Fatou Bensouda ICC Prosecutor

Topic for March 2013 – July 2013

Current Question on Africa Is the International Criminal Court (ICC) targeting Africa inappropriately?

All situations and cases under investigation or prosecution by the ICC are in Africa. Since its establishment in 2002, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has investigated eight situations involving alleged violations of international criminal law. Each of these investigations related to situations in Africa, namely, the Democratic Republic of the Congo (DRC), Uganda, the Central African Republic (CAR), Darfur/Sudan, Kenya, Libya, Ivory Coast, and Mali.

While the OTP has received information on alleged abuses in other parts of the world, such as Iraq, Venezuela, Palestine, Colombia, and Afghanistan, it has decided not to open investigations into those situations or kept them under preliminary examination in order to make a determination on whether to proceed with an investigation.

Critics claim that the OTP’s focus on Africa has been inappropriate. The Chairman of the African Union Commission accused the OTP of African bias, exclaiming, “Why not Argentina? Why not Myanmar…Why not Iraq?” Rwandan President Paul Kagame has dismissed the Court, saying it was created to prosecute Africans and others from poor countries. Critics note that the OTP has yet to open an investigation into crimes allegedly committed in a territory or by nationals of States that are wealthy and powerful and argue that the failure to do so has weakened support for the ICC in African countries and given the impression that the ICC is partisan. In addition, some argue that the ICC’s work has interfered with efforts to achieve peace in Africa or that under-developed, unstable, or stateless territories need foreign aid more than international criminal investigation and prosecution. Even where a situation in Africa has been referred to the Prosecutor by a State Party or the Security Council, the Prosecutor is not obliged to open an investigation into the situation, including for the reason that s/he believes that there are substantial reasons that an investigation would not serve the interests of justice. Further, s/he may exercise proprio motu authority to open an investigation into crimes committed in any of the 121 States Parties or other States accepting the Court’s jurisdiction, subject to legal criteria set forth in the Rome Statute and judicial authorization.

On the other hand, there may be good reasons for OTP to have opened investigations only in Africa. First, many situations of concern simply do not fall within the ICC’s jurisdiction. According to its mandate set out in the Rome Statute (Statute), the ICC’s jurisdiction is limited to crimes committed after July 2002. Moreover, its subject matter jurisdiction is limited to war crimes, crimes against humanity, and genocide. In those situations, the ICC’s jurisdiction is further limited to crimes committed by a national of, or on the territory of, a State Party or a State which has declared its acceptance of jurisdiction by the Court, or where a situation has been referred by the Security Council. Even then, the Court may not exercise jurisdiction if credible national investigations or prosecutions are taking place. Second, investigations into African situations have been opened at the request or with the support of African states. Three of the African situations currently under investigation were self-referred; two have been referred by the Security Council. The DRC, Benin and Tanzania voted in favour of the UN Security Council referral of the Darfur situation to the ICC; South Africa, Gabon and Nigeria voted in favour of the UN Security Council referral of the Libya situation to the ICC. Ivory Coast accepted the jurisdiction of the ICC and undertook to cooperate with the ICC. Kenya’s President Kibaki and Prime Minister Odinga pledged support to the Prosecutor’s independent decision to open an investigation into crimes in Kenya proprio motu. Most recently, Mali referred to the ICC the crimes occurring on its own territory since January 2012 and this was supported by ECOWAS. Third, it could be argued that the situations under investigation or prosecution in Africa are distinguished by the gravity of the crimes perpetrated there—for example, 2.5 million victims in Darfur, 2 million in the DRC, and 1.3 million in Uganda—and an inability or unwillingness on the part of the State concerned to properly investigate and prosecute those cases.

Is the ICC targeting Africa inappropriately or are there sound reasons and justification for why all of the situations currently under investigation or prosecution happen to be in Africa? Answers to the question at hand may depend on the interpretation of relevant provisions of the Statute, views regarding the purpose and mandate of the ICC and a range of practical considerations.