The International Criminal Court (ICC) was established under the Rome Statute of 1998 as the first international legal body with jurisdiction to prosecute genocide, crimes against humanity and war crimes. African governments enthusiastically joined the Court and formed the largest regional bloc of member states (34 of 124), sensing its potential to transcend global power politics. But during the first 14 years of the ICC’s existence, the Court intervened exclusively in African states. With respect to Darfur in 2005 and Libya in 2011, the body targeted heads of state for mass atrocities at the behest of the United Nations Security Council (UNSC) – an institution whose permanent, veto-wielding members include three states (the United States, Russia and China) that have not joined the ICC. The ICC also investigated the future president and deputy president of Kenya for alleged atrocities committed during the 2007–08 post-election violence, although the ICC’s cases against them collapsed. For many, the Court’s record gave the impression of an institution that was focusing inordinately and prejudicially on African states. In late 2016, Burundi, South Africa, and The Gambia decided to begin the process of withdrawing from the ICC. This development has given rise to fears of a mass exodus, and raised the question of whether the ICC could remain a viable institution in Africa.
Perceptions and reality
Tensions between the ICC and some African states have been both overstated and over-simplified. Some African government officials have lambasted the ICC as a ‘neo-colonial’, ‘racist’ and ‘race-hunting’ institution that ‘blackmails’ African states. In response, ICC officials and supporters have often ascribed anti-ICC sentiment to a ‘few bad apples’ – namely, African dictators and despots afraid of the ICC’s scrutiny. While there certainly are African autocrats who loudly oppose the ICC, there are also subtler, multi-faceted aspects of the Court’s activity in the region. The fact that it took 14 years for the ICC to investigate a situation outside the African continent reinforces perceptions of anti-African bias. Yet the majority of the African situations under ICC investigation were referred to the Court by the African state in question, and all cases involved alleged international crimes of sufficient gravity to merit ICC attention for which there were no prospects of domestic accountability. Some governments, like Uganda and the Democratic Republic of the Congo (DRC), have benefited from the ICC’s having targeted their political adversaries.