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The International Criminal Court's ‘African Bias’: If justice is not given

everywhere, is it justice at all?

Working Paper · January 2017

DOI: 10.13140/RG.2.2.18789.29921

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 Student No. | 116224178

Noemi Magugliani

Module Code | LW6650

Module Title | International Criminal Law

Professor Siobhán Mullally and Sean Butler

Question 3:

“The ICC promised us the rule of law. The test of the rule of law is that it should apply to

everybody, particularly the most powerful. When the rule of law does not apply to the most

powerful, then it is not the rule of law – it is warlordism, the rule of the powerful. […] The problem

that we have today is that we don’t have a global political system which holds the most powerful

players to account. […] If you put the cart before the horse, then the court is going to be a

kangaroo court.” – Mahmood Mamdani

Critically evaluate and analyse this statement with particular reference to the

International Criminal Court’s perceived ‘African bias’.

Word Count (excluding front page, footnotes and bibliography) | 4.968

 THE INTERNATIONAL CRIMINAL COURT’S ‘AFRICAN BIAS’:

IF JUSTICE IS NOT GIVEN EVERYWHERE, IS IT JUSTICE AT ALL?

The history of the International Criminal Court (ICC or ‘the Court’) is undeniably and deeply

associated with the African continent and its member States because of the role of the latter in the

conception, establishment and subsequent development of the Court. The role of Africa in the creation

of the ICC was so crucial that in 2009, Sang-Hyun Song, then President of the Court, praised Africa’s

“very important role prior to and during the establishment of the Court [whose Statute] perhaps,

without [its] support, […] would never have been adopted”. 1 In the ratification process, Africa again

played a key function: the first State to ratify the Statute was in fact Senegal, on 2 February 1999,

and when the sixtieth instrument of ratification was deposited in 2002 by the Democratic Republic

of the Congo, fourteen African States had already ratified. 2 The centrality of Africa became even

clearer in 2003, when Prosecutor Moreno-Ocampo decided that Ituri, Democratic Republic of the

Congo, was going to be the first situation before the Court – and later became the first case leading

to a verdict.3 Since then, the ICC has opened investigations in ten circumstances, nine of which

involve African States: two in the Central African Republic, Côte d'Ivoire, Darfur (Sudan), the

Democratic Republic of the Congo, Kenya, Libya, Mali and Uganda. Four of these situations were

self-referred by State parties, once again highlighting the involvement and the engagement of the

African continent in the activities of the ICC.

1
M. Ssenyonko, ‘The Rise of the African Union Opposition to the International Criminal Court’s Investigations and
Prosecutions of African Leaders’ (2013), 2 International Criminal Law Review 385-418
2
In order of ratification: Senegal, Ghana, Mali, Lesotho, Botswana, Sierra Leone, Gabon, South Africa, Nigeria, Central
African Republic, Benin, Mauritius, Democratic Republic of Congo and Niger.
3
ICC, ‘Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo’, No. ICC-
01/04-01/06 (14 March 2012)

1
 Nevertheless, this focus on the African continent has attracted harsh criticism, particularly

from a number of African Heads of State, the African Union (AU) and experts which led to massive

objections and a wide range of accusations to the ICC, as well as to the coinage of the concept of a

Court’s ‘African bias’. Some of the strongest arguments in support of such thesis are that the Court

is an expression of neo-colonialism and that it is prejudiced against Africa since it has only been

investigating cases in the continent while the most powerful States, with particular reference to,

among others, China, Israel, Russia, the United States and the United Kingdom, have not been held

accountable for alleged violations of the Rome Statute.4 Such perception had been increasing since

2006, when the Office of the Prosecutor (OTP) released an official response on the communications

received concerning Iraq, one of the few situations in which the United Kingdom, a European and

not an African State, was involved, affirming that despite “it was concluded that there was a

reasonable basis to believe that crimes within the jurisdiction of the Court had been committed,

namely wilful killing and inhuman treatment”, “the Statute requirements to seek authorisation to

initiate an investigation […] have not been satisfied”.5 Notwithstanding the legality of the test that

was applied by the Court, based in particular on the principles of gravity and complementarity, the

claim that the ICC was only prosecuting African leaders was difficult to dismiss and it was reinforced

by the lack of progress in other cases such as Iraq and Afghanistan, in which some of the most

powerful States were involved. In the words of Mahmood Mamdani, “the ICC promised us the rule

of law [but when] the rule of law does not apply to the most powerful, then it is not the rule of law –

it is warlordism, the rule of the powerful”.6 The widespread criticism has been echoed within the AU

and eventually led three States, namely Burundi, the Gambia and South Africa, to notify to the United

Nations their decision to withdraw from the ICC.

4
While the United Kingdom is indeed a State party, Israel, Russia and the United States have signed but not ratified the
Statute while China is a non-party, non-signatory State.
5ICC, ‘OTP Response to communications received concerning Iraq’ (9 February 2006)
6
Al Jazeera, ‘UpFront – Arena: Is the ICC biased against African countries?’, available at https://www.youtube.com/
watch?v=1XHyJYOYZDk [Accessed December 14, 2016]

2
 In the light of recent events, particularly the above mentioned withdrawals together with

Russia’s declaration on removing its signature from the Rome Statute, whose analysis however will

not be included, this paper aims at analysing the main criticisms addressed to the Court and at

answering the delicate question about whether the alleged ‘African bias’ of the Court is preventing it

from providing the rule of law that it promised. The first section will briefly examine the history of

the relationship between the ICC and Africa, concentrating on key moments and on the arguments

supporting the idea of a bias against Africa expressed by African political leaders and experts. The

second section will address the defence of and by the Court, focusing on three key points, namely

contingency, law and politics. The last section is intended to respond to Mamdani’s statement drawing

on the previous analysis. Despite the objective and due recognition of the existence of a strong African

focus in the activities of the ICC, it is argued that it is inappropriate to suggest that only because

justice is not given everywhere, then there is no justice at all and that it is the Court which is

deliberately exercising its prosecutorial powers against Africa, failing to provide the rule of law that

it promised. The ICC is sophisticated but not flawless and it indeed operates within an imbalanced

political system: criticisms of course need to be voiced and must be seriously taken into account and

evaluated, nevertheless the rule of law as Mamdani describes it, and in the interest of mankind, can

only possibly come to existence by strengthening the Court for the better, and not by demolishing it

– especially when there is no viable alternative to the current system or when such alternatives provide

a lower standard of protection for the victims, which ultimately are the real holders of the right to

justice.

3
1. The reasons behind the fall of Africa’s support to the ICC: discriminatory investigations,

immunity and the role of the United Nations Security Council

As it has already been highlighted, the early participation of African States in the creation of the ICC

was enthusiastic and dynamic. The decision adopted in 1998 by the Organisation of African Unity’s

(OAU) Council of Ministers 7, urging all Member States to participate and engage in the Rome

Process, was one of the first signs of Africa’s deep confidence in the Court. The establishment of the

ICC was seen as a potentially unique opportunity that would have been fundamental in the global

quest for justice and in the fight against impunity. The same year, at the Diplomatic Conference on

Plenipotentiaries on the Establishment of an International Criminal Court in Rome, the role of African

States within the ‘like-minded’ caucus, a geographically heterogeneous group which included more

than sixty participating States 8, was indeed extremely meaningful. Not all the principles supported

by the caucus were included in the final draft statute – which was eventually adopted with 120 votes

in favour, 21 abstentions and 7 votes against, Libya being the only African State in such group – but

their significance and Africa’s role in their formulation remains crucial. The expectations of Africa’s

participation after the productive dialogue in and before the Rome Conference were extremely high,

hoping that the quantitative and qualitative support would continue to grow simultaneously.

The first investigations opened by the ICC originated from self-referrals of the governments

of the Democratic Republic of the Congo, Uganda and the Central African Republic, actions that

were perceived as a continuum with respect to the African engagement in the Rome process. Despite

a certain political criticism, those investigations did not meet any resistance from African States’

leaders nor from the AU. The same can be affirmed about other proceedings that followed the self-

7
OAU 67th Ordinary Session of the Council of Ministers, CM/Dec.399 (LXVII) (25-28 February 1998)
8
Andorra, Argentina, Australia, Austria, Belgium, Benin, Bosnia-Herzegovina, Brunei, Bulgaria, Burkina Faso, Burundi,
Canada, Chile, Congo Brazzaville, Costa Rica, Croatia, Czech Republic, Denmark, Egypt, Estonia, Finland, Gabon,
Georgia, Germany, Ghana, Greece, Hungary, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Lithuania,
Luxembourg, Malawi, Malta, Namibia, the Netherlands, New Zealand, Norway, the Philippines, Poland, Portugal,
Republic of Korea, Romania, Samoa, Senegal, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South
Africa, Spain, Swaziland, Sweden, Switzerland, Trinidad and Tobago, United Kingdom, Venezuela and Zambia.

4
referral process, namely Mali in 2012 and the Central African Republic both in 2004 and in 2014.

The opposition of some governments and, more broadly, of the AU emerged with respect to a selected

number of cases that will be briefly discussed in this section – Sudan, Libya and Kenya, where the

ICC operated on the basis of either United Nations Security Council’s (UNSC) referrals or proprio

motu powers.

The cases of Sudan and Libya: rule of the powerful and the ‘peace versus justice’ dilemma

In March 2005, the UNSC referred to the ICC the situation in Darfur, Sudan9, and the Prosecutor

decided to open the investigations, for the first time operating out of the self-referral scheme. Despite

the decision was not immediately followed by an AU response, the political climate in Africa around

the ICC and international justice mechanisms was about to change. African leaders were concerned

about the growing perception that the broad legal principle of universal jurisdiction was being applied

in a discriminatory manner and “in clear violation of [a State’s] sovereignty and territorial

integrity”.10 Some African Heads of State began to express the view that the UNSC was using the

Court to prosecute them, overlooking international crimes that were perpetrated elsewhere. The

concepts of inequality, unbalance, politicisation, bias and neo-colonialism were starting to permeate

the debate. The credibility of such claims was, at least superficially, heavily supported by the record

of cases before the ICC, which appeared to be focusing on the sole African continent. In such a tense

political climate, the ICC Prosecutor requested the ICC Pre-Trial Chamber to issue an arrest warrant

against Sudan’s sitting Head of State, Omar Hassan Ahmad Al Bashir.11 When, according to Article

16 of the Rome Statute, the AU Peace and Security Council (PSC) requested the UNSC to defer the

proceedings against Bashir in order to “ensure that the ongoing peace efforts are not jeopardized” 12,

the UNSC took note of the request but did not act on it. As the warrants for the arrest of Bashir on

9
UNSC Res. 1593 (2005), UN Doc S/RES/1593 (2005)
10
AU Assembly, ‘Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction’,
Assembly/AU/Dec.199(XI)
11
ICC, ‘ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al Bashir, for Genocide, Crimes
Against Humanity and War Crimes in Darfur” (14 July 2008)
12
AU Peace and Security Council, 142nd meeting, Communique, PSC/MIN/Comm(CXLII) (21 July 2008)

5
the grounds of alleged war crimes and crimes against humanity in 2009 and of alleged genocide in

2010 were issued13, the relationship between the Court and the AU began to deteriorate. The case of

Bashir is significant, being the first case in which an arrest warrant targeted a sitting President of a

State which was not party to the Rome Statute. This situation that led the AU to adopt a number of

decisions 14 calling on all its member States not to cooperate with the ICC on the basis of an

interpretation of Article 98(1) of the Rome Statute that intended to safeguard the immunity of officials

of States that are not parties to the Statute. When some States parties, among which Djibouti, Chad,

Kenya and Malawi, did not surrender Bashir to the ICC despite his presence on their territory, the

Pre-Trial Chamber I clarified that, by virtue of Article 119(1) of the Statute, it was the Court who

possessed the “sole authority […] to decide whether immunities are applicable in a particular case”

and found, in accordance with Article 86, 87(7) and 89, that the above mentioned States – Malawi in

the particular case – had “(ii) failed to cooperate […], preventing the Court from exercising its

functions and powers under the Statute”. 15 The AU reiterated its position and expressed its

disappointment in the light of the apparent loss of meaning of both customary law and Article 98(1).16

13
ICC, Pre-Trial Chamber I, ‘Warrant of Arrest of Omar Hassan Ahmad Al Bashir’, No. ICC-02/05-01/09 (4 March
2009) and ICC, Pre-Trial Chamber II, ‘Second Decision on the Prosecution’s Application for a Warrant of Arrest’, No.
ICC-02/05-01/09 (12 July 2010)
14
See, among others, the following AU Assembly documents: ‘Decision on the Meeting of African States Parties to the
Rome Statute of the International Criminal Court (ICC)’, Assembly/AU/Dec.245(XIII) (3 July 2009); ‘Decision on the
Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second
Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC)’, Assembly/AU/Dec.296(XV) (27
July 2010); ‘Decision on the Implementation of the Decisions on the International Criminal Court (ICC)’,
EX.CL/639(XVIII), Assembly/AU/Dec.334(XVI) (30-31 January 2011); ‘Decision on the Implementation of the
Assembly Decisions on the International Criminal Court (ICC)’, EX.CL/670(XIX), Assembly/AU/ Dec.366(XVII) (30
June-1 July 2011).
15
ICC, Pre-Trial Chamber I, ‘Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of
Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar
Hassan Ahmad Al Bashir’, ICC-02/05-01/09 (12 December 2011)
16
See AU (Commission), Press Release No. 002/2012 (9 January 2012); AU Assembly, ‘Decision on the Progress Report
of the Commission on the Implementation of the Assembly Decision on the International Criminal Court (ICC)’,
EX.CL/710(XX), Assembly/AU/Dec.397(XVIII) (29-30 January 2012). A similar position was voiced by South Africa
in 2015, see ICC, Pre-Trial Chamber II, ‘Decision following the Prosecutor’s request for an order further clarifying that
the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir’, ICC-02/05-
01/09-242 (13 June 2015)

6
 In the meantime, a similar case emerged with respect to the case of Libya. In February 2011,

the UNSC referred the situation to the ICC, whose Pre-Trial Chamber I issued warrants of arrest for

Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for

alleged crimes against humanity.17 The response of the AU in the Gaddafi case was not substantially

different from the one in the Bashir case, with the AU Assembly requesting the UNSC to defer the

process and calling once again upon all Member States “not to cooperate in the execution of the arrest

warrant” which “seriously complicates the efforts aimed at finding a negotiated political solution to

the crisis”.18

The case of Kenya: discrimination and the sovereignty issue

In the midst of the tensions, the Pre-Trial Chamber II approved the Prosecutor’s request to

open an investigation proprio motu in Kenya, according to Article 15 of the Rome Statute, for alleged

crimes against humanity committed in the context of post-election violence in 2007 and 2008. 19 Two

of the suspects identified in 2012, Uhuru Kenyatta and William Ruto, were prospective candidates in

the forthcoming presidential elections. Kenya, endorsed by the AU Assembly, requested the UNSC

to defer the investigations. In the light of the inaction of the UNSC and of the advancement of the

ICC activities, tensions escalated again. Kenyatta and Ruto were summoned to appear in March 2011

and the charges against them were confirmed in January 2012. As Kenyatta was elected in 2013, the

campaign of the AU against the trials became indeed heavier than it had been in the Bashir case. The

Prime Minister of Ethiopia and then Chairman of the AU, Hailemariam Desalegn, affirmed that the

fight against impunity of the ICC “has degenerated into some kind of race-hunting”.20 Not long after

this statement, the AU Assembly, concerned about “the politicization and misuse of indictments

17
ICC, Pre-Trial Chamber I, ‘Decision on the Prosecutor’s Application pursuant to Article 58 as to Muammar Mohammed
Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11 (27 June 2011)
18
AU Assembly, ‘Decision on the Implementation of the Assembly Decision on the International Criminal Court’,
Assembly/AU/Dec.366(XVII) (30 June-1 July 2011)
19
ICC, Pre-Trial Chamber II, ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an
Investigation into the Situation in the Republic of Kenya’, ICC-01/09 (31 March 2010)
20
R. Lough and A. Maasho, ‘Ethiopian leader accuses international court of racial bias’ (27 May 2013), available at
http://www.reuters.com/article/us-africa-icc-idUSBRE94Q0F620130527 [Accessed December 15, 2016]

7
against African leaders by ICC” and about the fact that it was “the first time that a sitting Head of

State and his deputy [were] being tried in an international court”, affirmed that “the trials of President

Uhuru Kenyatta and Deputy President William Samoei Ruto should be suspended until they complete

their terms of office” and that “African States Parties propose relevant amendments to the [Rome]

Statute”.21 The main reasoning behind such request was deeply related to concerns about peace and

sovereignty that could have been undermined had the proceedings not be interrupted. 22 According to

the AU, the ICC’s focus on justice did not take into serious account the impact on stability and

reconciliation, lacking sensitivity and flexibility with respect to the African context, and therefore the

decision “to fast track the process of expanding the mandate of the African Court on Human and

Peoples’ Rights to try international crimes”23 was taken. The attempt to create a strong African

coalition against the Court was not limited to those countries that were not parties to the Rome Statute

but to the AU as a whole. However, the ambition to unite Africa in challenging the ICC did not meet

the AU’s expectations of a cohesive alliance.

The African division

Despite the fact that some African countries begun to be heavily critical of the ICC only a few years

into the Court’s activities, shifting from a paradigm of cooperation to one of non-compliance, Africa

is not monolithic and, as Kurt Mills noted, the strategy of the AU towards the ICC contributed to

create profound divisions among African states. 24 Many States indeed found themselves caught

between their voluntarily accepted binding obligations under the Rome Statute and the request for

political solidarity within a fragile context. While leaders of a number of countries, among which

21
AU Assembly, Extraordinary Session, ‘Decision on Africa’s Relationship with the International Criminal Court (ICC)’,
Ext/Assembly/AU/Dec.1 (October 2013)
22
While the trial against Ruto indeed started in September 2013, the one against Kenyatta never opened. Charges against
Kenyatta were withdrawn in March 2015 and the case of Ruto (and Sang) terminated in April 2016 with Trial Chamber
V(a) deciding to vacate the charges.
23
AU Assembly, Ext/Assembly/AU/Dec.1 (October 2013)
24
K. Mills, ‘Bashir is Dividing Us: Africa and the International Criminal Court’ (2012), Human Rights Quarterly 34(2)
404-447

8
Burundi, Gambia25, Kenya, South Africa and Zimbabwe, loudly voiced their opposition to the ICC

and supported the AU’s view, another alliance silently emerged within the Union. When, during the

Ministers of Justice’s meeting in Addis Ababa in 2009, the hypothesis of withdrawal was brought on

the table26, such proposal fell under a section entitled ‘proposals made on which there was no

consensus’. The proposition has echoed in the AU for years, until in early 2016 an Open-Ended

Committee of African Ministers on the ICC drafted a ‘comprehensive strategy’ which articulated

three requests to be fulfilled by the ICC in order to prevent the AU from encouraging mass

withdrawal: “immunity for sitting Heads of States and Governments as well as for senior government

officials; intervention of ICC on African cases only after submission of the cases by the AU and or

by AU Judicial institutions; and the reduction of the powers of the Prosecutor”.27 In addition, the

willingness to operationalise the African Court of Justice and Human and Peoples’ Rights to provide

Africa with ownership of the justice system, as well as with an African solution to the perceived

Court’s bias, was reaffirmed and strengthened. Nonetheless, the 2016 27th AU summit held in

Rwanda closed with several ICC States Parties – Botswana, Burkina Faso, Cape Verde, Côte d’Ivoire,

the Democratic Republic of Congo, Nigeria, Senegal, and Tunisia – openly opposing the AU exit

strategy and providing a new boost to the Court.28 After the withdrawals of Burundi 29, South Africa30

25
Even if the newly elected President Barrow affirmed his willingness to keep the country a member of the ICC. See
Africa Group for Justice and Accountability (AGJA), ‘Africa Group Statement on the Gambia’s Pledge to Remain in the
International Criminal Court‘ (Wayamo, 8 December 2016), available at http://www.wayamo.com/
archives/gambiastatementdec2016/ [Accessed January 4, 2017]
26
AU, ‘Report of the Meeting African States Parties to the Rome Statute on the ICC’, AU/MinICC/Report (8-9 June
2009)
27
AU Open-Ended Committee, ‘Summary Report of the African Union Open-Ended Ministerial Committee of Ministers
of Foreign Affairs on ICC’ (11 April 2016), available at https://www.hrw.org/sites/default/files/supporting_resources/
summary_report_of_the_african_union_open_ended_ministerial_committee_of_ministers_of_foreign_affairs_on_icc.p
df [Accessed January 5, 2017]
28
See Human Rights Watch, ‘Burundi: ICC Withdrawal Major Loss to Victims’ (27 October 2016), available at
https://www.hrw.org/news/2016/10/27/burundi-icc-withdrawal-major-loss-victims [Accessed January 4, 2017]; E
Keppler, ‘Dispatches: Governments Defend ICC at African Union Summit’ (20 July 2016), available at https://www.hrw.
org/news/2016/07/20/dispatches-governments-defend-icc-african-union-summit [Accessed December 28, 2016]
29
Loi No 1/14 du 18 Octobre 2016 portant retrait de la République du Burundi du Statut de Rome de la Cour Pénale
Internationale, adopte à Rome le 17 Juillet 1998
30
‘Instrument of withdrawal’, letter dated 19th October 2016, signed in Pretoria by Maite Nkoana-Mashabane, South
Africa’s Minister of International Relations and Cooperation

9
and Gambia31, the Government of Botswana has been one of the strongest advocates in opposing such

policy, stating that it “does not associate itself with calls for States Parties to withdraw from the Rome

Statute” and that it “believes that such a move betrays the rights of the victims of atrocious crimes to

justice and also undermines the progress made to date in the global efforts to fight impunity”.32 For

an additional State, Kenya33, that is considering quitting the Court, there is one, Gabon34, that on 20

September 2016 demonstrated its confidence in the ICC by self-referring to the OTP. The situation

in Gambia is even more complicated in a tense political environment following the 2016 presidential

elections in which Yahya Jammeh, ruler of the country since 1994, was defeated by Adama Barrow

but, after having accepted defeat in early December, refused to step down and give up power

peacefully. Mr Jammeh announced Gambia’s withdrawal in October 2016, however the President-

elect Barrow has praised the Court and affirmed that he will not follow the predecessor’s strategy. 35

In the attempt to offer an alternative assessment of the activities and the role of the ICC within Africa,

Human Rights Watch has collected a number of testimonies by activists challenging the attacks on

the Court and, despite recognising the flaws of the system, reaffirming their trust in the institution

from both a political and a legal perspective.36

31
See Al Jazeera, ‘Gambia withdraws from International Criminal Court’ (Aljazeera, 25 October 2016), available at
http://aje.io/w66y [Accessed January 4, 2017]; J. Bavier, ‘Gambia announces withdrawal from International Criminal
Court’ (Reuters, 26 October 2016), available at http://reut.rs/2dUcebM [Accessed January 4, 2017]
32
See Botswana Government, ‘Statement on the withdrawal of South Africa From the Rome Statute of the International
Criminal Court (ICC)’ (25 October 2016), available at bit.ly/2dFlbSV [Accessed January 4, 2017]; This is Africa,
‘Botswana reiterates support for the ICC while saying it regrets South Africa’s decision to leave the Court’ (25 October
2016), available at http://thisisafrica.me/botswana-reiterates-support-icc-saying-regrets-south-africas-decision-leave-
court/ [Accessed January 4, 2017]
33
See ‘Kenya giving serious thought to quitting ICC’ (Guardian.ng, 12 December 2016), available at
http://guardian.ng/news/kenya-giving-serious-thought-to-quitting-icc/ [Accessed December 24, 2016]
34
See République Gabonaise, ‘Requête aux fins de renvoi d'une situation par un Etat Partie auprès du Procureur de la
Cour Pénale Internationale’ (20 September 2016); ICC Office of the Prosecutor, ‘Statement of the Prosecutor of the
International Criminal Court, Fatou Bensouda, concerning referral from the Gabonese Republic’ (29 September 2016),
available at https://www.icc-cpi.int/Pages/item.aspx?name=160929-otp-stat-gabon [Accessed January 4, 2017]
35
AGJA, ‘Africa Group Statement on the Gambia’s Pledge to Remain in the International Criminal Court‘ (8 December
2016), available at http://www.wayamo.com/archives/ gambiastatementdec2016/ [Accessed January 4, 2017]
36
Human Rights Watch, ‘AU: Activists Challenge Attacks on ICC’ (6 July 2016), available at https://www.hrw.org/
news/2016/07/06/au-activists-challenge-attacks-icc [Accessed January 6, 2017]

10
2. The Court’s defence from the accusations of an ‘African bias’: contingency, law and politics

In responding to the accusations of the existence of an ‘African bias’, the Court has been

mainly responding with a number of apolitical and technical arguments. In line with such defensive

strategy, in a recent interview former Prosecutor Moreno-Ocampo responded to Mamdani’s

allegations by presenting a neutral picture of the activities of the ICC. 37 Far from being political

statements, most of the arguments put forth to reject the idea of a biased Court have been supported

by a seemingly impartial analysis of the available data. In particular, it is argued that the prosecutions’

African focus is a matter of law and of historical contingency rather than a political issue, and that it

is the African leaders and not the ICC who have been unfairly politicising the role of the Court.

Contingency and the law

The Court is perhaps the most developed judicial structure that has ever been created, learning

from the mistakes and the flaws of both Nuremberg and the ad hoc tribunals, working to strengthen

the modern concept of international criminal justice. In analysing its structure and functioning, there

are some aspects that must be considered. The first aspect to contemplate is that the Court does not

operate in the framework of universal jurisdiction – as some of the criticisms seem to argue,

misunderstanding the limits of the ICC. The jurisdiction of the Court is in fact defined ratione

materiae, thus “limited to the most serious crimes of concern to the international community as a

whole”38, namely the crime of genocide, crimes against humanity, war crimes and the crime of

aggression, and based on an evaluation of the gravity of such crimes; ratione loci, hence only over

the territories of States Parties or over crimes committed by a national of such States 39; ratione

temporis, therefore just for crimes committed after the entry into force of the Statute or, if a State

becomes a Party after that date, after the entry into force of the Statute for that State 40; and ratione

37
Al Jazeera, ‘UpFront – Arena: Is the ICC biased against African countries?’, available at https://www.youtube.com/
watch?v=1XHyJYOYZDk [Accessed December 14, 2016]
38
Rome Statute of the International Criminal Court, Art. 5
39
Rome Statute of the International Criminal Court, Art. 12
40
Rome Statute of the International Criminal Court, Art. 11

11
personae, thus over natural persons who are nationals of States Parties, unless a national of a non-

State Party committed the crime in territory of a State Party, based on the general principle of

individual criminal responsibility. The exercise of jurisdiction is then regulated by Article 13, which

allows the Prosecutor to act on self-referrals by States Parties, on referrals by the UNSC under

Chapter VII of the Charter of the United Nations or proprio motu, initiating an investigation in

autonomy.41 As far as the alleged ‘African bias’ is concerned, it is important to emphasise how the

vast majority of African States have chosen, autonomously and independently, to sign and to ratify

the Rome Statute. Even if one was to agree with Mamdani’s assertion that “African countries joined

the ICC almost unthinkingly”,42 they nevertheless did and are now under the Court’s jurisdiction. In

addition, most of the cases have originated from self-referrals of African governments: the

Democratic Republic of the Congo, Uganda and the Central African Republic in 2004, Mali in 2012,

the Central African Republic in 2014 and Gabon in 2016. The Court only operated outside of this

scheme following a decision to open investigations proprio motu in Kenya in 2010 and Côte d’Ivoire

in 2011 (as well as in Georgia in 2016), and following a UNSC referral in Sudan in 2005 and Libya

in 2011 – with the support of African States that were members at the moment.43 A UNSC referral is

indeed the only mean by which the Court can operate in situations where it does not have direct

jurisdiction. It is crucial to take into account the fact that three of the most powerful States, the United

States, Russia and China, are not parties to the Rome Statute, and therefore not directly subjected to

the ICC’s jurisdiction, and that, in addition, they enjoy the right to veto any UNSC resolution. In this

scenario, it is reasonable to argue that the blame for the alleged failure to properly investigate

situations in States that are not under the Court’s jurisdiction should not be put on the ICC itself, but

rather on the UNSC. Reforming the UNSC would result in an exponential increase of the Court’s

efficacy, opening up the possibility to overcome the current permanent members’ veto power.

41
Rome Statute of the International Criminal Court, Art. 13
42
Al Jazeera, ‘UpFront – Arena: Is the ICC biased against African countries?’, available at https://www.youtube.com/
watch?v=1XHyJYOYZDk [Accessed December 14, 2016]
43
Benin and Tanzania in the case of Sudan (Algeria abstained); Gabon, Nigeria and South Africa in the case of Libya.

12
 The second distinctive characteristic of the Court is that it does not enjoy primacy with respect

to national courts, but that it can only operate when the concerned parties are unable or unwilling to

prosecute, that is to say that it works under the principle of complementarity. Such principle is

essential in the structure of the Court, securing that an opportunity is given to national justice systems

to prosecute international crimes, therefore respecting the principle of State sovereignty. According

to the Rome Statute, the prosecutor cannot begin an investigation without the approval of a Pre-Trial

Chamber and all the parties involved in the situation shall be notified before the beginning of an

investigation. If the parties committed themselves to investigate and prosecute the alleged violations,

then the ICC would be required to suspend its examination.44 While there have been failed attempts

to delegate investigations and prosecutions to national authorities, such as in Kenya 45, interesting

examples of complementarity and cooperation are the case of Colombia46 and the ongoing project in

the Central African Republic in which the Government is collaborating with the ICC and national

courts to operationalise the already established Special Criminal Court (SCC).

The concepts of jurisdiction, legal mandate and structural limitations have been frequent in

the defence of the ICC from the allegations of an unfair exercise of its prosecutorial power against

Africa. It is argued that the Court cannot function beyond its limits, which are nonetheless recognised,

and that the idea of the existence of an ‘African bias’ has been raised by a few African leaders which

are trying to delegitimise the Court in order to defend their immunity. According to this perspective,

it is not the ICC that has been politicised, but it is the AU that has tried to undermine the Court’s

credibility in order to safeguard its leaders from accountability, on the one hand, and to challenge the

broader political system perceived as unequal, on the other.

44
M. Du Plessis, ‘The International Criminal Court that Africa Wants” (2010), ISS Monograph 172
45
See the Commission of Inquiry into Post-Election Violence, known as Waki Commission, which did produce a final
report but did not lead to the establishment of a local tribunal, leaving to the ICC the task of investigating and prosecuting.
46
See for example K. Ambos, The Colombian Peace Process and the Principle of Complementarity of the International
Criminal Court: An Inductive, Situation-based Approach (Springer, Heidelberg, 2010); J. S. Easterday, ‘Deciding the
Fate of Complementarity: A Colombian Case Study’ (2009), Arizona Journal of International & Comparative Law 26(1)

13
A matter of politics (and priorities)

Considering the widespread perception, especially within the AU, that the current global order

is unbalanced and unfair, it is easy to understand how the Court’s focus on Africa can be seen as a

politically charged bias and as a further expression of the predominance of a few, powerful States on

both other members of the international community and on the law. In particular, such tension is

manifest in the specific relationship between the ICC and the UNSC, in which Africa has no

representation among the permanent members and whose legitimacy is contested based on the fact

that three members out of five, despite having the power to vote and to veto referrals to the ICC, are

not State parties to the Rome Statute.

In addition, one of the main contentions between the AU and the ICC has been the relationship

between peace and justice. In the light of the Bashir and Kenyatta cases, it has been argued within

the AU that, from a political perspective, peace is more important than justice and that going after a

Head of State means undermining the State’s sovereignty in a way that is discriminatory. However,

despite acknowledging the delicacy of such cases, it is important to remember that the ICC is a court

and that its mandate is to investigate and to prosecute suspects of grave crimes for which no immunity

is contemplated. By signing the Rome Statute, African leaders have agreed to such conditions as well

as to the duty to cooperate, even in the execution of arrest warrants. The attempt to secure immunity

for sitting Heads of State and senior government officials works against the principles of both the

ICC and the AU itself. More broadly, the attempts to undermine the ICC when no other viable solution

is feasible represents a huge wrong to the victims. As Fatou Bensouda put it, “what offends me most

when I hear criticisms about the so-called African bias is how quick we are to focus on the words and

propaganda of a few powerful, influential individuals and to forget about the millions of anonymous

people that suffer from these crimes […] because all the victims are African victims”. 47

47
See D. Smith, ‘New chief prosecutor defends international criminal court’ (The Guardian, 23 May 2012), available at
https://www.theguardian.com/law/2012/may/23/chief-prosecutor-international-criminal-court [Accessed January 8,
2017]

14
3. The Court’s rule of law between utopia and realism

Given the record of the activities of the ICC and the fact that it can also target high-level leaders in

order to hold them accountable, it is easy to understand why the Court has created some vocal

opponents. Some African leaders have insisted that it is biased against Africa, that it operates in a

discriminatory way and that it has no place on the African continent. The Court has been responding

with apolitical, technical arguments, highlighting its limits in jurisdiction and in mandate and arguing

that it is nonetheless performing at its best given the current, imbalanced political system. Even if,

with the exception of Georgia, all cases before the ICC are African, this geographical perspective

alone does not and cannot prove that the Court has been implementing a discriminatory, unfair

practice against Africa. It cannot be argued that the OTP has not worked openly and that it has not

given solid legal justifications on why some of the communications that it received were not

actionable; in addition, there are indeed numerous preliminary investigations in situations outside of

Africa, among which Afghanistan and Iraq in which the United States and the United Kingdom are

involved, and the fact that they have not yet resulted in processes and convictions might only be a

matter of time and of empowerment of a relatively young Court.

The destructive rather than constructive strategy of the AU in responding to the perceived

‘African bias’, however, is only contributing to jeopardising “efforts towards the objective of

universality of the Statute”.48 As Roach argues, many of the reasons underpinning the African

criticism to the ICC are to be searched for in the attempt of Africa to “come to grips with [the]

evolving and contradictory pressures on [African States’] identities”. 49 Drawing on inputs from

Thomas Risse50 and Kurt Mills 51, the author further argues that, from a constructivist viewpoint,

48
ICC ASP, ‘Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome
Statute by Burundi’ (18 October 2016), ICC-CPI-20161014-PR1244
49
S. C. Roach, ‘How Political Is the ICC? Pressing Challenges and the Need for Diplomatic Efficacy’ (2013), 19 Global
Governance 507
50T. Risse, ‘Let’s Argue! Communicative Action in World Politics’ (2000), 54 Int’l Org 1
51K. Mills, ‘Vacillating on Darfur: Responsibility to Protect, to Prosecute, or to Feed?’ (2009), 1 Global
Responsibility to Protect 532

15
States undergoing stabilisation processes may find themselves challenging the interpretation of their

multiple obligations in the process of defining their interests. The question then becomes one of

comparative advantages and political priorities, whether it is the fight against impunity or the

establishment of a cohesive regional power. In challenging the ICC in order to target the global power,

however, the only disservice is given to the victims. When it cannot be proven that the investigations

opened by the ICC are not deserving of intervention, the allegations of the Court being biased are a

distraction from its mandate.

If the alternative to this system is the African Court of Justice and Human Rights to be given

jurisdiction to decide on individual responsibility for crimes against humanity, war crimes and

genocide based on the AU proposal, such mechanism represents a step backwards in the fight against

impunity. The rule of law of such court would nonetheless be the rule of the powerful, with the only

difference that it would be nationally and not globally implemented. Furthermore, it makes little sense

to suggest that because justice cannot be served everywhere, then it should not be served anywhere.52

Nevertheless, the claim that the Court is biased against Africa and that it is a Western tool is

detrimental to the Court’s perceived fairness and credibility. In this scenario, what needs to be

carefully considered is whether it is only a few African leaders rejecting the ICC or if the lack of

confidence is broadly present in the people of Africa. Dismissing such claims on the apolitical

grounds of contingency and law has not been and cannot be enough. Becoming political, which is

something that the Court has always avoided, would not mean losing independence and neutrality,

but rather beginning to advocate for a healthier Court that could better serve those who deserve it and

for whom the Court was established.

52See AGJA, ‘The international criminal court is vital to our fight against impunity in Africa’ (The Guardian, 17
July 2016), available at https://www.theguardian.com/global-development/2016/jul/17/international-criminal-
court-vital-fight-against-impunity-africa-group-for-justice-accountability [Accessed January 4, 2017]

16
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20

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