Is the International Criminal Court (ICC) pursuing too aggressive and disruptive an agenda in Africa, without proper priorities? This series of papers, published by the Royal African Society, suggests that the ICC has made a promising beginning in many respects, but that its work in Africa highlights some significant weakness. According to one charge, the ICC’s pursuit of justice jeopardises fragile peace deals, risking the prolongation of conflict. The papers focus on the ICC’s response to several African conflicts, particularly in Uganda, Sudan and the Democratic Republic of Congo. Much depends on the Court’s capacity to absorb early lessons and to demonstrate a clear role – both in its own right and in relation to other judicial and non-judicial initiatives.
The fact that much of the ICC’s work has taken place in Africa highlights some of the controversial questions facing the Court, raising the question of whether international justice is evenly and fairly applied around the world. The Court’s operations have expanded and deepened during this same period – new investigations, arrest warrants and preparations for trial all testify to this. Current operations are translating the ICC’s ideals into reality and setting vital precedents for the Court’s future activities.
While the essays in this collection make very distinct assessments of the ICC’s effectiveness, a shared critical spirit, attuned to specific operations and results, characterises them all. Some of the salient findings from different articles are presented below:
- Much of the controversy surrounding the ICC has resulted from unclear communication about its aims and methods. Personnel and supporters of the Court have tended either to overstate its potential or present overly modest visions.
- ICC prosecution represents one of the few credible threats to human rights violators in countries like Sudan, and can continue to be so if it secures convictions.
- In the conflict between the Ugandan government and the Lord’s Resistance Army, ICC arrest warrants seems to have played a role in bringing both sides together for peace negotiations.
- ICC pressure on Sudan to hand over two alleged criminals has had no discernible impact, largely because relations between Khartoum and major Western governments have collapsed.
- The Court’s approach to selecting cases, although following the Rome Statute’s definition of complementarity, has not followed a spirit of only acting when states do not or cannot act. One result has been an undermining of the Court’s legitimacy in the DRC and Uganda.
- In the DRC, where massive rights violations have occurred, a few arrests by the ICC of senior personnel carry mostly symbolic value.
Drawing on these findings, the authors present a number of implications and recommendations regarding the ICC’s future development:
- In order to fulfill its mandate and answer its critics, the ICC needs a clearer and more consistent process for selecting cases, balancing legal and political concerns.
- Proponents of regionally- and tribally-specific traditional justice, in place of the ICC, have not proved their case in Northern Uganda. Such efforts should be put aside or employed with great care in very particular situations.
- ICC success will depend on whether it can encourage prosecutions at a national level, pursuing a philosophy of “positive complementarity”.
- Although the formal guidelines are promising, the ICC needs to do more to encourage and ensure victim participation in its trials. Such an effort would include legal aid in the application phase, support of intermediaries and the simplifying and streamlining of the legal process.
