International Criminal Court: an African failure

The International Criminal Court will change its Attorney General. A Briton will replace Gambian Fatou Bensouda. The opportunity for the ICC to “de-Africanize”?

It was supposed to "end impunity and establish the rule of law" in all countries of the world. The International Criminal Court (ICC) is perhaps ultimately misnamed: accused of "racial hunting" by the African Union for several years, the ICC seems indeed to be fixated on the African continent: in 2016, on the nine of the countries under investigation by the ICC, eight were African.

Sufficient to judge the Court as “neocolonialist”. But a new era is looming. The ICC will indeed change attorney general, which necessarily augurs a change of course and a “de-Africanization” of business. On the occasion of the announced departure of Fatou Bensouda, who occupies the post of prosecutor general of the Court, a debate is launched. Should the ICC stop attacking Africa and go international?

A new attorney general

However, the ICC's primary mission is to try people accused of crimes against humanity or of war, regardless of their nationality. But authoritarian regimes in South America, Asia and Eastern Europe, among others, have had very little to worry about the legal fallout from an ICC trial. A few weeks before the British Karim Khan takes office, the time has come for introspection for the ICC, after what does indeed look like a failure on the part of the Gambian Fatou Bensouda.

An International Criminal Court, however, was an attractive idea on paper. Proof of this is the accession of African states to the ICC, inaugurated by Senegal, which had ratified the Rome Statute in February 1999. 34 of the 54 African countries then followed suit in Dakar, with the aim of establishing security, peace and an honorable exit from armed conflict. The ratification of the Rome Statute, for these same States, also eager to break with the image of the persistence of the cult of impunity and that of States incapable of ensuring the independence of their national criminal jurisdictions, therefore seemed to be logical. .

The Sudanese failure and the Ivorian rout

And for good reason. The first cases dealt with in The Hague tribunal concerned Uganda and the Democratic Republic of the Congo in 2004, then the Central African Republic in 2005. There was a real desire on the part of these African countries to break with a tumultuous past, by bending to the rules of a new international jurisdiction. But at what cost ? The ICC, often lacking credibility and legitimacy, has been accused of opportunism, taking advantage of conflicts in Africa to focus only on crimes perpetrated on the continent, forgetting to look internationally.

An African obsession that displeased the African Union. Some countries, such as Burundi and South Africa, have also decided to withdraw from the ICC in 2016. Others have welcomed the Sudanese Omar al-Bashir, to the full knowledge of the Court, which has had to wait for action by the Sudanese army to deal with the president's case. Some specialists explain these errors by the youth of the ICC. Others reproach the Court for only attacking the weakest in order to establish its good rights. And it was not the release of Laurent Gbagbo, the former Ivorian president, who fixed the opportunist image of the ICC.

The African Union plague the ICC

What if the explanations for this African obsession could be found by studying the conflicting link between the Court and African countries? Deeming the ICC imperialist and neocolonial, the African Union initially refused the creation of a liaison office with the international jurisdiction and even expressed, symbolically, the wish to withdraw from the Rome Statute in January 2017 in Addis Ababa. An approach that could not succeed, the AU was not a signatory of the famous document, since it is up to each State to choose or not to do so.

The development of international justice within the framework of the maintenance of peace being the main stake of the ICC, it will be able to keep its credibility only if it admits and corrects the geographical imbalance, and therefore the treatment sometimes considered arbitrary concerning its investigations. To do this, it should be encouraged to broaden its investigative radius and the arrival of a new attorney general can only be of salvation. But the ICC will also have to encourage national courts to investigate themselves. Karim Khan has promised to end this "obsession with Africa".