Unpacking the Tension Between the African Union and the International Criminal Court: the Way Forward
| Date | 01 February 2015 |
| Author | Ovo Imoedemhe |
| DOI | 10.3366/ajicl.2015.0111 |
| Pages | 74-105 |
| Published date | 01 February 2015 |
It has been asserted that the international criminal justice regime anchored on the complementarity of the international criminal court (ICC) could be undermined by distrust, much of which stems from Africa's historical experience with the slave trade and colonialism.
Charles Chernor Jalloh, ‘Regionalizing International Criminal Law?’, 9
Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, in force on 1 July 2002 UNTS, vol. 2187, no. 38544, http://treaties.un.org> (hereinafter ‘Rome Statute’).
Edwin Bikundo, ‘The International Criminal Court and Africa: Exemplary Justice’, 23(1)
Relations between the ICC and the African Union (AU) deteriorated from cooperation to conflict following the indictment of President Omar Hassan Ahmad Al-Bashir of Sudan for crimes against humanity and genocide. The basis for the tension seems to have been the involvement of the United Nations Security Council (hereafter ‘Security Council’) in the referral of the situation in Darfur, Sudan to the ICC and its subsequent refusal to defer the case, as requested by the AU. Nevertheless, the relationship is still salvageable and could be enhanced for the mutual benefit of both institutions with a view to achieving the goal of peace and security.
In addition to the introduction and a conclusion, this paper is divided into four sections. The first section discusses the politics behind international criminal law. It analyses the characteristics of selectivity and the ‘scapegoat’ thesis and argues that, although selectivity features in every criminal justice system, the assertion that the ICC targets African states may not be supported by the facts – particularly because four out of the eight situation countries currently before the ICC were referred by the respective African states' governments themselves.
The relationship between the ICC and the AU is analysed in the second section. In order to capture the essence of this relationship, the section includes a discussion of Africa's modern perspective on conflict and the desire among nations of the continent to achieve peace, security and stability. It is argued that relations between the ICC and the AU had hitherto been cordial and that the current conflict arose from the referral of the situation in Darfur. Consequently, the analysis in this section demonstrates that there might be good reasons why some African leaders perceive the ICC as ‘neo-imperialism masquerading as international rule of law’.
Chernor Jalloh, The Law and Politics of the Charles Taylor Case
However, to counter this perception, it is proposed that the conflict is not between the AU and the ICC per se but rather, it is between the AU and the Security Council. It is further suggested that if there is genuineness, both the ICC and the AU would benefit from the investigations and prosecutions being carried out by the ICC in Africa.
Based on the assertion that the present tension between the AU and the ICC is misplaced, the third section discusses the need to illuminate the tension between the two institutions by characterising relations between them more accurately. To that end, some points of misunderstanding between the AU and the ICC, conceptualised into legal and political perspectives, are identified as further sources of tension.
The legal misconstructions stem from the inaccurate interpretation and application of complementarity and other concepts, including the ICC's jurisdiction over nationals of non-party states and the irrelevancy of immunities under the Rome Statute. The political perspective includes the uneven playing field, Western complicity in Africa's conflicts and the United States' exceptionality. Unpacking the AU/ICC tension could result in better cooperation between African states and the ICC, which would ensure legitimacy in the ICC's first cases. For the AU, the benefit would be the realisation of its goal of fostering peace, security and stability on the continent.
It is acknowledged that international criminal law is not always applied equally, but argued nevertheless, that the perception that the ICC has an inappropriate fixation on Africa, to the exclusion of crimes committed elsewhere, amounts to assuming bias where in fact more benign explanations are likely. In support of this, the incidences of self-referrals, particularly of the most recent by another African state, Mali, in January 2012, together with other points, are considered in the fourth section.
The Office of the Prosecutor (OTP) has received information regarding alleged atrocities in various situations all over the world.
The OTP has received information on alleged atrocities in Iraq, Venezuela, Palestine, Colombia, Honduras and Afghanistan, but it has decided not to open investigations into those situations or has kept them under preliminary examination. See ‘Africa Debate – Is the ICC Targeting Africa Inappropriately?’, available at http://iccforum.com/africa> (accessed 4 November 2013).
Although the crisis in Syria and offences committed by nationals of the United States in Iraq and elsewhere may have met the gravity threshold, the Prosecutor is unlikely to invoke hisSee
Nsongurua Udombana, ‘Africa and the International Criminal Court’, paper presented at the Thirteenth Justice Chukwunweike Idigbe Memorial Lecture, University of Benin, Nigeria, 5 December 2012.
The former Chief Prosecutor of the ICC Luis Moreno-Ocampo once declared: ‘I apply the law without political considerations. But the other actors have to adjust to the law’.
Luis Moreno-Ocampo, former Chief Prosecutor of the ICC, Keynote Address on the International Criminal Court to the Council on Foreign Relations Washington, DC 4 February 2010; see also Keynote Address at the Salzburg Law School on ‘International Humanitarian Law, International Human Rights Law and International Criminal Law’, Salzburg, Austria August 2008.
This statement implies that the ICC is an independent judicial institution, which must stay clear of politics. As a consequence, politics is portrayed as external to law, and as something that must be overcome by independent organs acting on the basis of rules.Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ 21(4)
Similarly, when asked whether he was ‘becoming a politician at the ICC’? Moreno-Ocampo answered, ‘on the contrary, I am putting a legal limit to the politicians. That is my job. I police the border-line and say, if you cross this you're no longer on the political side, you are on the criminal side. I am the border control’.
Patrick Smith, Interview: Luis Moreno-Ocampo, ICC Prosecutor
Three features of the ICC make it particularly susceptible to political considerations. The first is that, in contrast to its predecessors, post-World War II tribunals and the ad hoc tribunals, the ICC, with jurisdiction over on-going armed conflicts, operates in the midst of conflict. Thus, while the Nuremberg, Tokyo, former Yugoslavia and Rwanda Tribunals dealt only with defeated antagonists in aftermath situations, the ICC can be used as an instrument for defeating enemies.
James Crawford,
The second is that one of the trigger mechanisms of the ICC's jurisdiction is referral by the Security Council. The latter is a political body, yet it is empowered to refer situations to a judicial institution...
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