A legal-political commentary on the strained relationship between Africaand the International Criminal Court (ICC), and the prospects of the extended African Court of Justice and Human Rights (ACJHR)

Abstract

The establishment of the International Criminal Court (ICC), the world’s first and only permanent court for the investigation and prosecution of genocide, war crimes and crimes against humanity committed after 1 July 2002, has been hailed as the greatest event since the advent of the United Nations (UN). The relationship between some African states and the ICC has however becomefragile and strained. The situation has worsened since the Al-Bashir controversy,(in particular South Africa’s failure to arrest the former Sudanese President on visit in South Africa) to the extent that, in 2016, the South African government announced its intention to withdraw from the ICC. This, in South Africa, was followed by the publication of the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill (B23-2016) (which was later withdrawn) and the International Crimes Bill (B37-2017) (which later lapsed in terms of National Assembly rules). The bills provide important insights into the South African government’s approach to international crimes and criminal justice, revealing an awkward U-turn in terms of immunity granted to heads of state and senior state officials. Against that backdrop, and further with reference to the African scholarship concerning both the strained relationship between Africa, generally and the extended jurisdiction of the ACJHR, this article examines the most cited reasons for this precarious relationship. Some explanations seem more valid than others: African states’ claims that the ICC targets Africans and threatens state sovereignty on the continent simply do not hold water. On the other hand, Africa’s unease with the UN system, particularly the vexed veto system, might carry more weight, suggesting that the continent’s discontent with the ICC is less about the court itself, and more about the UN and Security Council system and composition. The article, in the last part, turns to an evaluation of the prospects of the extended African Court of Justice and Human Rights (ACJHR), which, in terms of the Malabo Protocol, would now have jurisdiction over international crimes also. Sadly, the Malabo Protocol reveals a stubborn insistence on immunity for heads of state and senior state officials, along with an ongoing fixation with state sovereignty. This does not bode well for the credibility and legitimacy of this court should it ever be formally operationalized. The continent’s political leaders should realise that it is incumbent on them to seek justice for the victims of the countless human and humanitarian rights violations committed in Africa. Clinging to outdated notions of immunity and absolute sovereignty does not offer a credible and sustainable alternative to the ICC, but represents a setback to the development of international criminal justice.