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Africa's fractured relationship with the ICC

Isaac Kaledzi in Accra
July 17, 2023

African leaders have complained about wrongful targeting by the International Criminal Court during the 25 years since its founding — but some African legal experts say those claims are unjustified.

 The International Criminal Court (ICC) in The Hague, Netherlands
The International Criminal Court (ICC) marked its 25th anniversary on July 17 amid heightened calls for reviewing its activities in AfricaImage: Peter Dejong/AP/picture alliance

Since its inception 25 years ago, 33 African states have joined the ICC with Ivory Coast the most recent to do so in 2013. They were all expecting justice for victims of crimes.

"I think that generally it has done well in its effort to provide some justice for victims in Africa," Ghanaian legal expert Alhassan Yahaya Seini told DW.

But what started as a good relationship between Africa and the ICC is now fractured. In recent years, some Africa countries have complained about unfair targeting.

While the ICC seems to enjoy strong support among civil society groups in Africa, it's a different story when it comes to some African leaders.

'Against Africans, against African leaders'

Rwandan President Paul Kagame for instance suggested that Africans have become the scapegoat in the ICC's push to execute its mandate.

"The ICC was supposed to address the whole world, but it ended up covering only Africa," Kagame told British-Sudanese telecoms tycoon and philanthropist Mo Ibrahim in 2018. 

"From the time of its inception, I said there was a fraud basis on which it was set up and how it was going to be used," Kagame said. "I told people that this would be a court to try Africans, not people from across the world. And I don't believe I have been proven wrong."

Magdalene Mutheu, a filmmaker from Kenya told DW that she thought Kagame's position was justified.

"The court seems to have been designed to work against Africans and against African leaders," she said. "There are so many leaders in the Western world who have committed crimes against humanity in different countries like Afghanistan, Yemen, Syria and none of them have ever been taken to the International Criminal Court."

Legal scholar Seini though disagrees. 

"I wouldn't say it is targeting Africa as such because it is not like ICC is looking out for African leaders," Seini said "I don't think anyone is saying that."

DRC's Minister of Justice Rose Mutombo Kiese (L) and ICC Prosecutor Karim Asad Ahmad Khan (R) sign a memorandum of understanding
The Democratic Republic of Congo signed a memorandum of understanding with the ICC in 2023Image: Justin Makangara/AA/picture alliance

Weak domestic justice systems

About 30 cases before the ICC involve individuals from the Central African Republic, Ivory Coast, Sudan, Democratic Republic of the Congo, Kenya, Libya, Mali and Uganda.

These countries invited the ICC prosecutor to investigate crimes allegedly committed in their territories.

"It was the states themselves who went to court and not the other way around," Mamadou Diallo, a public international law expert at Cheick Anta Diop University in Dakar, Senegal told DW. 

"From this point of view there is no problem. Because the crimes there have been in Africa, many in Africa and the states concerned have decided to refer the matter to the court, the court exercises its criminal jurisdiction."

Seini agreed with Diallo that African leaders must stop playing victims when it comes to prosecution of cases.

"If Africa did a lot more for itself and its citizens, the ICC would not be required for them. I've heard complaints about victimization of African leaders but quite often it is because the systems in the countries themselves have not provided avenues for the victims of injustice," Seini said.

ICC chief prosecutor Karim Khan
British lawyer Karim Khan was sworn in as the new chief prosecutor at the International Criminal Court in 2021Image: Peter Dejong/AP Photo/picture alliance

Fertile grounds for ICC prosecutions

The ICC investigates whoever engages in conduct that violates the Rome Statute, the court's founding treaty which grants jurisdiction over four main crimes — the crime of genocide, crimes against humanity, war crimes and crime of aggression.

Africa has experienced a lot of wars and conflicts over the past decades with often serious atrocities committed against civilians.

The ICC prosecutor, Karim Khan last week told the UN Security council that there was for instance an ongoing probe into the fighting between the Sudanese Armed Forces and the opposing paramilitary Rapid Support Forces (RSF.) 

Both the paramilitary group and government forces could come within the ICC's sights.

"We have already started investigating….I do want to be clear and send a clear message to every belligerent, every commander, every foot soldier who has a gun or believes that they have power to do what they want that targeting civilians, particularly targeting children and women, are crimes prohibited by the Rome Statute," Khan said.

Africa-ICC ties need reforming

Senegalese Macky Sall last September led an African delegation to hold talks with the ICC president, judge Piotr Hofmanski, to improve relations.

Seini though thinks that what matters most is actually seeking help to strengthen the domestic legal and justice systems in African countries so that victims can find justice there.

"So, what I would rather recommend is that we do what we can to strengthen our systems to make them more justice oriented, more law oriented and not person worship oriented. Basically, that's where we have our problem," he said.

The ICC still faces many challenges, something its chief prosecutor Karim Khan concedes on the 25th anniversary commemoration this year.

"Our willingness to evolve, our focus on improving our work, and our determination to deliver results, will be central to deepening the impact of international criminal justice in the next quarter-century," Khan said in a statement to mark the July 17 anniversary.

Atilla Kisla, International Justice Cluster lead at the Southern Africa Litigation Centre told DW that the ICC shouldn't shy away from improving to win the support of its member countries.

"Did the ICC make mistakes? I'm sure they did. And does the ICC need improvement and reform? Most definitely. And the ICC is currently undergoing a reform process, and one can only encourage state parties like South Africa to actively engage in that reform process," Kisla said.

Edited by: Keith Walker

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