By Odhiambo & Zwart
Right from the start African states have been very supportive of establishing the ICC and, consequently, they were among the first to ratify the Rome Statute. The African continent is wrought with conflict and aggression.
Few will doubt that by tackling impunity the ICC can be a very effective partner in attempts to stem and prevent the violence.
The support given by African states to the ICC is beneficial to this institution as well. Since several key players at the world stage like the US, the People’s Republic of China and the Russian Federation have not, as yet, signed up to the Rome Statute, the legitimacy of the ICC depends to a significant degree on African states who thus constitute a vital asset to the ICC.
Therefore, the African cases assist in justifying the existence of the ICC, and losing this constituency in whole or in part could seriously damage the institution. Consequently, both African states and the ICC have much to gain from maintaining this mutually beneficial relationship. Africa needs ICC and the ICC needs Africa.
The tensions that have emerged between African states gathered in the AU and the ICC are undoubtedly related in part to a lack of knowledge and understanding of how the ICC works. Some politicians play into this deficiency by misrepresenting what the ICC stands for and putting its efforts into bad light.
Statements to the effect that the ICC was unduly targeting African states have now escalated to claims that the ICC is ‘race-hunting’.
The ICC has taken the laudable initiative to organise training sessions on the continent in an attempt to fill this knowledge gap. However, its insistence on a politics-law dichotomy in interpreting its mandate does not augur well for a constructive engagement with the AU.
Any dialogue between AU and ICC should include transfer of knowledge, not least to provide African participants with ammunition they can use to combat prejudices at home.
However, underlying the current tensions are structural fault lines which go much deeper than ignorance and politics. Many Africans have a strong sense of African justice which is based on community bonds and the need to preserve and restore harmony and peace.
Northern justice
Despite the fact that the Rome Statute clearly bears the signs of the retributive justice model favoured in the North, it also contains traces of the Southern model in some places and leaves room for this model in others. The important position of the victims is a sign of the former, complimentarity exemplifies the latter.
In the eyes of many Africans, since it opened for business the ICC and the Prosecutor, as well as INGOs and academic commentators have been unduly emphasising elements of Northern justice. They would like to see more weight being given to the African sense of justice in the practice of the OTP and ICC where the Rome Statute allows.
Rather than regarding African justice as something that stands in the way of the effective exercise of the jurisdiction of the ICC and which needs to bereplaced by Northern concepts, those Africans would like to see the ICC to rely on it as much as possible. This will ensure the embeddedness and legitimacy of the ICC in Africa.
In light of this, and at the invitation of a number of key actors in Africa, Prof Laurence Juma of Rhodes University in South Africa and Prof Tom Zwart, director of the Netherlands School of Human Rights Research, with the institutional and academic support of their two institutions have initiated the so-called ‘AU-ICC’ initiative to bring both parties together. Both institutions believe that debate on the future of criminal justice in Africa should be open and inclusive, while giving as much room as possible to African voices.
They see it as their role to encourage both sides to engage in a dialogue to bring about some concrete steps. The ‘AU-ICC’ initiative believes that the ICC and its prosecutor can, and should do more, to serve the African sense of justice while conducting their activities.
This means, amongst other steps, that the ICC should yield more often to national procedures under the complementarity requirement; should build in reasonable time-outs to give genuine peace negotiations a chance; give more weight to the cultural dimension; invest more in efforts to reach out to local communities and to communicate with the leaders on the ground; and support rather than oppose the initiative to set up an African Criminal Court to complement ICC.
These steps can be taken without amendment of the Rome Statute and will amount to adjustment of the current practice of the OTP and the ICC as well as the attitude and position of the AU and its member states.
It is our firm belief that if the ICC and the OTP will commit themselves to such an approach, the African States will reciprocate by working more closely and productively with the institutions in the Hague.
Towards this end, and Counting on the support of African members of the ICC, the ‘AU-ICC’ initiative is in the process of organising a side event during the Assembly of State Parties to the ICC meeting in New York in November 2013, during which event it intends to present proposals drafted by leading African international criminal law scholars in collaboration with a few experts on African justice from the North on how the widening gap between the AU and the ICC can be bridged.
Tom Zwart is professor of human rights, Utrecht University and Director of the Netherlands School of Human Rights research. Michael Odhiambo is post doctoral research fellow at the Netherlands School of Human Rights Research.
