When the International Criminal Court (ICC) was founded in 2002, most states considered it to be a breakthrough for the international fight against crimes of war, genocides, and crimes against humanity. Especially many African states ratified this promising international treaty and thus make up the largest share, currently representing 30% of the total number of the state parties.
However, in January 2017, only 15 years after the ICC’s creation, the African Union’s Assembly of Head of States and Governments published its decision to officially pursue the so called “ICC withdrawal strategy”, with which it invited all African Union (AU) Member States to abandon the treaty. What happened that made African leaders change their opinion about this Court so radically? Nowadays there are politicians calling the ICC an “International Caucasian Court for the persecution and humiliation of people of colour”. But does the AU make a valid argument, when it proclaims that the ICC has become a neo-colonial tool of the Western states to control African states?
On the other hand, there are also inverse voices, journalists who accuse African states’ leaders to only criticise the ICC because they fear its jurisdiction. So, does the AU’s distancing from the ICC on the contrary prove that many African states have turned their backs on humanitarian rights in the past years?
To answer these questions, the investigations against Omar Al-Bashir and against Uhuru Muigai Kenyatta will be examined as they constitute important turning points in the relationship between the AU and the ICC.
Two International Organizations
Since the adoption of the ICC’s legal framework in 1998 (the so-called Rome Statute) the declared goal was to persecute and try persons accused of committing the most serious crimes that affect the international community as a whole. Hence, to develop an institutional mechanism to fight impunity of heads of state, who are responsible for genocides, crimes of war or crimes against humanity, put an end to acts that threaten humanity and to strengthen the UN-Charta.
There are three different ways to make the Court start a preliminary examination. Firstly, state parties have the possibility to send a referral to the Court when one or various of the listed crimes in the Rome Statute have been committed within their territory or concern nationals of their state. Secondly, the ICC prosecutor can initiate a preliminary examination at own behest (motu proprio). Finally, the United Nations Security Council (UNSC) can act within the framework of chapter VII of the UN-Charta (Art. 13b, chapter VII UN-Charta). That means, that the UNSC can refer a case to the ICC. This is particularly noteworthy since the involved state does not even need to be a state party of the Rome Statute.
Founded in 2002, the African Union represents every internationally recognised state on the African continent. Historically the predecessor of this organisation was guided by the fight for independence and decolonisation, today it works on pan-African integration. The interests of the ICC and the AU seem to be in harmony as they share common ideas and goals, such as fighting for state’s sovereignty and human rights. Nevertheless, it must not be ignored that the AU, unlike the ICC[ZM1] [FA2] , sees itself as a political organisation.
The ICC vs. Omar al Bashir
As already mentioned above, many African states identified themselves with the undertaking at the beginning and even took a proactive role in the negotiations on the Rome Statute and the establishment of the ICC. This changed, when the UNSC decided to refer the conflicted situation in Darfur (Sudan) to the Court – even though this state is not a party to the Treaty of Rome. In 2002, when the so called “black book” proved the systematic and institutionalised exclusion of non-northern Arabic groups of the Sudanese population from politics and administration, people from Darfur and other regions began to form rebel groups to fight for equality, later for independence. When in 2005 the ICC began a preliminary examination against the Sudanese president Al-Bashir, he was accused to be responsible for different cases of crimes against humanity, crimes of war and even a genocide in Darfur. The UN holds Sudan’s government responsible for more than 300.000 civilian deaths, cases of torture and mutilation. The international community did not really question this responsibility. Notwithstanding, the referral by the UNSC was highly criticised, especially, although not only, by politicians from the African continent.
The first argument alleged by the critics was that the transferral of the situation to the ICC had made it more difficult to achieve peace in Sudan. Some states believed that it was not the right moment to provoke a political vacuum in the country by arresting Al-Bashir. However, according to the Rome Statute, peacebuilding and other political processes are not concepts the ICC must consider when it starts examinations. But most importantly, the ICC is a judicial institution which must act in line with the terms of its Statute and other relevant legal documents and comply with fundamental legal standards, like impartiality. It cannot consider extraneous arguments.
A second argument often raised to criticise the Sudan case is the principle of sovereignty regarding heads of state, who are not a part to the Rome Statute. Many states disagreed to persecute Al-Bashir, because Sudan does not form part of the Rome Statute and thus did never decide to subject itself to the Court. In fact, many African leaders welcomed Al-Bashir in their territory, when the ICC had already issued a binding arrest warrant against him. Since the principle of sovereign equality is part of the UN-Charta (Art. 2.1) it seemed to be an important argument. Nevertheless, the Rome Statute foresees in its Art. 27.2 that immunities and privileges that may “attach to the official capacity of a person […] shall not bar the Court from exercising its jurisdiction over such a person”. And even more importantly, the situation was transferred to the ICC by the UNSC. And since the ICC’s judges must follow the statute’s Articles, the principle of sovereign equality was to be dismissed.
However, there is a third, maybe the most important argument critics bring up in this case. The UN-body that initially asked the ICC to start preliminary examinations is a mere political institution that takes political decisions. It is not solely bound to obey juridical arguments. Art. 16 of the Rome Statute even foresees the possibility to defer a case and restart investigations later. Inside the UNSC it was especially the USA, the United Kingdom and France that did not want to seriously consider the possibility of a deferral. They alleged that it was a “political act of last resort.” One can aptly argue about the necessity to stop investigations in order to support peace negotiations. In the end, although Al-Bashir was not arrested, South Sudan did not achieve its independence until 2011 and the Darfur conflict remains unresolved until today. Apart from the AU, also the Arab League, the Organisation of Islamic Cooperation and the Non-Aligned Movement asked for a deferral making up for a total of more than 80 states which would have preferred this option. It is at least questionable why mainly three states should have the power to ignore the opinion of so many other states and force investigations upon a state that did not ratify the Rome Statute. Many heads of states understood this to be an insult to Africa’s right to have an equal voice in the world.
The ICC vs. Uhuru Muigai Kenyatta
The second very polemic case of the ICC is related to the post-election violence in Kenya in 2007. After the 2007 elections in Kenya, the opposition did not trust the officially proclaimed result. Street riots by those supporting the presidential candidate that had lost, led to more violence by the elected presidents’ supporters. In the end, more than 1000 people were killed and over 350,000 displaced. For the first time in its history, the ICC started preliminary examinations on its own behest against the leaders of the different political parties. Many persons were accused to have called for violence and thus provoked the escalation of this situation. Later, the ICC decided to defer this case, since witnesses seemed to be persecuted. However, the case remains to be closed only temporarily until today.
The AU vehemently criticised the ICC’s decision to start investigations in Kenya. A first argument was built around the principle of subsidiarity (Art. 17a Rome Statute). This principle says that the ICC can only start investigations when the state party itself does not. The ICC’s Jurisdiction established the “same person/same conduct” test for such cases, which means that the ICC has no competence, when there are investigations against the same person(s) for the same conduct(s) on the national level. In Kenya, the ICC found that there was no sufficient evidence that national bodies were satisfactorily investigating, especially with regard to the president Kenyatta. Ultimately it is difficult to prove which side was right.
The second argument against the ICC in this case was that the prosecutor started preliminary examinations for the first time in its history on his own behest. Given that until today, only nationals from African states have been sentenced by the Court this supported the claim of the investigatory bias. Nevertheless, there are information that might relativise the idea of the ICC targeting Africa alone. First, preliminary examinations take place in other regions of the world too, the problem is, that those for different reasons usually do not reach the trial stage. Apart from that, in all non-state parties the ICC lacks competence until the UNSC refers a case to it. That makes it more a UNSC problem than an ICC one. Moreover, there has been many referrals by African states themselves. Except for three cases, in which either the UNSC or the prosecutor started preliminary examinations, situations in Uganda, the Central African Republic, the Democratic Republic of Congo, Mali and in Ivory Coast have been referred to the ICC by the affected states themselves. Apart from that, not all African states support the idea of a withdrawal or the politic of non-cooperation nowadays. And at last, many judges and other people working for the ICC are nationals of states on the African continent.
In conclusion, you can say that it is quite difficult to adopt a clear position regarding that topic. It is a fact that to date only African nationals have been sentenced by the ICC. However, it does not seem that in the discussed two cases, ICC judges have committed juridical mistakes. The most critical point seems to be the link between the UNSC and the Rome Statute. As proposed by various states in different situations, the current order could be improved if the referral power of the UNSC was replaced by one of the UN-General Assembly, with representatives from all UN Member States. This might make referrals a more general decision, as more states would be involved in deciding whether a situation in a non-state-party calls for examinations by the ICC.
Lukas Fischer is a student of law at the University of Bayreuth. This article was written as part of the seminar “Researching key issues in African Law” in the summer semester of 2022.
 Ronen Steinke, Der Internationale Strafgerichtshof (Bundeszentrale für Politische Bildung, 2018) < https://www.bpb.de/themen/kriege-konflikte/dossier-kriege-konflikte/169554/der-internationale-strafgerichtshof/ > accessed on 02 september 2022
 AU (2017 B), Decision on the International Criminal Court (Assembly of the Union 2017) 4
 Peter Brett and Line Engbo Gissel, Africa and the Backlash Against International Courts (Zed books Ltd, The foundry, London 2020)
 Ed Cropley, ICC’s toughest trial: Africa vs. ‘Infamous Caucasian Court” (Reuters, 2016) < https://www.reuters.com/article/us-africa-icc-idUSKCN12S1U3 > accessed on 02 september 2022
 Carlos Torralba, Los que critican a la Corte Penal Internacional lo hacen porque le tienen miedo (El País, 2019) < https://elpais.com/internacional/2019/01/28/actualidad/1548708671_915180.html > accessed on 02 september 2022
 Cp. Rome Statute of the International Criminal Court 1998 (preamble)
 Ana Gemma López Martín, Derecho Internacional Público (3rd, Dilex, 2015) 33
 Christian Schaller, Der Internationale Gerichtshof – Aufbau und Arbeitsweise (Bundeszentrale für politische Bildung, 2014) < https://www.bpb.de/themen/kriege-konflikte/dossier-kriege-konflikte/180707/der-internationale-strafgerichtshof-aufbau-und-arbeitsweise/ > accessed on 02 September 2022
 Manfred Öhm, Sudan – Darfur (Bundeszentrale für politische Bildung, 2021) < https://www.bpb.de/themen/kriege-konflikte/dossier-kriege-konflikte/54699/sudan-darfur/#node-content-title-3 > accessed on 02 September 2022
 United Nation’s Human Right Council, Report of the Working Group on the Universal Periodic Review (thirty-third session, Agenda item 6 General Assembly 2016)
 Jakob Pinchon, Internationale Strafgerichtshof und Sicherheitsrat der Vereinten Nationen (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 2018, Springer) 93
 ICC, Understanding the International Criminal Court (International Criminal Court, 2020) < https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf > accessed on 02 September 2022
 Denis M. Tull and Annette Weber, Afrika und der Internationale Strafgerichtshof (SWP, 2016) 14 < https://www.swp-berlin.org/publications/products/studien/2016S02_tll_web.pdf > accessed on 02 September 2022
 Gerhard Werle, Lovell Fernandez and Moritz Vermbaum, Africa and the International Criminal Court (Springer 2014) 15
 Peter Brett and Line Engbo Gissel, Africa and the Backlash Against International Courts (Zed books Ltd, The foundry, London 2020) 40
[FA2]Maybe “that the AU, unlike the ICC, sees itself as a political organisation”?