By Henry Srebrnik, Fredericton Daily Gleaner
On Sept. 22, Burkina Faso, Mali and Niger announced their withdrawal from the jurisdiction of the International Criminal Court. The three West African states, led by military juntas, said that the ICC had “transformed into an instrument of neocolonial repression in the hands of imperialism” and had become “a global example of selective justice.” They are not the only African countries that feel this way. What has changed?
In 1998, the international community adopted the Rome Statute creating the International Criminal Court, to stablish the first permanent international tribunal to try perpetrators of the crimes. The ICC was given jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression, serving as a neutral arbiter of international law.
The ICC was inaugurated in 2003 shortly after the Rome Statute came into force in 2002. The vision when it was established was that it would be a turning point in the history of global justice, administering justice in a way no external force or power could influence. It was to ensure that no one, regardless of power, geolocation or position, would escape accountability for atrocities.
As a continent marred with mass atrocities, Africa could now contemplate an alternative to the prevailing impunity enjoyed thus far by many warlords. The fresh memories of the Rwandan genocide in 1994 strengthened Africa’s decision to support the idea of an independent and effective international court.
The ICC has been much in the news of late because in November 2024 it issued arrest warrants citing alleged war crimes and crimes against humanity for Israeli Prime Minister Benjamin Netanyahu, Israel’s former defence minister Yoav Gallant, and Hamas commander Mohammed Deif (who has since been killed), for their role in the Gaza war. This led to huge interest in the court. But the ICC has been mainly involved in Africa, where its legitimacy and impartiality remain questionable.
The initial euphoria on what the ICC could achieve was quickly replaced by a lot of criticism. It has experienced increased resistance from African states who criticize that their nationals are the ones mostly convicted by the ICC. Additionally, they argue that politics plays the main role in the decision to investigate and prosecute specific individuals within its jurisdiction.
This critique argues that postcolonial power structures are maintained by the ICC, first, by practising selective prosecution and second, by being a hegemonic tool of the West. The ICC’s location in The Hague, a location in a faraway continent, and its funding from Western countries only deepen the sense that it’s a modern version of a colonial court, where Europeans judge Africans. It can even be invoked by the Security Council, where a majority of the permanent members are not themselves subject to the Court’s jurisdiction, which questions the credibility of the ICC as an independent court of law.
From the start, the ICC’s investigations centred on Africa, which created a visible pattern of focus in prosecutions. It began with a referral in December 2003 from Uganda, targeting Lord’s Resistance Army (LRA) leaders like Joseph Kony for war crimes and crimes against humanity, including child soldier recruitment.
Not long after that, in 2004, the Democratic Republic of Congo (DRC) self-referred, resulting in cases against militia leaders like Thomas Lubanga, who was convicted in 2012 for child soldiers, and Bosco Ntaganda, sentenced to 30 years in 2019 for rape and murder. That same year, the Central African Republic’s referral brought Jean-Pierre Bemba to trial, and he was acquitted in 2018 after a decade in detention.
So far, African leaders like Sudan’s Omar al-Bashir, Kenya’s Uhuru Kenyatta, Libya’s Muammar Gaddafi, Côte d’Ivoire’s Laurent Gbagbo, have faced prosecution.
In 2005, the UN Security Council sent Sudan’s Darfur crisis to the court, charging 51 people implicated in crimes against humanity. President Omar al-Bashir in 2009 was charged with genocide, which was the first time in history a sitting leader faced such charges. Sudan is not a state party to the Rome Statute, however, and he remains in the country.
On Oct. 6, the ICC found a commander of a Sudanese militia, Ali Muhammad Ali Abd-Al-Rahman, guilty of war crimes and crimes against humanity for his role in leading attacks in the western region of Darfur August 2003 to March 2004.
Many African countries have been involved in similar ICC charges, including Kenya in 2010, where charges against Uhuru Kenyatta were dropped in 2015, and Côte d’Ivoire in 2011, when Laurent Gbagbo was convicted in 2021. In addition, there were similar involvements in Mali in 2012, as well as in Burundi in 2017, which later left the court.
Leaders and governments say the ICC treats them unfairly, acting like a neo-colonial power. In 2013, the AU demanded the ICC stop prosecuting Kenya’s Kenyatta and President William Ruto, saying it ignored African ways of resolving disputes and disrespected their sovereignty.
In response, Africa has sought its own solutions. In 2014, the 55-member African Union (AU) proposed a new African Court to handle such crimes, though it’s not yet active. The AU in 2016 even contemplated a mass withdrawal from the ICC by the 33 African states that are parties to the Rome Statute. Burundi did so in 2017 and South Africa and Gambia also considered following suit, but that has not yet materialised.
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