International Institute for Justice and Development

The ICC Unfair in the Eyes of the African Union

Posted on August 08, 2012

By: Jillian Nowlin

Over the past several years, there has been no love lost between the International Criminal Court (ICC) and the African Union (AU), and this past July the AU initiated talks in Addis Ababa on creating an African Criminal Court.  Various African leaders such as Rwandan President, Paul Kagame, and member of the AU Commission, Jean Ping, argue that the ICC’s preoccupation with Africa is biased. In all fairness, the ICC has seven situations and sixteen cases all focused on African countries. Following the indictment of President Omar Al-Bashir of Sudan, the ICC garnered the most criticism from AU leaders.  They argued that the indictment of President Al-Bashir jeopardized the fragile peace negotiations occurring at that time between Sudan and the now sovereign nation of South Sudan. 
However, it is also undeniable that Africa has several serious on-going conflicts that have taken many lives and infringed on the human rights of those still living through the conflict. All of the ICC indictments against African leaders and warlords are based on legitimate criminal activities and human rights abuses. Furthermore, many African citizens support the actions of the ICC.  After the AU’s decision not to comply with the indictment of President Omar Al-Bashir, some African countries and 130 African civil society groups protested in an effort to encourage their governments to rethink the AU’s stance. Thus, several questions remain such as: can an African Criminal Court prosecute crimes against humanity in Africa more fairly than the ICC?  Furthermore, why does the ICC have a laser-like focus on human rights issues mostly in Africa and how can the ICC restore its legitimacy with the AU and African people?
AU leaders would like to expand the duties of the African Court on Human and Peoples’ Rights to include the prosecution of African war criminals. However, this type of expansion would take several years, not to mention lots of resources. Is this a task African leaders are up to completing? Another problem facing an African Criminal Court would be Africa’s legacy of corruption and poor governance. Richard Goldstone of the International Bar Association believes that the ICC would do well to broaden its judicial scope to other parts of the world that also warrant investigation for crimes against humanity such as Georgia, Colombia, Palestine, Iraq, and Afghanistan. Moreover, with the new instatement Fatou Bensouda, who is from Gambia, as the lead ICC prosecutor, the ICC’s focus could change.
Irrefutably, the International Criminal Court has spent the majority of its energy pursuing alleged African criminals, but on the other hand, this pursuance, although very controversial in some cases, has not been without reason and none of those accused have gone without fair trials. There have been many African criminals that needed to be called to justice.  However, some advocates who acknowledge the ICC’s preoccupation with Africa say that instead of taking over Africa’s legal issues, Africa’s national justice systems should be empowered by the international community to try warlords and ousted leaders themselves, only calling on the ICC as a last resort as was the intention for the court to begin with.  This type of support would free the ICC to investigate alleged human rights violations and crimes in other parts of the world, and give African governments the autonomy they deserve over their own justice initiatives. Do you believe the African Union should extend the responsibilities of the African Court on Human and People’s Rights? Or will the court fall victim to the cronyism prevalent in many African governance institutions? And how can the International Criminal Court better itself in the eyes of the African Union and those Africans who think of it as a tarnished and politicized institution?