The African Union and the International Criminal Court: counteracting the crisis (Commentary)

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A very interesting paper reviewing strained relations between the International Criminal Court and the African Union and how to go about easing that relation, providing a context to the story. Here is my takeaway from this paper though I recommend reading it in full;

Issues faced by ICC

  1. Scarcity of Prosecutions (in 15 years only 4 individuals found guilty)
  2. Limited material capacity with  (€139.5 million budget)
  3. Perceived risk of political manipulation

Growing African Backlash against the ICC

  1. Threat of mass withdrawals by AU states from the ICC
  2. To African heads ICC is both pretext for populist postcolonial discourse and tool potentially useful against their opposition.
  3. ICC Prosecutors office played the African governments game by accepting to take sides in prosecuting rebels while ignoring crimes by heads of state
  4. Many officials play “terrorism” card to which they know the west is sensitive though claims do not stand up to scrutiny.

The way forward;

1. ICC should investigate more cases outside Africa (not mere preliminary enquiries)

2. Enhance domestic judicial capacity of states unable to investigate/prosecute themselves. Such capacity also includes legal reform (with help of civil society) as well as infrastructure investment with possible external assistance.

3. Establishing intermediary institutions to increase AU-ICC cooperation which could take forms of;

  • ICC Chamber in Africa (ICC conducts part of the work outside the Hague)
  • ICC Liaison office at the AU
  • AU-ICC Cooperation Agreement; similar to one ICC signed with UN & EU
  • Mixed chamber of African & International Judges in the African Court of Justice and Human & Peoples’ Rights

It is important to show that the West is open to projects going beyond the ‘national jurisdiction vs ICC’ binary.

4. Encourage states that support (or at least not oppose) ICC including (Algeria, Botswana, Cote d’Ivoire, Nigeria, Senegal & Tunisia)

5. ICC should draw on support of Civil society & important African voices like Kofi Annan.

Beyond all of the above it is important to recognize the important role of the ICC which in many cases it has not been able to perform as effectively as expected. It is therefore an institution that is overdue for an assessment/review to make sure it able to function as intended even if this means applying a realpolitik approach to curtail its role and help it focus on functions/mechanism it is able to achieve. This coupled with promoting the development of similar regional entities as suggested in this paper could be a win-win proposition.

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