What impact do International Criminal Court (ICC) interventions have on community-level reconciliation processes? How can the capacity of African organisations be enhanced to promote community-level reconciliation? These were among the questions addressed by this regional consultation involving seven African countries. The ICC is a court of last resort and ideally national criminal jurisdiction should take precedence. In addition, the sequencing of peace and justice should be assessed and implemented on a case by case basis.
The ICC will only exercise jurisdiction where a state is unable or unwilling to genuinely investigate or prosecute. The ICC mainly intervenes in war-affected or post-authoritarian countries, where the political situation is often fragile.
In situations where reconciliation efforts are unfolding, ICC intervention can either complement or undermine the process:
- There are tensions between peace initiatives in the DRC, Uganda, Sudan and Kenya and the investigative and prosecutorial interventions of the ICC in these countries. In the DRC, for example, there is a sense that the ICC is being used politically to pursue the government’s opponents.
- There is a need for cooperation among states for the effective functioning of the ICC. If heads of state openly defy the ICC then its role in implementing international criminal justice in Africa will be eroded.
- There is a perception in African countries that the ICC is insensitive to the needs of victims, despite the elaboration of international criminal jurisprudence to address the rights of victims to reparations and participation. For example, in Uganda the issuing of ICC arrest warrants for five leading LRA commanders was seen by some as disrupting an amnesty and as discouraging LRA combatants’ demobilisation and reintegration – it was seen as impeding peace.
Even though the ICC does not have a mandate to pursue peace and reconciliation, it should consider these initiatives as it engages in countries affected by armed conflict. Other policy recommendations include the following:
- There is a role for traditional justice mechanisms within the wider transitional justice architecture that countries adopt for reconciliation.
- The ICC and the African Union should use a Memorandum of Understanding to establish a working relationship between the two institutions.
- Resources should be committed to building the capacity of states to use national criminal jurisdictions to investigate and prosecute crimes which fall under the jurisdiction of the ICC.
- The ICC, governments and civil society should collaborate on promoting awareness-raising about the role of the ICC.
- The ICC should adopt a sensitive approach to the effects of legal proceedings on victims, particularly in addressing gender-based violence.
- African civil society organisations and academic institutions should undertake research on issues pertaining to ICC interventions, with support from the ICC and governments.
