Reflections on Africa and International Criminal Law
A chapter in The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application, International Nuremberg Principles Academy (2016)
15 Pages Posted: 9 Mar 2017
Date Written: March 8, 2017
The relationship between African states and the emerging international criminal law regime appears to be at a crossroads. The African Union has repeatedly criticized the International Criminal Court (ICC) since the indictment of the Sudanese head of state, Omar al Bashir. The indictments of Uhuru Kenyatta and William Ruto, who post-indictment became respectively Kenya’s President and Deputy President, heightened this tension. Threats of mass withdrawals of African states from the Rome Treaty initially looked like standard political bluster and grandstanding from isolated individuals, but now appear to have gained some support within the region. There are credible indications that South Africa, the country often viewed as the continent’s leader in the areas of international human rights and justice, is seriously debating whether to withdraw from the Rome Treaty.
This article argues for a more nuanced approach to the conflict between the international criminal legal system and Africa. First, it argues that the search for an African conception of justice overly simplifies the sophisticated views of justice found in Africa and distracts from a more nuanced approach to understanding the conflict between Africa and the international criminal legal system. Second, it highlights the socio-political and structural dynamics that create a framework of disempowerment and injustice that helps to better understand this conflict. Third, it discusses the issue of head of state immunity as an example of this conflict. Fourth, and finally, it argues that much of the international response to African proposals for a regional international criminal court have assumed that such proposals are primarily concerned with protecting entrenched governments and heads of state. While this article does not claim that such interests are not at play, it argues that such a focus has overshadowed other significant elements of these African proposals – elements that are better explained by the current political and power dynamics of the international system.
Keywords: Africa, International criminal law, African Union, International Criminal Court, immunity, Malabo Protocol
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