THE PROBLEM WITH INTERNATIONAL CRIMINAL JUSTICE IN AFRICA : MOVING BEYOND CRITICISMS OF THE ICC – KAAMILLAH SOEKER

Image: Aditya Joshi (Unsplash)

In 2017 the South African government announced plans to withdraw the ratification of the Rome Statute, a treaty which established the International Criminal Court (ICC), on the basis that it contradicts the country’s position on resolving conflict through peaceful resolution and promotion of dialogue. This announcement could have been sparked by the controversial decision of the South African government refusing to arrest former Sudanese President Omar al-Bashir when he arrived for a conference being hosted in South Africa (SA) in 2015. It has been three years and the move to depart from the ICC still remains up in the air with some analysts arguing that being a member of the ICC remains an important factor in the country’s commitment to human rights and international law while others argue that the court is no longer suited to achieve these commitments.

SA is not the only African country to consider leaving the ICC; The Gambia, Burundi, Kenya, Uganda and Namibia have all announced plans to remove themselves from the obligations of the ICC. This narrative is very different to the one which existed in 2002, when the Court was first established, and which saw the international community agree to a set of rules and principles that would strengthen international justice. In more recent years there has been growing criticism by African countries, of the role which the ICC has played on the continent. Many leaders have denounced the court as having an unfair bias when dealing with African countries as the cases have disproportionately involved African individuals. Leaders have also questioned the intentions of the ICC as to whether it exists as a further extension of the colonial authority of western states or if it is based on more idealistic values of human rights and criminal justice. Whatever the considerations are for the continued recognition of the ICC or the alternate rejection of its authority, and no matter the strength of the political bias toward the Africa argument, the pursuit of reconciliation and justice for the African people should always remain a priority for the continent’s leaders. 

The reiteration of the commitment by African states to international humanitarian law, protection of human rights and preservation of human life is enforced by the African Union’s (AU) Peace and Security Council (PSC). This organ of the AU was created as a continental structure to foster and facilitate initiatives which support and promote stability among member nations and within member nations. Adopted around the same time as the ICC was established, the PSC has also come to be seen as a structure which gives African countries more agency in the pursuit of international criminal justice, in addition to reducing the dependency of Africa on western structures to achieve its goals and objectives.  

Given the regional and international frameworks which exist to advance international justice, why then does the continent appear to be failing when it comes to bringing those responsible for gross human rights violations to justice? Considering SA’s response to the case of Omar al-Bashir or even its relations with neighbouring Zimbabwe it would appear that African states simply lack the political will, required to bring those most responsible to justice. That isn’t to say that there aren’t important legal implications or complex relations to consider when deciding to enforce the law but rather that the factors driving these decisions appear to be based on a culture of diplomatic impunity as opposed to democratic freedoms and peaceful dialogue. While African leaders are justified in their criticism of the ICC and the structures which govern it, they cannot ignore the responsibility of upholding human rights and freedoms of the African people. If an individual or individuals commit crimes against African people then there is a duty to bring these persons to justice. Through various regional and local structures Africa has clearly committed to the principles of humanitarian law and international justice and now it remains up to the continent to clearly define how it will enforce these principles and what structures will exist to ensure that no gross violation of African people’s rights goes unpunished.    


Kaamillah Soeker has recently completed a Masters Degree at the Wits School of Governance in Public and Development Management. She is interested in Policy Analysis of South Africa and the African continent.

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