The Future of the International Criminal Court in Africa (Part II): The Birth of an “African Criminal Court”

This guest blog by Kiconco Katabaazi Patrick (candidate on the UCC LLM International Human Rights Law & Public Policy programme) examines the African Union’s proposed African Court of Justice and Human and Peoples’ Rights.

Introduction

In 2012, after series of engagements within the African Union system, Ministers of Justice and Attorneys General on Legal Matters resolved to amend the Protocol on the Statute of African Court of Justice and Human Rights by extending its jurisdiction to cover international crimes.

On 27th June 2014 the AU’s Assembly of Heads of State and Government sitting at the 25th ordinary session of African Union adopted the Protocol in Malabo, Equatorial Guinea and in effect extended the mandate of the African Court of Justice and Human and Peoples’ Rights to cover International Criminal Law.

Through this intervention, the African Union replicated crimes covered under Rome Statute of the International Criminal Court (ICC) such as genocide, crimes against humanity and the crime of aggression, but additionally included crimes that were not previously known as traditional crimes under international law such the crime of unconstitutional change of government, terrorism, corruption, money laundering and others.

From the list of crimes under the jurisdiction of this court one would conclude that the African Union has embarked on a very ambitious journey which may present some future hurdles in implementation.

As discussed in the previous blog article, African leaders were very enthusiastic in embracing the ICC and became very active in referring both real and perceived political opponents – until the reality of their own possible prosecution set in.

It is still too early for one to dismiss the newly constituted African court as a non-starter, but it is important to appreciate that to-date only 11 out of 55 AU member states have signed the amended statute, with zero ratifications and zero deposits in spite of the fact that the Protocol and the accompanying statute are mandated to enter into force 30 days after the deposit of instruments of ratification by 15 member states. As a result, the court does not yet have the authority to utilise its newly granted powers.

It would seem to me that the pressure and zeal of African leaders demonstrated at the height of the ICC’s hot pursuit of the Presidents of Kenya and Sudan has since subsided and the need for an African specific criminal court may after all not be as urgent as it was in yester years .This is particularly so because one of the arguments that has been consistently flaunted by Kenya was that the ICC needs to allow national courts and other African-based judicial mechanisms to be given a chance and that intervention from The Hague should be at last resort.

With Kenya off the radar of the ICC for now, this aggressive campaign to start an African version of ICC may no longer seem very attractive. This may explain why Kenya became the symbolic first signatory on 27th January 2015 but has since failed to ratify and deposit the Protocol and statute.

It may be argued that with the changes in the political landscape particularly in South Africa, Zimbabwe, Gambia and others, the issue of having a court motivated by the leaders’ misgivings against the ICC may be watered down.

Besides, one of the biggest concerns that preceded this protocol, which is still relevant today, is the issue of funding. The African Union itself is largely dependent of donations and as such supporting a very expansive court to standards required may be a tall order in light of the fact that most African states are still struggling to provide adequate funding for their own national courts.

How will the African Court of Justice and Human and Peoples’ Rights affect ICC?

Whereas it is speculative to focus so much on the likely effects of the new powers of the African Court of Justice and Human and Peoples’ Rights before the Protocol comes into force, it clear that Africa as a block constitutes a third of the total membership under the Rome Statute and its decisions (as long as they are taken as a block) have implications on the ICC.

One such decision to circumspectly look out for and how it will play out is the ‘withdraw strategy’ which was adopted at the Assembly of African Union that I have already pointed out. It will be interesting to see how this African Court will relate with the ICC given that that some hitherto vocal supporters of the former, such as South Africa and Gambia, seem to have developed cold feet.

However, it remains a concern that an African criminal court may pose challenges for the ICC as this could give room for excuses for African leaders to withdraw from the ICC on the pretext that they have their own court of a similar jurisdiction. It is also likely that some may not withdraw from the ICC but may find it difficult to cooperate with requests and warrants from the ICC as has been the case with President Al-Bashir.

The other glaring challenge is that the ‘African Criminal Court’ will not have jurisdiction to charge sitting Heads of State and Government and thereby lowering the standard set by the Rome Statute and as such if African states prioritise their court ahead of the ICC, citizens on the continent will be denied a sense of protection from ruthless rulers and leaders.

Whilst this fear is logical, it needs to be clear that whereas the Rome Statute recognises national courts, it does not have any provision that recognises interstate or regional courts and so developments within the African Union may not have direct adverse legal implications on the power and authority of the ICC.

Nonetheless, it remains to be seen how the ICC will deal with the mounting pressure from the African block and my view is that there is a need for strategic engagements by stakeholders to see how ICC can be strengthened rather than weakened. Stakeholders such as UNSC are important because if their actions in referring cases to ICC do not reflect fairness, the ICC as a justice-centred institution will continue to face reputational problems.

Further, ICC needs to broaden stakeholder engagements and consider establishing closer relationships with citizens of member states through their representatives. This is important because it has been established that the ICC enjoys great public support from ordinary citizens including from those countries whose leaders have been vocal against the court. In Kenya for example, an opinion poll conducted by IPSOS Synovate in 2013 revealed that 67% of respondents were in favour of the ICC’s process at same the time when President Uhuru Kenyatta and his henchmen were vigorously campaigning against it.

Citizens can be engaged through their respective Parliaments/National Assemblies with aim of broadening support and building a knowledge base that can help legislators make informed decisions. Parliaments are critical and the case of Gambia and Burundi is clear demonstration that weak parliaments can be used by leaders to rubber stamp things that may even be against public interest such as casually withdrawing from the Rome Statute without public participation.

Other institutions such as the judiciary and civil society organisations play a vital role in creating checks and balances in member states .In South Africa, for example, when the executive arm of government defied the ICC by refusing to detain and hand over Al–Bashir, the High Court and later South African Supreme Court of Appeal made orders that have capacity to influence how situations of a similar nature will be handled in future.

Beyond strategic engagements with Heads of States/Heads of Government and departments responsible for foreign affairs, the need to create linkages with legislature, judiciary and civil society cannot be over emphasised. This may require the creation of a strategy and policy coordination office which may be a stand-alone department or it can be placed under the Independent Oversight Mechanism (IOM) to ensure that the ICC as an institution gets reasonable visibility on key issues.

Conclusion

It should be recalled that the establishment of the International Criminal Court was a long and often a very capricious process involving extensive negotiations and compromises. What we learnt from the two world wars is that human-made catastrophes such as the ones witnessed then may be caused by very small things. What starts as a small dispute involving few countries has the potential to generate into a full blown crisis with very serious consequences for the human race. With improved technology the threat of mass destruction caused by a small dispute is even greater.

The idea to create a global criminal court started way back in the 19th Century but did not materialise until 1948 when the International Law Commission was established. Even then, it took over fifty years to finally deliver the Rome Statute. The ‘road to Rome’ was long and more often than not bumpy and therefore any attempts to weaken or kill this clearly betrays victims of crimes this court was set up to fight and in addition such endeavours undermines huge sacrifices made by all players involved in the birth of the ICC.

Further, our inability to forecast future events with precision is another strong reason why we must fight to consolidate the achievements made and perhaps strive to make the ICC stronger and tougher.

African Union therefore, should instead advocate for reform of the ICC to ensure that it achieves its objectives rather than weakening it, and even if the African Court of Justice and Human and Peoples’ Rights opens its doors for business there is a need for dialogue – particularly on crimes under the jurisdiction of ICC. The Chief Prosecutor Ms Fatou Bensouda of the ICC and newly elected President Judge Chile Eboe-Osuji are from Africa and who knows – the future of the ICC could have greater prospects on the continent after all!