Africa, the Court, and the Council
Elgar Companion to the International Criminal Court (deGuzman & Oosterveld eds., 2019, Forthcoming)
24 Pages Posted: 30 Aug 2018 Last revised: 17 Apr 2019
Date Written: August 20, 2018
One of the defining narratives of the Court’s first 15 years of operation has been that it has an anti-Africa bias. This view, initially promulgated by individuals whom the Court sought to prosecute, moved into the mainstream and is now advanced through Africa’s regional body, the African Union. On the most strident telling of this narrative, the Court acts with animus against Africans, while purposefully shielding the most powerful States in the international system. (The ‘anti-Africa court’ narrative.) The counter-narrative to this, advanced by Court officials and their most ardent supporters, emphasizes that African countries were the earliest advocates of the Court; far from having an anti-Africa bias, the ICC is a court by and for Africa. This narrative is often linked to the idea that any claim of bias is presumptively untrue because decisions at the Court are made solely based on law. As the current ICC Prosecutor, Fatou Bensouda, has put it: ‘[T]he Prosecutor does not take into account any political considerations. These, we continue to say, belong to other institutions…. [The Office of the Prosecutor] has to scrupulously respect legal limits.’ On this view, law-like activity is a-political, therefore any charge of bias against a particular State or region is necessarily false. (The ‘a-political court’ narrative). There is, however, another perspective, which rejects the conflation of the terms legal and a-political, stressing instead the observation of Sarah Nouwen and Wouter Werner that law itself can be, and often is, both political and non-political. With this understanding in place, it becomes possible to move beyond a blanket denial of the idea that the Court could ever act politically, and engage substantively with the arguments of those who accuse it of doing so. This chapter looks at these issues through the relationship between the ICC, the U.N. Security Council, and the African Union.
Keywords: ICC, criminal law, Africa, politics, law
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