspiration for a peaceful and secure world for all. Accountability must remain universal and uncompromising, regardless of rank or region.
I unequivocally concur with the Chief Prosecutor of the ICC, H.E. Karim A. A. Khan when he said, “…unless we look at individual conduct, these cycles of violence, these generational traumas that individual victims and communities feel continuous and then there is no hope of peace and justice at all.”
The accountability demanded of African leaders through the Rome Statute and its ICC is precisely what African states agreed to when they signed the Statute in July 1998. While no system is without flaws, any efforts to address these imperfections must prioritize the principles of justice and fairness, rather than being driven by the self-serving interests of certain leaders to have immunity for their impunity. Clearly, the issue is not really with the RS or the ICC as institutions, it lies in the desire of some African Heads of State to secure functional immunity, as evidenced by Article 46A bis of the Malabo Protocol, which explicitly grants such immunity. This provision of Article 46A bis of the Malabo Protocol starkly reveals the true intentions of sitting African Heads of State: to shield themselves from accountability rather than to address perceived concerns about the fairness or effectiveness of the ICC. It is imperative, therefore, to approach their calls for reform with caution and scrutiny. While reform is a natural and necessary part of any system’s evolution, it must not be allowed to dilute the core mission of the ICC, ensuring accountability for the gravest crimes, regardless of who commits them.
In this context, any reform of the RS and the ICC should be carefully considered, resisting undue influence from parochial interests. The focus must remain on strengthening the global framework for justice, rather than accommodating attempts to undermine it for the sake of political expediency.
Paradoxical Reality
The relationship between African states and the ICC reveals an intricate narrative of hope, disillusionment, and a sustained struggle to harmonize justice with power. African nations, previously the ICC’s most enthusiastic proponents, played a pivotal role in its establishment, motivated by a collective desire to confront the legacies of impunity and human rights violations that have plagued the Continent. Retrospectively, the horrors of the Rwandan genocide and other mass atrocities underscored the need for a permanent international criminal tribunal to address crimes of such impunity and gravity. These efforts culminated in the adoption of the Rome Statute in 1998, the embodiment of the ideal of universal criminal justice and the determination to hold perpetrators of genocide, war crimes, and crimes against humanity accountable, regardless of status or location.
The initial optimism surrounding the ICC has shifted to skepticism, particularly after Sudanese President Omar Al-Bashir’s 2009 indictment for crimes against humanity and genocide. This was the first time the ICC issued an arrest warrant for a sitting Head of State, sparking praise for justice from some and fierce criticism from African leaders who saw it as evidence of the ICC’s disproportionate focus on Africa. They argued that the Court was targeting African leaders while overlooking crimes committed by individuals from powerful states.
This debate exposes a deeper philosophical paradox: justice, as an ideal, should be universal and impartial, holding all individuals accountable regardless of power or rank. Yet, global politics often shape the enforcement of justice, with power structures and political interests influencing decisions, as seen with the UNSC’s role in ICC referrals. For many African states, the UNSC’s dominance by the P5 with veto powers symbolizes structural inequities, leading to calls for reform.
The push for functional immunity by some African leaders complicates the critique of the ICC. Provisions like Article 46A bis of the Malabo Protocol, which shields AU Heads of State and senior officials from prosecution, suggest that these leaders seek immunity to evade accountability, not to promote justice. This raises moral questions: Is justice still just if it exempts those in power? Can selective accountability retain moral legitimacy?
This tension exposes the paradox of Africa’s relationship with the ICC. While African states played a key role in shaping the Rome Statute, advocating for universality and equality, their resistance to the ICC when it targets their leaders undermines these ideals. This inconsistency risks delegitimizing their calls for reform, as it appears driven more by political protection than a desire for genuine structural change.
Conclusion
Moving forward, African leaders must balance critique with accountability. They must advocate for reforms to address the UNSC’s structural inequalities, particularly the veto powers of the P5, which allow powerful states to evade scrutiny while weaker states face disproportionate attention. At the same time, African leaders should reaffirm their commitment to the ICC’s core principles, ensuring no one is above the law, regardless of rank or region. Rejecting immunity provisions that dilute the ICC’s mission is essential for upholding accountability as a cornerstone of good governance and moral leadership.
Africa’s role in establishing the ICC provides a strong moral foundation for this stance. The Continent’s leadership in confronting impunity in the 1990s should remind African leaders of the principles that guided their efforts. Retreating from these principles would betray the ICC’s mission and undermine the aspirations for peace, security, and dignity. Philosophically, justice must transcend power. It is not a tool for the powerful to wield against the weak but a universal principle binding all of humanity.
Seeking immunity undermines this principle and perpetuates a system where might makes right. As highlighted by ICC Prosecutor Karim A.A. Khan: “Law gives an advantage to those who have studied it, but Justice is everybody’s birthright.” Embracing universal accountability reaffirms Africa’s commitment to justice as both a moral ideal and a practical necessity for peace.
In conclusion, the relationship between African states and the ICC is a struggle to reconcile justice with power. The path to reform must strengthen fairness and equality, not erode them. African states have a unique opportunity to lead efforts to enhance the ICC’s impartiality while rejecting immunity provisions that weaken its mission. By doing so, they can honour the vision that inspired the ICC’s creation and contribute to a world where justice knows no ranks or borders.
