Is it time to “Reset” the Africa-ICC Relationship?

Tuesday, 19 October 2021, 10-12:15 ET, via Zoom

The Center for International Law and Policy in Africa (CILPA), with the co-sponsorship of the American Society of International Law (ASIL) and the International Nuremberg Principles Academy  hosted a roundtable discussion exploring the possibility of “resetting” the Africa-ICC relationship. This event is the third in a four-part 2021 International Criminal Court Colloquium Series.

The Rome Statute of the International Criminal Court (ICC), which entered into force in July 2002, established the world’s only permanent international penal tribunal. The ICC is mandated to step in to assist States Parties when they are unwilling and or unable to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression.

African States were instrumental during negotiations for the establishment of the ICC. On 2 February 1999, Senegal became the first country to ratify the ICC Statue. The ratification instruments of Congo and Niger were among the ten simultaneously deposited to reach the 60th ratification and to thereby bring the ICC treaty into force. In 2003, Uganda became the first country to refer a situation to the ICC for possible investigations and prosecutions. Today, partly because of additional African State self-referrals or the initiative of the UN Security Council and the ICC Prosecutor, most of the ICC’s investigations and situations have been from Africa. Virtually all 30 cases with some having more than one suspect charged by the ICC to date have come from Africa.

The ICC’s focus on Africa has generated backlash from African States. This included a formal decision by African States not to cooperate with the ICC and requests for deferrals of the Kenya and Sudan situations under Article 16 of the ICC Statute. An ICC request to have a liaison office in Addis Ababa, the home of the African Union, failed to secure support while African States moved to establish their own regional criminal court with jurisdiction over core and additional crimes. The grievance against the ICC even led some African leaders to mount a campaign against the ICC. President Yayi of Benin claimed that the ICC “is chasing Africa”, while President Museveni of Uganda condemned the ICC as “a bunch of useless people.” Meanwhile, President Kagame of Rwanda asserted that the ICC’s work was “politics disguised as international justice,” and for his part, President Kenyatta of Kenya, who at one point had been indicted by the ICC, called the ICC “a tool of global power politics and not the justice it was built to dispense.” Against this backdrop, several African States Parties of the ICC, namely Burundi, South Africa and The Gambia, initiated processes to withdraw from the ICC Statute while even more African States called for a “mass” withdrawal. While the Gambia and South Africa did not subsequently withdraw, for a variety of reasons, Burundi which is an ICC situation country ultimately followed through with a national legislature sanctioned withdrawal from the ICC.