Why replace ICC with African Criminal Court?

By Denis Birungi

African leaders have recently adopted a strategy calling for a collective withdrawal from the International Criminal Court (ICC).

This strategy follows prior threats by various African countries to withdraw from the ICC.

The call is also preceded by previous breaches of obligations by countries such as South Africa and Uganda to co-operate with the court, as required under articles 86 and 87 of the Rome Statue by apprehending Omar Bashir, the President of Sudan.

On July 17, 1998, 120 States adopted the Rome Statute establishing the ICC. For the first time in human history, states decided to accept the jurisdiction of a permanent ICC for the prosecution of the perpetrators of the most serious crimes committed in their territories or by their nationals, with a view of ending impunity in the world and delivering justice to the victims of mass atrocities.

The ICC establishment is comprised of a comprehensive justice mechanism that includes protection of the rights of the suspects, rights of victims, protection of victims, helping victims rebuild their lives through compensation and reparations with funds drawn from a Trust Fund, especially where perpetrators are unable to compensate.  It is important to note that the jurisdiction of the ICC is complementary; it intervenes when there is inability or unwillingness on the part of states to prosecute perpetrators.

The proposal for replacing the ICC with an African criminal court leaves lingering questions: If most African countries cannot fully fund their own budgets, how will they commit to funding a regional court that require vast amount of resources to operate? If some African countries have deliberately refused to co-operate with the ICC, will they co-operate with the African criminal court to prosecute colleagues and heads of state found in breach given that some already undermine their national judiciaries? Will the African court better protect the African people compared to the ICC? Will replacement of the ICC by a regional court shield African leaders from the alleged harassment from the ICC?

These and other questions merit thorough scrutiny before the African Union decides to create a regional criminal court replacing the jurisdiction of the ICC.

An important consideration is that the replacement of the ICC with an African criminal court cannot fully shield African leaders from the alleged prosecution by the ICC, which is the main reason that triggered this proposal. Under article 13 (b) of the Rome Statute, the UN security council can refer a situation to the ICC regardless of whether the state is party to the ICC or not.

The ICC was largely formed to end impunity in the world and to deter commission of serious crimes. Typically crimes such as genocide and crimes against humanity are committed through a state policy willed or approved by the highest officials, including heads of states.

Giving heads of states immunity from prosecution does not achieve the objective of ending impunity in the region and defeats the very essence of international criminal law. Therefore, a court that is created for political expediency and provides immunity to some will lack legitimacy to effectively carry out its mandate. It will most likely be viewed both locally and by the international community as an obstruction of the ICC to protect African leaders from accountability.

Given that International tribunal don't have their own police, the co-operation of the international community is invaluable towards the pursuit of their objectives. This entails among other things the arrest and surrender of suspects to a court and gathering of evidence. The ICC, the Tribunal for Rwanda, Liberia, former Yugoslavia and Lebanon have all relied on international cooperation to effectively carry out their mandate. An African regional court with less international cooperation will find it difficult to meet its objectives.

Political will to uphold the mandate of an African court should also be considered. The principle of complementarity allows states to punish perpetrators of international crimes. The fact that African states already have the mandate to prosecute international crimes under the existing criminal system makes the creation of a regional criminal court purely a political move to escape accountability.

Complementarity principle provides for the intervention by the ICC only when states are unable or unwilling to prosecute. International crimes have what is called universal jurisdiction under international criminal law i.e. every state has jurisdiction to prosecute perpetrators of such crimes.

It can thus be argued that if African leaders had the willingness to end impunity on the continent, they would invoke the principle of universal jurisdiction to prosecute perpetrators of international crimes including the Sudanese President Omar Bashir. Since they have not, it's not unimaginable to think that the creation of regional criminal court is a political act, to further a desire to protect African leaders.

If the African Union leaves the ICC, the real losers in this political project are the African people.

They are the most vulnerable to suffer violations of international crimes because we are the ones who live in states with weaker judiciaries, we are the ones that are more prone to civil wars arising out of struggle for political power and we are the ones most prone to genocide due to ethnic tensions as a result of ethnic diversity in most African countries.

The writer is a fourth year law student