If an African walkout does occur, the world’s least developed continent is far from having its own criminal court alternative to replace the ICC. Ratification by AU members for existing continental judicial structures has proceeded at a snail’s pace and there is a big question over funding.
“We don’t have a credible, regional alternative,” said Nicole Fritz, director of the Southern Africa Litigation Centre, a non-profit group which seeks to support human rights in Africa through court processes. “The political will is not there.”
The ICC Kenya cases brought against democratically elected leaders are a key test of the credibility of the decade-old court; its conviction record and methods are under fire.
Based on ideas developed at the Nuremberg and Tokyo trials after World War II, moves to establish the ICC accelerated in the 1990s, when atrocities in Yugoslavia and Rwanda saw ad hoc tribunals set up at The Hague and Arusha, Tanzania respectively.
In 1998, over 100 governments adopted the UN’s Rome Statute. The ICC gained legal powers on ratification of the statute in 2002 and judges were elected the following year.
Experts say the criticism caricaturing the ICC as delivering “white man’s justice” for Africa rings hollow, as the Rome Statute broadly requires the acquiescence of signatory parties to the prosecutions. Kenya, for example, had itself referred the case of its 2007-2008 post-election violence to the court.
“In Kenya, it was in the absence of the domestic initiative where the ICC stepped in,” Fritz said.
However, when the UN Security Council requested the ICC to investigate former Libyan leader Muammar Gaddafi’s crackdown against opponents in 2011, this was viewed suspiciously by some African leaders who saw it as Western powers misusing the court.
ICC chief prosecutor Fatou Bensouda rejects the accusations of anti-African bias, saying cases are prosecuted on merit and that the court is a big deterrent. Bensouda herself is from Gambia and five of the 21 serving judges, including the first vice-president, are also Africans. Nine of them are Europeans.
Fritz said the Hague court had not “done itself any favors by filling its dockets exclusively with African cases.”
All 18 cases so far before the ICC are against Africans, in eight countries. Most were either initiated or supported by the governments of those states.
The ICC has pursued cases against Sudanese President Omar Hassan al-Bashir, who defies a court indictment, as well as rebel and militia chiefs in the Democratic Republic of the Congo and Darfur and former Ivory Coast president Laurent Gbagbo. Its sole conviction to date is of Congolese warlord Thomas Lubanga.
The court has opened investigations into issues involving other countries, including Afghanistan, Georgia, Colombia, Honduras and South Korea, but these have not yet led to cases.
Fueling African resentment is the fact that major global powers like the US, China and Russia have shunned ICC membership. Nations like Israel, Pakistan, India and North Korea are also not among the 122 signatories.
The failure of ICC prosecutors to investigate the US, Britain or Israel over alleged crimes by troops in Iraq, Afghanistan and the Palestinian territories has increased the African feeling of victimization.