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FALQs: The International Criminal Court and Africa

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This blog post is part of our Frequently Asked Legal Questions series.

Recently, three African countries initiated a process to withdraw from the Rome Statute of the International Criminal Court (the Rome Statute).  On October 18, Burundi’s president signed legislation to withdraw from the International Criminal Court (the ICC), the first country to do so.  The following day, South Africa announced its intention to follow suit by submitting a written notice of withdrawal to the United Nations Secretary-General.  Not long after, on October 25, 2016, The Gambia, using particularly colorful language in which it referred to the ICC as “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans,” announced that it, too, was going to withdraw and, on November 10, 2016, submitted its written notice to the Secretary-General.

Courtroom One Gavel. (Photo by Flickr user Joe Gratz, Mar. 23, 2006).
Courtroom One Gavel. (Photo by Flickr user Joe Gratz, Mar. 23, 2006).

It seems likely that more African countries are going to pull out.  In September 2013, the Kenyan parliament adopted a motion to “suspend any links, cooperation and assistance” to the ICC.  In November 2015, the Namibian government agreed to withdraw from the Rome Statute Some political parties in the Republic of the Congo are pushing for the country’s withdrawal.  It would also not come as a surprise if Uganda, which has been critical of the ICC and whose president recently praised Burundi, The Gambia, and South Africa for withdrawing, were to do the same.

This post tries to put into context the recent announcements of Burundi, The Gambia, and South Africa by discussing the evolution of the ICC-Africa relationship since the establishment of the institution.

1. How many African countries have ratified Rome Statute?

Thirty-four of the fifty-four African countries have ratified the Rome Statute.  Senegal ratified it on February 2, 1999, making it the first country in the world to do so.  Côte d’Ivoire, the most recent African country to ratify the Rome Statute Statute, did so in February 2013.

It appears that at least twelve of the countries that had ratified the treaty have or are in the process of enacting domestic legislation for its implementation.  While this may not technically be necessary for what are known as monist countries, where no implementing legislation is needed for a ratified treaty to take effect, a full implementation of the Rome Statute apparently requires the promulgation of domestic legislation even in such jurisdictions.

2. Is the ICC the first or only accountability mechanism in Africa for international crimes?

The idea of holding individuals accountable for international crimes such as genocide and crimes against humanity in Africa preceded the ICC.  Indeed there have been a number of instances in which various forms of accountability mechanisms were used to hold perpetrators accountable for these crimes.  For instance, Ethiopia prosecuted in domestic courts over 5,000 individuals who were part of the Derg Regime, the government that ruled the country between 1974 and 1991, for genocide and crimes against humanity, following the fall of the regime.  Over 1,000 of these individuals were apparently convicted.  The International Criminal Tribunal for Rwanda (ICTR), an ad hoc tribunal established by the United Nations Security Council (UNSC) in 1994, prosecuted ninety-three persons for their role in the 1994 Rwandan genocide.  Similarly, the Special Court for Sierra Leone (SCSL), a hybrid court created by the UNSC in 2002 on the request of the Sierra Leone  government, convicted nine individuals for war crimes, crimes against humanity and other offenses, including Charles Taylor, the former president of Liberia.  Significantly, in 2013, the African Union (AU) and Senegal set up a special mechanism, the African Extraordinary Chambers (AEC), within the Senegalese court system to try Hissène Habré, the former president of Chad, for crimes committed between 1982 and 1990; he was convicted in May, 2016, and sentenced to life in prison.

The ICC differs from these mechanisms in a few key ways.  Unlike the ICTR, the AEC, and the SCSL, the ICC is a treaty-based permanent court.  It has been argued that the permanent nature of the ICC, compared to the ICTR and the SCSL serves as a deterrent to would be criminals.  Significantly, unlike the ICTR and SCSL, whose jurisdictions are limited to crimes perpetrated in the context of non-international conflicts, the ICC’s jurisdiction extends to crimes that relate to international conflicts (at p. 14).

3. What is the ICC’s relationship with African countries like and why?

African countries were early, enthusiastic supporters of the ICC.  Many actively participated in the process that led to its creation.  For instance, numerous African civil society organizations joined the Coalition for the International Criminal Court, a non-governmental organization that advocated for the creation of the ICC, and were actively involved in pushing the governments in their respective countries to support the creation of the ICC.

Governments, collectively and individually, did the same.  The Organization of African Unity (OAU) (now the AU) organs have issued  a number of resolutions and declarations supporting the establishment of the ICC and encouraging member states to ratify the Rome Statute.  As noted above, on February 2, 1999, Senegal became the first country in the world to ratify the Statute and African countries joined in large numbers to form the largest regional block of membership in the world, comprising thirty-four of the total 124 States Parties to the Rome Statute.  In addition, the Central African Republic, the Democratic Republic of Congo, and Uganda were the first countries to make referrals to the ICC for investigation and possible prosecution.  Furthermore, Côte d’Ivoire recognized the ICC’s jurisdiction in 2003, a decade before it ratified the Rome Statute.

However, the views of African countries have shifted over time.  The March 4, 2009, issuance of an arrest warrant for Omar Hassan Ahmad Al Bashir, the incumbent president of Sudan, a country that is not a state party to the Rome Statute, is said to have caused the relationship to sour.  Al Bashir’s indictment was based, as stipulated under art. 13(b) of the Rome Statute, on a 2005 UNSC resolution referring the Darfur conflict to the ICC.  The rift grew with the indictment of the former Libyan President, Muammar Gaddafi, also through a UNSC referral, and the Kenyan President, Uhuru Kenyatta, and his deputy, William Ruto.

Although the ICC is often accused of targeting Africa because almost all the cases under investigation or prosecution involve African defendants, many of these cases were referred by African countries themselves, and the controversy is primarily limited to the cases that were based on UNSC referrals and/or those that involved incumbents.

The initial collective response of African countries to the Al Bashir indictment was an attempt to work out a compromise.  Following a July 14, 2008, application by the ICC Prosecutor for an arrest warrant, on July 21, 2008, the AU’s Peace and Security Council (PSC), the standing organ of the AU for the prevention, management and resolution of conflicts, issued a Communique.  In it, the PCS expressed its commitment to ending impunity and cautioned on the dangers of such actions derailing peace and reconciliation efforts.  It also expressed the necessity of conducting international justice “in a transparent and fair manner, in order to avoid any perception of double standard.”  Significantly, the Communique called on the UNSC to defer the matter under art. 16 of the Statute.  In its February 2009 decision, the AU Assembly, the supreme organ that comprises heads of state from all AU member states, endorsed the Communique.

Africa. Source: Library of Congress Geography and Map Division, http://hdl.loc.gov/loc.gmd/g8200.ct003738.
Africa. Source: Library of Congress Geography and Map Division, http://hdl.loc.gov/loc.gmd/g8200.ct003738.

Major issues then arose when the UNSC ignored the AU deferral proposal.  In a meeting, which took place in July 2009, a few months after the ICC issued the arrest warrant against Al Bashir, the Assembly issued a decision calling on its members to stop cooperating with the ICC in which it stated:

in view of the fact that the request by the African Union [to the UNSC to defer the proceedings initiated against President Bashir] has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan…

Since his indictment, President Al Bashir has visited a number of African states that are signatories to the Rome Statute, including Chad, Democratic Republic of Congo, Kenya, South Africa and Uganda, all of which ignored their obligation to enforce the arrest warrant.

In addition, over the years that followed, the AU has made decisions on a number of key issues that either sought cooperation with or confronted the ICC and the UNSC, including:

Significantly, the AU has sought to establish a permanent African accountability mechanism to use instead of the ICC (see question 6, below).

4. Why are Burundi, South Africa, and The Gambia withdrawing from the Rome Statute?

The South African government’s reason for leaving appears to relate to a 2015 Al Bashir visit to the country and the legal complications that arose from the government’s refusal to arrest him.  In June 2015, the High Court, Gauteng Division, Pretoria, ordered his arrest, which the government ignored.  Subsequently, the court found that that was a violation of the government’s duty under the Constitution stating:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.

On appeal, in March 2016, the Supreme Court of Appeal also decided that South Africa had a legal obligation to execute the arrest warrant against Al Bashir.  With the matter awaiting a final decision by the Constitutional Court, the highest court in the country, the South African government decided to pull out of the Rome Statute.  The government maintains that compliance with its obligations under the Rome Statute by arresting Al Bashir would have forced it to violate a customary international law, which recognizes diplomatic immunity for heads of state, and hindered the country’s “continued ability to conduct active diplomatic relations.”

The Gambia’s stated reasons appear to relate to a perception of unfairness with respect to the focus of the ICC Prosecutor.  In the statement announcing its withdrawal, The Gambia expressed its disappointment with the failure of the ICC to investigate and prosecute crimes committed by some Western countries, including for their involvement in the Iraq war and the deaths of migrants trying to reach Europe.

Burundi’s decision to withdraw is based on the ICC’s preliminary investigation, launched in April 2016, relating to pre-election violence in the country.  Burundi argued that this investigation violated the principle of complementarity under the Rome Statute and therefore that it could no longer remain a member.

Although the actions of these countries have been portrayed by some, particularly in the case of Burundi, as actions of government officials looking to shield themselves from prosecution, this does not appear to be a complete explanation.  This is mainly because of the mechanism for withdrawal does not allow for a clean and automatic severing of ties (see question 5 below).

5. What are the mechanisms for withdrawing from the Rome Statute of the ICC?

Withdrawal is primarily governed under art. 127 of the Rome Statute.  A state party that wishes to withdraw from the Rome Statute must first submit a written notification of its intention to do so to the UN Secretary-General.  Unless the country provides a later date in its notification, the withdrawal would take effect a year after the submission of the notification.

In addition, national law dictates if additional action is required.  For instance, in the case of South Africa, which had enacted legislation to implement the Rome Statute, in addition to submitting a written notice of withdrawal, it needs to repeal the national law.  The South African government recently submitted a proposal to Parliament to do just that, and given that the ruling party has a comfortable majority in the body, it is likely that the legislation will be adopted.

Withdrawal from the Rome Statute does not shield a country or its citizens from accountability, at least not immediately.  According to art. 127, withdrawal has no bearing on a country’s obligations to cooperate “with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective…”  It also does not affect the right of the ICC to continue to pursue any matter that was under consideration “prior to the date on which the withdrawal became effective.”  Therefore, in Burundi’s case or with regard to any of the other countries that have initiated the withdrawal process, the ICC can continue its existing investigation or open new investigations within the one year window between when the Secretary-General receives the notice and the day that the withdrawal takes effect.  In addition, as noted above, the withdrawal does not impact the ability of the ICC to investigate or prosecute individuals in countries not party to the Rome Statute through a UNSC referral.

6. What is the alternative to the ICC in Africa?

Africa is in the process of developing a regional accountability mechanism to deal with international crimes.  Although the conception of the idea for having a court to deal with international crimes goes back much farther in time, following the ICC Prosecutor’s decision to seek an arrest warrant against Al Bashir, in a February 2009 decision, the AU Assembly mandated the AU Commission to “examine the implications” of expanding the powers of the African Court on Human and People’s Rights to include jurisdiction over genocide, crimes against humanity, and war crimes.  In its July 2009 decision, at the same time it mandated its member states to stop cooperating with the ICC, the AU called for the fast-tracking of  the implementation of the February 2009 decision.

In June 2014, the AU adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human rights (ACJHR) (Malabo Protocol) (see p. 12).  The Protocol will take effect after fifteen countries ratify it (Malabo Protocol, art. 11); so far, five countries (Benin, Congo Brazzaville, Guinea-Bissau, Kenya and Mauritania) are said to have done so.  Under the Malabo Protocol, the ACJHR will enjoy broad criminal jurisdiction including over crimes such as genocide, crimes against humanity, war crimes, corruption, illegal exploitation of natural resources, unconstitutional change of government and mercenary.  (Malabo Protocol, art. 14.)

Not surprisingly, the Protocol precludes the ACJHR from asserting jurisdiction over heads of state and other government officials while they are in office.  (Id. art. 22.)

Comments (2)

  1. If their is no regional body for that can implement justice and I guess we need an independent body that would mean we still need the ICC. And with the way fugitives are being handled in the African Union, do you think they could be prosecuted truthfully. Omar Al- Bashir being able to travel around without no one arresting or baring his mpvements, yet he is needed in the ICC.

  2. In an open letter sent to His Majesty on Monday, Coalition Convenor William R. Pace stated:

    “We respectfully urge Your Majesty to uphold the long-standing commitment and role of the Hashemite Kingdom of Jordan in ensuring an end to impunity by reconsidering the invitation that was extended to President al-Bashir to attend the Summit. Should President al-Bashir however travel to Jordan this week, we urge you to deny him entry or to arrest him as soon as he enters the territory.

    Pace highlighted Jordan as “a very strong supporter of the fight against impunity in the lead up to and since the establishment of the ICC” and reminded the country that “the success of the ICC depends on the strong support of those who brought it into existence.”

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