As a result of years of diplomacy and pressure by human rights organisations, the jurisdiction of the International Criminal Court (ICC) finally came alive on 1 July 2002. Created by the United Nations Security Council (UNSC), the Court is a permanent institution that investigates and prosecutes the authors of serious crimes committed after the entry into force of the Rome Statute and within the scope of its jurisdiction, regardless of the official and hierarchical quality of the person charged.

This article discusses the interactions between the political and the judicial aspects of the ICC, which is alleged to focus on crimes in Africa and ignore atrocities in other parts of the world. In addition, fearing the instrumentalisation of the Court for political purposes and the spread of complaints against their leaders or military personnel, some states such as the U.S., China and Russia refused to ratify the Rome Statute. Yet these countries are permanent members of the Security Council which has a power of referral and blocking of cases on the ICC, a power that opens a door to interference in the affairs of another state. So far the cases handled by the ICC show that the issue of the exploitation of international justice, for political reasons, is still a major weakness.

Overall, it seems the Court’s actions in general and in Africa in particular are being hindered by political factors. With the recent vote by parliament to push withdrawal of Kenya from the Court, or the Sudanese president’s stalled prosecution (which country is not member of the Rome statute), the perception of the Court as a western instrument discriminately targeting Africans has been reinforced. In this context the African Union (AU) called an extraordinary session 11-12 October 2013 to address an eventual massive pull-out from the ICC by the 34 African member states [1]. But is it because other suspected criminals are not being prosecuted that the ICC should not look at African cases? Or is this a problem of impartiality? This article will present some of the ICC rules in order to re-focus the debate, discuss the supposed “Africanisation of the Court” and ways forward to bolster its action.

ICC RULES

To understand the perceived Africanisation of the Court, below are some quick procedures. To initiate a trial, the ICC can be moved into action by a State which has ratified the Rome Statute, the UNSC or by the prosecutor‘s office. However, under the principle of complementarity, States retain principally the responsibility to prosecute suspects for the most serious crimes in their own courts. The ICC has jurisdiction:

• In case of failure or unwillingness of states. In addition, the Court may exercise its jurisdiction;
• If the crime is committed in a State Party or a State which accepts the jurisdiction of the Court;
• If the suspect is a national of a State Party to the ICC or of a State which accepts jurisdiction and
• If the crimes were committed in circumstances endangering international peace and security. In the latter case, the Security Council may refer a case to the Court under Chapter VII of the UN Charter;
• The Prosecutor may decide himself also to prosecute a case.

The ICC Statute cedes to the Security Council a dual role: the power of referral, giving the Court increased competence in these cases, and the suspension of investigations and prosecutions that the Court could be carrying. The UNSC may only refer a matter to the Court in the context of Chapter VII of the UN Charter, that is to say when there is “determined existence of a threat against the peace, breach of the peace and acts of aggression”. This possibility of referral to the Court by the Council has two characteristics: the randomness of its implementation and expansion of powers of the Court to States non-party to the Treaty. But it is true that the referral by the UNSC expands the powers of the Court insofar as it gives it the opportunity to pursue States not part to the Treaty. Indeed, the other modes of referral to the ICC (the self referral by prosecutor of the Court or by a State Party) assume States are party to the Treaty. Through the power of the UNSC, the power of the Court is significant because it provides an opportunity to tackle serious crimes in countries within and outside the Rome Statute within the meaning of Chapter VII.

Another serious point to look at in those rules is the self-referral power given to the prosecutor. That power could be used to target countries of choice, which is one of the reasons why powerful countries did not come on board. They feared the independence of a prosecutor who could almost single-handedly decide to open an investigation on the basis of politicised complaints. The U.S. was mostly of this opinion. But although the prosecutor can search, gather information and, if there is a reasonable basis to initiate an investigation, request for authorisation of investigation from the Pre-Trial Chamber together with any supporting material collected (article 15, Rome statute), the Pre-trial chamber has the power to authorise or reject an investigation. So the fear that the prosecutor could be the most powerful man on earth by prosecuting whomsoever they want is unjustified.

It is worth recalling that according to Article 1 of the Rome Statute, the ICC is complementary to national criminal jurisdictions. It is true that the Court has universal jurisdiction but all of the domestic means must have been exhausted before referring a matter to the ICC. The jurisdiction of the Court could be activated in case of incapacity or unwillingness of a State to address the problem. Paragraph 2 of Article 17 of the Statute provides the basis on which the Court may determine the existence of this unwillingness. This could be the manifest purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court or undue delay denying intent to bring the person concerned to justice, the lack of independence or impartiality. Regarding the inability of the State concerned, Paragraph 3 refers in particular to the collapse of the whole or a substantial part of the state judiciary system.

As mentioned before, some permanent members of the UNSC have not ratified the Rome Statute but may refer a situation involving another State not party to the Statute while those members are themselves immune [2]. Nonetheless, the prosecutor still has to examine the admissibility of the case referred to them according to the principle of complementarity (like it has been done for the Sudanese case) and thus protect the Court from any political influence one would think. Therefore this establishes that, despite the influence of the UNSC, if the case referred to the Court by the latter is not eligible, it will not be processed.

A TALE OF AFRICANISATION

The ICC is competent for cases with a strong political component as demonstrated by the recent AU meeting calling for withdrawal of African states. As earlier mentioned, ICC will not prosecute cases when the State itself can do it. Moreover, out of the 18 cases currently handled by the ICC, 12 were initiated upon the request of countries concerned, while 6 were referred to by the UN Security Council [3].

For example, Uganda, in 2003 requested that the ICC look into crimes committed by Joseph Kony and the Lord’s Resistance Army in Northern Uganda. Cote D’Ivoire, which did not ratify (but signed) the Statute, accepted the Court’s jurisdiction over war crimes committed during the 2011 civil war. Mali’s government in 2012 asked the court to investigate crimes committed during the armed conflict in northern Mali in 2012. So, whether African leaders want to acknowledge it or not, they invited the ICC into Africa. It is then hard to understand that feeling of African states who were the first to call in the ICC to prosecute cases.

The office of the prosecutor has made public that it is examining at least eight situations on four continents, including Afghanistan, Colombia, the Comoros, Georgia, Guinea, Honduras and South Korea [4]. The situation in Kenya is the International Criminal Court’s (ICC) fifth investigation. On 31 March 2010, ICC Pre-Trial Chamber (PTC) II authorized the ICC prosecutor to open an investigation into crimes against humanity allegedly committed in Kenya in relation to the post-election violence of 2007-2008. It was the first time that the prosecutor used his “proprio motu” powers to initiate an investigation without first having received a referral from a state party or the UNSC [5].

For instance, at the recent African Union summit held on May 26-27, the AU's Assembly adopted a decision requesting the ICC to refer back to Kenya its cases against Kenyan President Uhuru Kenyatta and Vice President William Ruto. But it is to be recalled that ICC came in because Kenya failed to put in place a special tribunal to prosecute the cases. In fact, The Waki [6] Commission recommended that a local tribunal investigate and prosecute those suspected of criminal conduct. The Kenyan parliament voted against such a tribunal [7]. Despite being given nearly 18 months to do so, Kenyan authorities declined to initiate any proceedings against the alleged perpetrators of the violence. Special envoy Kofi Annan then handed over a list of six suspects’ names to the ICC.

Understanding the way the court works, it seems that there are other motives behind the discourse of victimisation of African states. As Simon Allison says, African leaders are interested in immunity [8] more than anything else. The argument of the Court only prosecuting Africans cannot be valid even if that is a fact. The presidents are just protecting themselves but it should not be forgotten that crimes were actually committed in the prosecuted cases.

AN EFFICIENT AFRICAN COURT

It is now established that African countries are no longer happy with the ICC even if they invited ICC in first place. But let us remember that the Court exists in the principle of complementarity of national jurisdictions and the Rome Statute has been ratified by 34 of the 54 African countries.

It is important to think about the Court not in a way of having “negative complementarity”. Indeed, as Max Duplessis (2012) explains, negative complementarity can be understood as “an attempt to undermine the existing work of the ICC through a commitment to an alternative mechanism for dispensing international criminal justice but which stands no realistic chance of providing such justice” [9]. Then, the existence of an effective African Court of Justice and Human rights will help the African continent deal with its matters. In fact, there have been efforts to graft an international criminal chamber to the body of the African Court [10]. In February 2010, the AU Commission began a process to amend the protocol on the Statute of the African Court of Justice and Human Rights to expand this court’s jurisdiction to include international and transnational crimes.

The resultant draft protocol adds criminal jurisdiction over the international crimes of genocide, war crimes and crimes against humanity, as well as several other crimes such as terrorism, piracy and corruption. This is an ideal goal for the continent which could even fill the impunity gap in some states. Given the fact that only 34 states ratified the Rome statute, an African jurisdiction would have competence over the whole continent. This court would be able to fulfil its obligations and be independently financed so as to prosecute cases and bear the whole implied charges. Though an African court may even less solve than raise issues: effectiveness, fiscal implications, independence, impartiality and competence between that court and the ICC. Max Duplessis’ analysis shows for instance that the ICC’s budget is more than 14 times that of the African Court without a criminal component; and is just about double the entire budget of the AU [11]. So it is likely that many concerns exist about that African Court.

WAY FORWARD

There is no doubt that the ICC justice has a politicised nature and, as Phil Clark noted in an interview given to RFI, in some cases, the selective cooperation of some African governments to the ICC is the problem. There are three African governments (Côte d’Ivoire, Uganda and Congo) who used the Court against their opposition. Is it possible that the Court became a political tool used by some governments in Africa to attack opponents and protect their officers [12]? This dimension shows that the ICC is not just a western tool for dominating Africans.

So the ICC should just pursue the crimes committed by rebels against a government but not those crimes committed by a government. The ICC falls into that political trap of being used to just prosecute rebels. Now the AU seems to protest every time it does not agree with the court. For instance, the AU’s decision not to cooperate with the ICC stems from the UN Security Council’s refusal to defer proceedings in Darfur for the period of one year [13], and now the AU is planning massive withdrawal from the court because of the Kenyan case. Following the recent AU extraordinary summit, there is the need to emphasise that African member states have been using that organisation as a shield not to collaborate fully with the court.

In fact, on one hand State parties are obliged under the Rome Statute to cooperate fully with the ICC in its investigation and prosecution of crimes within the court’s jurisdiction. On the other, the AU’s Constitutive Act warns that the failure of a member state to comply with its decisions may result in sanctions. Hence, Kenya welcomed the President Bashir in 2010 for the country’s new constitution on the basis of respecting AU’s non-cooperation decision [14].

By prosecuting perpetrators of crimes, as some states have all the means to do, they prevent the activation of the jurisdiction of the Court. Moreover, the prosecutor’s powers are limited by the need to submit an application for authorisation to investigate to the Pre-Trial Chamber.

The Court needs to look at the right of veto of the permanent members of the UNSC which can be an obstacle to the referral procedure. Indeed, if one of the "Big Five" decides to protect a country where serious crimes are taking place, the veto could make any referral impossible as it is witnessed in Syria. The UNSC may decide to pass a resolution to freeze the activities of the Court for a period of twelve months, renewable. Cases may be suspended by the UNSC regardless of the methods of referral. In addition, to function fully and effectively, the Court depends on the willingness of states resulting in confidence in this institution, signature and ratification of the Convention.

It is the Rome Statute itself that gives to the UNSC the power it has. According to Nabil Elaraby (2001), the general umbrella of the council will always go over the cases before the ICC [15] because the crimes falling under the court’s jurisdiction are serious crimes that threaten world peace and security, the area of jurisdiction of the UNSC under Chapter VII of the UN Charter. The independence of the Court will actually be guaranteed when its procedures will be free from the political influence of the Security Council, but also be aware of its political instrumentalisation by African governments.

It should no longer be permitted to use the veto in Security Council on international crimes cases. Though UNSC members really cherish it, the power of the veto should be reduced concerning ICC cases. The case in Syria is not actually prosecuted because of the veto of Russia while human rights violations are being committed. And if the powerful states still fear the court action, they can still argue that their judicial system is still working and that they can take care of their own cases.

With the growing perception of the court targeting Africa, it is important that the UNSC refers the Syrian case to the court as they did with Sudan. Sudan has not signed the Rome Treaty but President Bashir actually has an international warrant arrest on his head.

In any case the Court should review its way of functioning because the international community is not ready yet to deal without that court. The only way politics seems to play over the judiciary is through the Security Council’s referral power.

* Gino Vlavonou is Junior Fellow, Institute for Security Studies (ISS), Nairobi Office.

ENDNOTES

[1] BBC (2013), African Union summit on ICC pullout over Ruto trial, http://www.bbc.co.uk/news/world-africa-24173557, accessed 24 September 2013
[2] Bourguiba, L. (2008) La Cour pénale internationale: modèles de saisine et limites, Confluences méditerranée, Justice pénale et politique internationale (64), 194 pages.
[3] Solomon Dersso (2013), The International Criminal Court's Africa problem,
http://www.aljazeera.com/indepth/opinion/2013/06/201369851918549.html, accessed 24 September2013
[4] Coalition for the International Criminal Court (2013), Court Developments in Relation to Other Countries http://www.iccnow.org/?mod=developments accessed 24 September 2013
[5] Coalition for the International Criminal Court, Kenya, http://www.iccnow.org/?mod=kenya accessed 24 September 2013
[6] Kenyatta and Ruto’s roles in the post-election violence were confirmed by an independent Kenyan investigation led by Kenyan Judge Philip Waki
[7] Sivu Maqungo (2013), Kenya and the ICC: A tale of three mistakes and the cruellest gamble, ISS today, http://tinyurl.com/ozsa63v, accessed 25 September 2013
[8] Simon Allison (2013), Daily Maverick, Analysis: In protecting Kenyatta and Ruto, the AU betrays us all, http://tinyurl.com/kyq29oz, accessed 24 September 2013
[9] Du plessis, M., Louw, A., and Maunganidze, O. (2012), African efforts to close the impunity gap, Lessons for complementarity from national and regional actions, ISS Paper 241 November 2012, available at http://tinyurl.com/lp4gwp9, accessed 24 September 2013
[10]Ibid
[11] Du plessis, M. (2012), Implications of the AU Decision to Give the African Court Jurisdiction Over International Crimes, ISS Paper 235 June 2012, available at http://tinyurl.com/n4hpde4, accessed 24 September 2013
[12] RFI (2013), Rogez, O., Phil Clark: «la CPI a une certaine naïveté politique», http://tinyurl.com/k5b7da2 accessed 25/09/2013
[13] Du plessis, M. and Gevers, C., (2011), Balancing competing obligations: The Rome Statute and AU decisions, ISS Paper 225, October 2011, available at http://tinyurl.com/mu2qdat, accessed 24 September 2013
[14]Ibid
[15] Elaraby, N. (2001). The role of the Security Council and the independence of the international criminal court: some reflections In M. POLITI & G. NESI (Eds.), The rome statute of the international criminal court: a challenge to impunity, Italy.

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