Rethinking the North-South divide in international criminal justice: Reflections from an African viewpoint

Author: Francis Dusabe
Legal Researcher

‘Whatever you do for me but without me, you do against me’– Mahatma Gandhi, 1869-1948

More than ever before, Africa is at both sides of the coin; it is the subject of international criminal law because African states have steadfastly stood for the creation of the International Criminal Court and an object of international criminal law because of the unfortunate participation of Africans in atrocities that ravages their continent.

Unlike what many think, Africa has a lot to offer in the development of international criminal law, be it at domestic, regional and international level. Domestically, Africa leads other continents in the nationalisation of international criminal law either through domestication of the Rome Statute or the incorporation of main principles of international criminal law as enshrined in major conventions and treaties in national law.

Regionally, Africa gives a lesson to the world about the solidarity and commitment of states to confront and punish perpetrators of the most heinous crimes. This solidarity was exhibited when the African Union requested the State of Senegal to try Hissène Habré on its behalf.

Africa further showed its determination to confront international criminals by extending the jurisdiction of the African Court on Human and People’s rights, a judicial arm of the African Union, to cover all crimes of international concern, including economic crimes such as grand corruption and money laundering.

Despite, these positive developments, African states are at the loggerheads with the ICC, claiming that the ICC is only focusing on African leaders while ignoring atrocious crimes elsewhere; a claim which the leaders see as humiliation of the most contemptible kind. In response to the above allegations, the ICC advances that its actions in Africa are victim centered, the only hope for victims whose cry cannot be heard domestically. According to the ICC, their work in Africa is a preventive tool invested in the improvement of quality of African society now and in years to come.

The relationship between the ICC and African states continues to deteriorate because of the difficulty of explaining the ICC’s ‘African bias’. It remains a puzzle to explain the basis of the anger against the ICC and the relevance of accusations raised against it.

Moreover, the divide continues to expand as both sides lack measures to rectify this strained relationship. On the spot, the AU has rejected the ICC’S application for an observer status, and appears to be focused on building its own court, whose parallel existence with the ICC may create a situation of conflict of jurisdiction.

It is not easy to remedy such a situation, especially when both sides have not done enough to come to terms with it. Whatever the case may be, the solution to this problem should supersede each party’s egocentrism. Instead of complacently pointing fingers, both parties should put themselves in the shoes of the real victims by doing what is practically moral and responsive to the need of the victims: a cry for justice.

Second, there is need to sit together and learn from one another. If we truly believe that each party has got something to offer, then the developments observed in Africa are nothing other than a positive reinforcement of international criminal law in general, as they provide forum to ensure complementarity between the ICC and the national and regional courts.

Third, there is need to review internationally unshakable principles which no longer have practical relevance to the current African situation. while affirming the importance and relevance of international criminal law, there is need to contextualize its existing principles and align them with realities on the ground.

For instance, there is need to balance the application of International criminal law and the preservation of the African leaders’ integrity and self worth. This protection is necessary to ensure continuity of state affairs, especially the provision of public services to the people. This, however, does not give leaders the green light to kill or defraud their people, on assurance that their actions will go unpunished.

In brief, there is need for the ICC to consider Africa as a willing partner in the development of international criminal law and to reach a middle ground working relationship with African states. This involves tailoring its operations in Africa to the continent’s special circumstances without jeopardizing its image as the only chance through which those responsible for the world’s worst crimes may be held to account.

The ICC should devote its efforts in helping Africa do it itself and support the existing accountability mechanisms in Africa to mature. In doing so, it will reaffirm the real meaning of complementarity where all problems are resolved on a national or, at a lesser extent, to regional level, with ICC intervening only when invited on extreme or special cases.

Finally, regionalising the application of international criminal law in Africa will help Africa accommodate the idea that ICC’s actions in Africa are for Africa’s own good. It will enhance ownership by African leaders, because without their collaboration and participation, its good motives will fail in the time its needed most.

About the Author
Francis Dusabe is a legal researcher by profession and has previously served as a lawyer in the area of immigration law. He has conducted various research on economic crimes such as money laundering and asset recovery. He holds a Bachelor of Laws Degree from the National University of Rwanda and an LLM from the South African-German Center for Transitional Justice.