Africa and the ICC: Which way forward?

The International Criminal Court (hereafter the ICC) is the world's first permanent international criminal court. The ICC was established pursuant to the adoption of the Rome Statute on the 17th of July, 2002. Senegal was the first country to ratify the Statute. Prior to coming into force of the ICC, the international community responded to specific conscience shocking situations around the world with the setting up of 'hybrid' courts. The earliest of these tribunals were the Nuremberg and Tokyo Tribunals after the end of the Second World War, to trial Nazi war criminals. These hybrid courts were the precursor to the ICC. They were constrained mainly because of the very limited agenda that informed their existence. More recently, The International Criminal Tribunal for the former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the Special Court for Sierra Leone (SCSL) and the Special Tribunal in Lebanon and Cambodia. These were all attempts by the comity of nations to respond to specific egregious violations of international human rights law, the laws of war ( the 4 Geneva Conventions of 1949 and 1950). These courts were designed to confront state impunity and atrocious acts that shocked the conscience of the international community.

The ICC unlike these ad hoc tribunals is a permanent court. It is headquartered in The Hague. Of the 110 countries that have so far ratified the Rome Treaty, 30 are African State parties. Nigeria ratified the Treaty on the 27/09/01. Nigeria operates a dualist system with respect to the doctrine of incorporation of Treaties, thence, though Nigeria has ratified the Rome Statute, it has not yet become part of Nigeria domestic law. Under the Nigerian constitution, it requires the passage of a local legislation by both Houses of the National Assembly, as well as the assent of the President for the Statute to have municipal force of law within Nigerian courts.

The ICC has no 'universal jurisdiction'. The jurisdiction of the court is either invoked or triggered. The ICC's jurisdiction is invoked where a State Party to the Rome Statute makes a referral to the court. Of the 4 situations presently before the court, 3 arose from such 'self-referrals' by Uganda, Central African Republic (CAR) and the Democratic Republic of the Congo (DRC). The ICC Prosecutor can also trigger a case in exercise of his pro priotu (on his own initiative) powers i.e. by initiating investigation with a view to prosecution. This power has never been exercise by the Prosecutor. The Prosecutor is presently investigating several situations with a view to commencing prosecution if the State Parties in question fail to take steps. This is currently the situation in Kenya. Finally, the jurisdiction of the court can be triggered by the United Nations Security Council in exercise of its Chapter VII powers, referring a situation to the Prosecutor, even if such a country is not a signatory to the Rome Statute. This is the basis of the present situation in the case of Sudan, following the report of the Darfur Commission into crimes of genocide, war crimes and crimes against humanity alleged to have been committed in the Darfur region of Sudan.

The ICC operates on the principle of 'complementarity' or 'subsidiarity'. This means that recourse to the ICC is secondary and that States are primarily encouraged to put in place national judicial systems for dealing with persons who are alleged to have committed or 'bear the greatest responsibility' for the commission of war crimes, crimes against humanity and genocide. The ICC in a sense, should be a court of last resort where national authorities are 'unable or unwilling' to prosecute those who commit such heinous crimes.

The ICC is at a crossroads. The Rome Statute falls for review in 2010. Kampala the capital of Uganda will host the review conference in May. It will be a defining moment for the court. The agenda of the review conference amongst others will attempt to resurrect the definition of the crimes of aggression. This was deferred at the negotiation of the Rome Statute as States could not reach a consensus as to what constitutes crimes of aggression. The review conference will also review the powers of the Prosecutor to initiate prosecution. For Africa, the review conference it appears is set to pitch African States and non State parties to the Rome Statute as to the future of the court vis-à-vis what is being considered in some quarters, as the court unduly 'picking on' African countries. Prof. Mahmood Mamdani is a leading advocate of this school of thought. Prof. Jalloh on the other hand, although acknowledges the primacy and desirability of the ICC for Africa, is somewhat cautious and advises that Africa’s' relationship with the court must develop taking into consideration the peculiar nature of the African situation. He opines that if this delicate balance is played out, the ICC could be a 'win win' situation for Africa, given the internecine wars and conflicts, gross abuse of human rights and poor governance presently in Africa.

The ICC's recent warrant for the arrest of President Omar Al-Bashir of Sudan also provides the context and background for the forthcoming review conference. Al-Bashir is now an international pariah. To date, he has not succeeded in visiting any of the State Parties to the Rome Statute. Only recently, there was the real threat that he would come to Nigeria for the AU Peace and Security Council (PSC) meeting, where the Mbeki report was to be discussed. The combination of unfavourable public opinion and the concerted efforts by civil society organizations, prevented this from happening. The Nigerian Coalition on the international Criminal court (NCICC) launched a major advocacy blitz both in the print and electronic media to forestall the said visit. Thankfully, the Federal government of Nigeria harkened to wise counsel and this did not happen.

The Al Bashir arrest warrant has split African countries down the middle. At the recent African Union Preparatory meeting on the 3rd to 6th of November, 2009 - in advance of the review conference - the AU attempted to juxtapose the question of justice with those of peace and security. In the result, it is unclear whether African countries will be speaking with one voice or discordant voices. It would be interesting to see how these issues pan out. What implications it would have for Africa. The implications for the ICC given that African State parties constitute the largest continental bloc that have ratified the Rome Statute. On a broader level, it will bring to the fore the question of addressing state impunity, conflicts and wars, and the larger questions of the violations of human rights and implications for good and democratic governance in Africa.

Daniel Ehighalua
Senior Programme Officer CDD
Secretary NCICC