Established through the Rome Statute, the International Criminal Court (ICC) is a court of last resort that has the power to exercise jurisdiction over individuals for very serious crimes (genocide, war crimes and crimes against humanity) that raise international concern.
Currently, 124 states are party to the Rome Statute. This means that these states have voluntarily chosen to be members of the court. The United States, China, Japan, India, Pakistan, Israel, and Turkey have not ratified the treaty and are therefore not under the jurisdiction of the court.
So far 39 individuals have been indicted in the ICC all of whom have been African. With the exception of Georgia, the courts current “situations under investigation” are all in Africa. This focus on African cases has led to allegations that the ICC unfairly targets Africa. This issue has gained prominence with Burundi, South Africa and Gambia issuing formal notice of their intentions to withdraw their membership.
With 34 states that are party to the Rome Statute, Africa is the largest bloc in the court. If the court unfairly targets Africa, why then does Africa have such a large presence in the court?
The Rwandan genocide of 1994 and Africa’s need to find ways to prevent stronger countries from preying on weaker ones have been given as the main motivations for African states strong support of the establishment of the ICC (Brookings 2014). In an ICC forum on the issue of Africa being inappropriately targeted, experts attribute Africa’s submission to the ICC to the continents inability to manage its violence. The ICC exists to step in when the state fails to effectively protect citizens from harm. According the Fragile State Index 2016, all African states currently manifest several attributes of fragility such as poor functioning of public services, and the erosion of legitimate authority.
With the fragility of Africa in mind, it can be said that the failure of African states has led to its involvement with the ICC. The self-referral of cases by states to the ICC can be viewed as a recognition of this fragility. Out of the situations under investigation in the ICC, the cases in Mali, Central African Republic (CAR), Democratic Republic of Congo (DRC) and Uganda, have been referred to the court by the governments of these countries. African states should not completely pass on their responsibility to the ICC. Effective legislation, investigation and prosecution is needed. Senegal and the African union can be applauded for taking key steps through the establishment of the Extraordinary African Chamber which was established to try crimes that were committed in Chad from 7 June 1982 to 1 December 1990 during the regime of Hissène Habré.
In an article for the guardian, Kofi Annan reminds those who are of the opinion that Africa is the sole focus of international justice that historically international criminal tribunals were set up at Nuremberg and Tokyo following the second World War and more mixed tribunals were set up after the cold war in Lebanon, Cambodia and Yugoslavia. At present, along with the investigations in Georgia, the ICC is conducting preliminary examinations in Afghanistan, Columbia, Ukraine, Iraq and Palestine (the guardian 18 November 2016).
Although Africa’s complaints regarding ICC bias threatens the courts legitimacy, similar shortcomings exist with regards to other issues. the fact that only 2 of the 5 permanent members of the United Nations Security Council, the UK and France, are signatories to the Rome Statute has opened the court up to criticisms of double standards in that states that are leaders on the global stage undermine the legitimacy of the ICC by not leading by example. Additionally, withdrawal from the ICC has not been limited to Africa alone, Russia has signed a decree to withdraw from the Rome Statute and in response to western criticism of killings unleashed from his war on drugs President Rodrigo Duterte labelled the ICC as “useless” for the failing to understand the reasons for his crackdown (Reuters 17 November 2016). In a political arena where states have competing objectives and the most powerful choose not to be a part of the ICC, the legitimacy of the ICC will continue to raise questions and further revolt.
Featured image| Netherlands, The Hague, International Criminal Court | Wikimedia commons
The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of The Best of Africa.
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