Africa has a chance to counter pitfalls

Time for a new treaty to deal with crimes against humanity? Here’s what you need to know

Since its inception, the project of international criminal justice has been marked by a striking indifference to the long historical record of atrocities perpetrated by the Western world against people of the Global South, and Africa in particular. More recent attempts to construct an ostensibly universal system of criminal justice through the establishment of the International Criminal Court (ICC) have also been marred by the persistence of Western impunity.

A draft treaty on crimes against humanity under discussion within the halls of the United Nations at present could offer an opportunity to address some of the prevailing critiques of the ICC frequently charged by Global South states. However, the voices of the Global South — and particularly African states — have been largely ambivalent or absent in the treaty discussions so far.

Brief history of crimes against humanity

Crimes against humanity form one of the so-called core crimes, along with genocide, war crimes and aggression, that today define international criminal law. They comprise criminal acts — such as murder, torture, enslavement, persecution, rape and other forms of sexual violence — when such acts are knowingly committed as part of a widespread or systematic attack on a civilian population.

Crimes against humanity emerged in the wake of World War II as a response to the horrors of the Holocaust.

Although Western states presided over nearly four prior centuries of atrocities committed against people of the Global South in the name of conquest, empire and colonisation, it was only when comparable violence was unleashed within the borders of Europe itself that these states would come to concern themselves with codifying and universalising the criminalisation of such acts.

To recall the words of Aime Césaire, the cofounder of Negritude, a movement to restore the cultural identity of black Africans, Europeans “tolerated […] Nazism before it was inflicted on them, […] they absolved it, shut their eyes to it, legitimised it, because, until then, it had been applied only to the non-european peoples.” Neither the colonial conquest of Latin America and genocide of indigenous peoples, nor the enslavement, chattelisation and colonisation of Africans by Europeans in the centuries preceding World War II were sufficient to generate the Western moral outrage that would give rise to the official recognition of crimes against humanity — crimes that “deeply shock the conscience of humanity” — in the mid-20th century.

International criminal law and the Global South

Three quarters of a century after the end of World War II, international criminal law and the prohibition of crimes against humanity have acquired widespread acceptance and application. For example, the Rome Statute of the International Criminal Court, the world’s “court of last resort” established in 1998, has received broad ratification by states on all continents.

Even if they are not member states to the ICC, most have accepted the general notions of international criminal law, including the principal rules on crimes against humanity. States of the Global South are now, for the most part, willing participants in the project of international criminal justice. In fact, rather than