Perspectives #01/2012: A Fractious Relationship - Africa and the International Criminal Court

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The launch of the International Criminal Court (ICC) on 1 July 2002
provided the international community with a permanent global tribunal to
prosecute individuals for genocide, crimes against humanity, and war
crimes. Building on the work of the ad hoc tribunals for Rwanda and the
former Yugoslavia that were established by the United Nations in the
1990s, the creation of the ICC stemmed from the growing international
desire to end impunity of those responsible for most serious crimes.

Ten years into its existence, the Court handed down its first
judgment on 14 March 2012 – finding Thomas Lubanga Dyilo guilty of
conscripting child soldiers in the conflict in the eastern region of the
Democratic Republic of Congo (DRC). The decision was rightfully
celebrated around the world as a milestone for international criminal
justice and demonstrated the Court’s determination to end impunity and
secure accountability for grave violations. It, however, also provided
further fuel to those who hold the notion that the ICC unfairly targets
African leaders and that it, in the words of Rwandan President Paul
Kagame, “was made for Africans and poor countries”.
Although there continues to be widespread popular support across
the African continent for the ICC and its mandate to prosecute
high-level individuals accused of perpetrating international crimes,
strong anti-ICC sentiments are brewing among parts of Africa’s political
elite and state actors.
Yet, if the Court is to work effectively and endure the tensions
within international political system, it will need the continuing
support of governments, and their citizens.
The African Union (AU) has become centre stage for the political
contestation surrounding the Court. At a meeting in mid-May 2012 the
Ministers of Justice adopted a draft protocol that brought a decisive
step closer the realisation of an African Court of Justice and Human
Rights invested with international criminal jurisdiction. Whether the
African Court will be complementary or competitive with the ICC remains
unclear. However, many observers are concerned that this initiative is
less intended to advance the reach of international criminal justice but
rather to frustrate the work of the ICC and possibly will provide a
haven for Africa’s political establishment to escape accountability.

How the Africa-ICC imbroglio can be resolved admits of no
easy answers. Some observers urge that the ICC has to become more
nuanced in its communication with the African continent and improve its
understanding about the political dynamics of the environments it is
engaging with; the complexities of which are adeptly highlighted in
George Kegoro’s analysis of the Court’s intervention in Kenya. Tim
Murithi in his contribution even provokes that in order to prevent the
AU-ICC relationship from complete collapse, the Court would need to stop
only invoking its legal mandate and at times accept the political
dimensions it is caught up in.
Others, like Nicole Fritz, emphasise that proactive
complementarity - capacitating national jurisdictions in a way that they
are able to try crimes incorporated in the Court’s Statute - is the
most effective long-term policy response to ensure the best possible
working of the ICC and international criminal justice.

Notwithstanding the contentious political dynamics
surrounding the ICC, it is important to not lose sight of what the
Court’s main purpose should be: to serve the interests of victims,
including the thousands who survived the gravest crimes on the African
continent. Those men, but more especially women and children, who still
too often feel not enough cared for in the process of advancing justice
as both the contributions by Ouattara and Scanlon remind us.

It is our hope that this edition of Perspectives will shed
light on the diversity of the ongoing debates surrounding the ICC and
inspire further discussion on ways of how to achieve a more
collaborative relationship between Africa and the Court in order to
ensure continent’s continued and meaningful involvement in the
international criminal justice project.

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Please visit the Website of the Heinrich-Böll-Stiftung in Southern Africa for further informations.


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