The ICC or the AU: Who can ensure justice for African victims?

Désiré Assogbavi, human rights lawyer
In this commentary, Togolese human rights lawyer and political analyst Désiré Assogbavi unpacks common myths around the International Criminal Court (ICC) and African Union debate, sharing why he supports ongoing ICC investigations in Africa.



The International Criminal Court: The basics

The creation of the International Criminal Court is an important step in mankind’s efforts to make our world more just. The Court was established by an international law treaty “The Rome Statute” adopted in 1998 and entered into force in 2002. The ICC covers only the most serious crimes, including genocide, war crimes, crimes against humanity and the crime of aggression, and this, only when States are unable or unwilling to judge these crimes themselves. The Court may be seized by a State Party, the Prosecutor and the United Nations Security Council. The Statute applies equally to all, without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under the Rome Statute: Article 27.


The place of Africa in the ICC



Is the ICC targeting Africa or African leaders only?




It is therefore obvious from this observation that African leaders went to the ICC first (mostly against their opponents) and not the other way round but why? Why are they against the ICC today?


Did African leaders understand the ICC differently?

In 2004, President Museveni seized the ICC against his opponent Joseph Kony and the Lord’s Resistance Army. But during the investigations there were indications that Uganda’s National Army may have also committed crimes under the jurisdiction of the ICC, and therefore may be liable to be tried by the ICC with an eventual involvement of President Museveni himself. ‘No way!!!’ said President Museveni, the ICC then became his enemy.

In 2003, even before formally ratifying the Rome Statute, Côte d’Ivoire government of Laurent Gbagbo had officially recognized the jurisdiction of the ICC Laurent Gbabo was likely targeting his political enemies but the power has changed camp so far. It was therefore President Allassane Ouatarra who delivered Gbagbo to the ICC on the basis of the same special recognition signed by Gbagbo himself.





But why does not the ICC take care of the others?


Why does the ICC delaying to take concrete actions in favour of Iraqi, Palestinian, Syrian, and Afghani victims? (Even if some of those countries are currently under preliminary investigation). The answers to this question are unfortunately not as “just” as one would like: Because these countries are not party to the Rome Statute, or because one or several powerful countries endowed with veto power in the UN Security Council would certainly oppose it for unfair reasons that we all know. In fact, only 2 of the 5 permanent members of the UN Security Council are parties to the ICC: France and the United Kingdom.


These questions and many others obviously weaken the credibility of the ICC but who is responsible for it and who must correct it?


A collective withdrawal from the ICC by African countries?



Is not the ICC a common heritage that should help us to create a more just world? All nations, including African nations and their stakeholders, must work together to improve the ICC. Abandoning it or leaving it should not be an option and I am pleased that a number of African countries have entered reservations on the “mass withdrawal strategy” during the AU Summit discussions. I have just learned that Gambia, which had previously announced its withdrawal from the ICC, has changed its mind. The government has just informed the United Nations that Gambia remains a State Party to the Rome Statute. Good news!

A mass withdrawal of African countries from the ICC would be a shame, a terrible contempt for African victims and an encouragement for criminals and their supporters, I know it will not happen.


The African Court of Human and Peoples’ Rights: An African solution?

The slogan “African Solutions for African Problems” is beautiful but it will only convince me under two conditions: 1) the bill of the African solution must also be paid by Africa (I recall that Africa did not pay the bill of Hissène Habré trial) and 2) universal human rights and justice standards must be applied because human rights and  justice principles have no nationality or regional identity. They are simply and unequivocally universal.



Union africaine et CPI: chronique d'un divorce à petits pas

L’Afrique veut-elle vraiment en finir avec la Cour pénale internationale ?

Your comments are welcome on the blog or by email:

Désiré Assogbavi is the founding Head of the Oxfam International Liaison Office to the African Union (AU) in Addis Ababa, Ethiopia and the Resident Representative of Oxfam International Confederation to the AU since 2009. Among his prior experience, Assogbavi served in Oxfam Great Britain for four years as Pan-Africa Senior Policy Analyst (2006–2009) and prior to that coordinated the Africa Team of the Coalition for the International Criminal Court in New York from 2001 to 2006. He has published and presented articles and papers on various issues, including international justice, the AU, and African politics.