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The ICC and Africa: Should the Latter Remain Engaged?

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Ethiopian Yearbook of International Law 2017

Part of the book series: Ethiopian Yearbook of International Law ((EtYIL,volume 2017))

Abstract

The International Criminal Court (the ‘ICC’ or ‘the Court’ hereafter) and Africa have had a tumultuous relationship since the creation of the Court. Although there has never been unanimous support for the Court in Africa, African states were key to the development of the Court and engaged closely with it since its early years. Since 2005, however, there has been a growing discontent with the Court and deterioration in the relationship between the Court and the African Union. Despite this, a number of African states remain committed to the ICC. In 2017, the withdrawal notifications of South Africa and Gambia were retracted, whilst the ‘mass withdrawal strategy’ is in reality a list of proposed changes to the Court’s mandate, as this piece will show. For the relationship between Africa and the ICC to continue to evolve, there needs to be more effective discourse between African states and the ICC. In the long term, it is necessary for African states to strengthen their national judiciaries; there is also an option of expanding the jurisdiction of the African Court of Justice and Human Rights to international crimes. However, the best way forward is to continue to engage with the ICC.

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Notes

  1. 1.

    Rome Statute of the International Criminal Court. http://legal.un.org/icc/statute/romefra.htm. Accessed 12 January 2018.

  2. 2.

    International Criminal Court website. ‘About’. https://www.icc-cpi.int/about. Accessed 12 January 2018.

  3. 3.

    African states parties to the Rome Statute at the time of writing are: Benin, Botswana, Burkina Faso, Cabo Verde, Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, Democratic Republic of the Congo, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius, Namibia, Niger, Nigeria, Senegal, Seychelles, Sierra Leone, South Africa, Tunisia, Uganda, United Republic of Tanzania, and Zambia. https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

  4. 4.

    Assembly of the African Union, Thirteenth Ordinary Session, 1–3 July 2009, ‘Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC)’.

  5. 5.

    Arnould (2017); du Plessis (2013); Vilmer (2016), pp. 1319–1342.

  6. 6.

    Assembly of the Union, Twenty eighth ordinary session, 30–31 January 2017, ‘Decision on the International Criminal Court Doc.EX.CL/1006(XXX)’; African Union, ‘Draft 2. Withdrawal Strategy Document’, 12 January 2017. https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. Accessed 7 August 2017.

  7. 7.

    See also Coalition for the ICC website.

  8. 8.

    The text of the decision was not yet public at the time of the writing of the present contribution but was on file with Makane M. Mbengue. Therefore there may be some minor language differences between the text that is quoted in the present contribution and the text that will be made public at a later stage.

  9. 9.

    International Criminal Court website. ‘Situations’. https://www.icc-cpi.int/#. Accessed 14 August 2017.

  10. 10.

    International Criminal Court website. ‘Office of the Prosecutor’. https://www.icc-cpi.int/about/otp. Accessed 12 January 2018.

  11. 11.

    Babington-Ashaye (2014), pp. 381–398.

  12. 12.

    Vilmer (2016) op. cit.

  13. 13.

    For example: The prominent Canadian academic William Schabas’ comments re Mr. Moreno-Ocampo in a Guardian interview: “he avoided situations where he would be likely to step on the toes of permanent members of the UN Security Council, from Afghanistan to Gaza to Iraq to Columbia”, in Smith (2012); Jean Ping, the former Chairperson of the African Union Commission: “ICC always targets Africans. Does it mean that you have nothing on Gaza? Does it mean that you have nothing [in the] Caucasus? Does it mean that you have nothing on the militants in Colombia? There is nothing on Iraq? We are raising this type of question because we don’t want a double standard”, in Kimani (2009).

  14. 14.

    It is interesting to note that an investigation into the situation in Palestine may be forthcoming, as in 2012 Palestine was granted the status of a ‘non-member observer state’ at the UN, and in 2015 was accepted as a party to the Rome Statute.

  15. 15.

    Dugard (2013), pp. 563–570.

  16. 16.

    Arnould (2017) op. cit.

  17. 17.

    Richard Lough, ‘African Union accuses ICC prosecutor of bias’, Reuters, 29 January 2011, available at: http://www.reuters.com/article/africa-icc-idAFLDE70S09L20110129 (last accessed on 15 August 2017).

  18. 18.

    Olugbo (2014), pp. 351–379.

  19. 19.

    Labuda (2015), pp. 289–321.

  20. 20.

    International Criminal Court, Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’, 15 September 2016.

  21. 21.

    du Plessis and Maunganidze (2016).

  22. 22.

    International Criminal Court, Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’, 15 September 2016; article 41.

  23. 23.

    International Criminal Court, Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’, 15 September 2016; article 9.

  24. 24.

    African Union, ‘Draft 2. Withdrawal Strategy Document’. 12 January 2017. https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. Accessed 7 August 2017.

  25. 25.

    Lansky (2017).

  26. 26.

    Reuters. February 22, 2017. ‘South African Court blocks government’s ICC withdrawal bid’. https://www.reuters.com/article/us-safrica-icc/south-african-court-blocks-governments-icc-withdrawal-bid-idUSKBN1610RS. Accessed 12 January 2018.

  27. 27.

    Ssenyonjo (2017), pp. 1–57.

  28. 28.

    Ssenyonjo (2017) op. cit.

  29. 29.

    Akande (2016).

  30. 30.

    Ssenyonjo (2017) op. cit.

  31. 31.

    See ‘Agreement Concerning the surrender of persons to the International Criminal Court between the Government of the United States of America and the Government of the Republic of Senegal’ concluded 19 June 2003. http://guides.ll.georgetown.edu/c.php?g=363527&p=2456099. Accessed 15 August 2017.

  32. 32.

    American Service Members Protection Act 2002 (particularly Section 2007(a) which prohibited military assistance to governments of countries that are parties to the Rome Statute); Nooruddin and Lockwood Payton (2010), pp. 711–721; Jalloh (2009), pp. 445–499.

  33. 33.

    For more detailed discussion see: Woolaver (2016, 2017).

  34. 34.

    Assembly of the Union, Twenty eighth ordinary session, 30–31 January 2017, ‘Decision on the International Criminal Court Doc.EX.CL/1006(XXX)’; African Union, ‘Draft 2. Withdrawal Strategy Document’, 12 January 2017. https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. Accessed 7 August 2017.

  35. 35.

    African Union, ‘Draft 2. Withdrawal Strategy Document’, 12 January 2017, para. 8, https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. Accessed 7 August 2017.

  36. 36.

    Kersten (2017).

  37. 37.

    Ngari (2017).

  38. 38.

    ‘South Africa: Continent wide outcry at ICC withdrawal. Victims’ advocates urge reconsideration, support for Court’. Human Rights Watch. 22 October 2016. https://www.hrw.org/news/2016/10/22/south-africa-continent-wide-outcry-icc-withdrawal. Accessed 5 August 2017.

  39. 39.

    ICC Pre Trial Chamber I, Prosecutor v. Lubanga, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-24, 24 February 2006.

  40. 40.

    ICC Appeals Chamber, Prosecutor v Jean-Pierre Bemba Gombo (Judgment on the Appeal Against Admissibility), 19 October 2010; American Society of International Law, ‘International Law in Brief’, 2 November 2010, http://asil.org/files/2010/ilib/ilib101101pdf.pdf.

  41. 41.

    ICC Appeals Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009.

  42. 42.

    ICC Appeals Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 78.

  43. 43.

    ICC Trial Chamber I, Prosecutor v Thomas Lubanga Dyilo, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements, 13 June 2008, para. 73.

  44. 44.

    ICC Appeals Chamber, Prosecutor v Thomas Lubanga Dyilo, Appeal on the Disclosure of the Identity of Intermediary 143, 8 October 2010.

  45. 45.

    ICC Appeals Chamber, Prosecutor v Thomas Lubanga Dyilo, Appeal on the Disclosure of the Identity of Intermediary 143, 8 October 2010.

  46. 46.

    ICC Trial Chamber, The Prosecutor v Germain Katanga, 7 March 2014.

  47. 47.

    ICC Pre Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, 7 February 2007.

  48. 48.

    ICC Trial Chamber, Situation in the Democratic Republic of the Congo, Prosecutor v Lubanga, Judgment pursuant to Article 74 of the Statute, 14 March 2012.

  49. 49.

    ICC Trial Chamber, Situation in the Democratic Republic of the Congo, Prosecutor v Lubanga, Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras. 976–1018.

  50. 50.

    Prosecutor v. Germain Katanga, ICC Pre-Trial Chamber Judgment, 2008.

  51. 51.

    Trial Chamber VIII, Situation in the Republic of Mali, Case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016.

  52. 52.

    Aksenova (2013).

  53. 53.

    ICC Press Release, ‘Katanga case: ICC Trial Chamber II awards victims individual and collective reparations’. 24 March 2017. https://www.icc-cpi.int/legalAidConsultations?name=pr1288. Accessed 27 July 2017.

  54. 54.

    African Union (2008) ‘Protocol on the Statute of the African Court of Justice and Human Rights’. https://au.int/sites/default/files/treaties/7792-treaty-0035_-_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf. Accessed 8 January 2018.

  55. 55.

    African Union (2014) ‘Protocol on amendments to the protocol on the Statute of the African Court of Justice and Human Rights’. June 2014. https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights. Accessed 2 August 2017.

  56. 56.

    African Union website. ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’ ‘Status list’. https://au.int/sites/default/files/treaties/7804-sl-protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights.pdf. Accessed 12 January 2018.

  57. 57.

    du Plessis (2012).

  58. 58.

    For an interesting discussion see (2016) ‘Seeking Justice or Shielding Suspects? An analysis of the Malabo Protocol on the African Court’. African Centre for Open Governance. http://kptj.africog.org/wp-content/uploads/2016/11/Malabo-Report.pdf. Accessed 8 January 2018.

  59. 59.

    Gaeta and Labuda (2017).

  60. 60.

    (2016) ‘Seeking Justice or Shielding Suspects? An analysis of the Malabo Protocol on the African Court’. African Centre for Open Governance. http://kptj.africog.org/wp-content/uploads/2016/11/Malabo-Report.pdf. Accessed 8 January 2018.

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Correspondence to Makane Moïse Mbengue .

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Mbengue, M.M., McClellan, K. (2018). The ICC and Africa: Should the Latter Remain Engaged?. In: Yihdego, Z., Desta, M., Hailu, M., Merso, F. (eds) Ethiopian Yearbook of International Law 2017. Ethiopian Yearbook of International Law, vol 2017. Springer, Cham. https://doi.org/10.1007/978-3-319-90887-8_8

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