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The African Criminal Court

The relation between law and politics is a difficult question for every international criminal tribunal; for the proposed African Criminal Court (ACC), it is already subject to heated debate. But it is also a crucial question, for whether the proposed new African court will be legitimate and effective will in large part depend upon whether a viable relationship between law and politics can be negotiated in its establishment and future operation. In this chapter, I will argue that the dominant positions in the debate over the politics of the proposed ACC, while presenting a broad set of possibilities for the court, tend to sidestep what may be the most important aspect of the question: not whether politics will shape the proposed court, but, because politics will inevitably shape its operation, what political agenda and orientation should determine the court’s functioning. Only if the proposed ACC is moulded by progressive, democratic political agency – a possibility enabled by the court’s location within the African Union (AU) as well as certain provisions of the Malabo Protocol – will it be able to contribute to an emancipatory politics. To realize this possibility will require effectively addressing the dilemmas revealed by interventions of the other major international criminal tribunal involved in Africa – the International Criminal Court (ICC) – which have tended to entrench the violence of powerful states, both African and Western, and to undermine possibilities for peace and justice. In charting this course for the proposed ACC, the dominant understanding of the relation between politics and law needs to be re-thought and the foundation of the political vision guiding the ACC needs to be critically examined. Otherwise, the proposed African court may be subject to counterproductive instrumentalization by states and may end up replicating the problems seen with the ICC. This chapter will locate the emancipatory potential of the ACC in specific elements of the Malabo Protocol, in particular in its expanded slate of international crimes and the expanded set of persons and organizations over