Africa needs ICC to safeguard itself
Amid war and conflict, the continent must keep its faith with the court, writes
THAT the International Criminal Court (ICC) is too focused on Africa is perhaps the most pervasive — and unfounded — critique of its work. Words such as “biased”, “targeted” and “politicised” dominate the public and media narrative. But dramatic headlines obscure the truth and distort the public understanding of what we do.
When the conference that founded the ICC started 17 years ago, the eyes of the world were on its delegates to herald in a new era of accountability for atrocity crimes. African leaders were among the staunchest advocates of the court.
Indeed, since its inception, African states have played a major role in the functioning of the ICC and have supported it at each step of its development.
First, as mentioned, African states were extremely supportive when the Rome Statute — the founding treaty of the ICC — was being negotiated. This was driven by recognition by African heads of state, civil society, and other stakeholders from the continent that the ICC was an important, independent judicial mechanism that could curb mass atrocities, bring justice to the victims, and promote peace and stability. Those motivations are very much valid today.
The first country in the world to ratify the Rome Statute was Senegal. This historically important and symbolic act was soon followed by other states from the continent and around the world. Today, African countries represent the largest regional bloc of states to have ratified the statute. We must not forget that history.
Africa then led the world of international criminal justice by referring situations of mass atrocities to my office for investigation; by co-operating with our investigations; by arresting and surrendering individuals sought by the ICC; and by protecting victims and witnesses.
Since the court became operational in 2002, my office has received more requests to investigate allegations of atrocities committed on their territories from African countries than from any others. Uganda, the Democratic Republic of the Congo, Ivory Coast and Mali have all invited my office to investigate and prosecute. The most recent country to call on my office to investigate potential crimes committed on its own territory is the Central African Republic — for a second time.
These concrete examples UNTOUCHABLE: Sudan President Omar al-Bashir returns to Khartoum in June this year after South African authorities failed to enforce an ICC warrant for his arrest demonstrate the faith of African leaders in the court and belief in its utility.
It is true that two situations in Africa have been referred to the ICC by the UN Security Council: Darfur, in Sudan, and Libya. My office is not bound to automatically accept referrals by the Security Council; it will do so independently and only when it is satisfied that the necessary legal requirements of the Rome Statute are met, as in the two situations cited.
Contrary to the fallacy that the ICC is focused on Africa, our workload is far from exclusive to the continent. We are conducting preliminary examinations in Afghanistan, Iraq, Colombia, Palestine and Ukraine, among others. As with everything we do, we are carefully assessing these situations independently and impartially. Let me be clear: I will not hesitate to open investigations in any of these situations to bring perpetrators to justice if our legal criteria allow us. Just last month, I asked ICC judges to authorise my office to investigate possible war crimes in the 2008 conflict in Georgia.
It must be emphasised that the continued co-operation of the court’s member states is essential to its work. The collection of evidence, witness protection, arrest and surrender of suspects, as well as the enforcement of sentences, are all carried out through the commitment of member states — 123 of them. They are the enforcement arm without which the court cannot meet its mandate.
The ICC is not a panacea. Rather, it is the ultimate backstop: addressing the injustices that fall through the gaps when national courts can’t or won’t step in. Without the ICC, no court would hear the voices of the victims, and no justice would be done. The protection and recognition of victims is a critical element of the ICC’s role: it cannot erase the damage caused by mass atrocity, but it recognises victims when no other court will.
As a Gambian and a proud African, I want to see Africa as most Africans want to see it: a prosperous and more peaceful continent in which citizen participation is fostered and the rule of law and human rights are respected and advanced.
In a decade from now, I would like to see a continent blessed with continuous economic growth and ample opportunity for its young population so they can constructively contribute and secure its future.
Fighting impunity for destabilising atrocity crimes is a fundamental precondition to the rise of a more peaceful and prosperous Africa. I firmly believe that reinforcing the rule of law and a healthy, well-functioning judicial system are fundamental prerequisites to political stability and economic growth.
On balance, in this new century, Africa has demonstrated a growing commitment to the rule of law and accountability for atrocity crimes. I believe it will continue in this direction. As it does, a firm commitment to the ICC remains a must.
We owe it to ourselves, our children and future generations to nurture the ICC so that it carries on its crucial work.
Protecting citizenry from the scourge of war and conflict through the vector of the law demonstrates political leadership, not weakness.
Bensouda is the prosecutor of the ICC
More requests to investigate from African countries than from any others