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Research Report

A Court in Crisis?: The ICC IN Africa, and Beyond

Valérie Arnould
Copyright Date: May. 1, 2017
Published by: Egmont Institute
Pages: 22
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Table of Contents

  1. (pp. 2-3)

    Confronted by challenges in mobilising state cooperation, gaining custody of accused, and affirming itself as an effective international judicial body, the International Criminal Court (ICC) has faced an uphill struggle in asserting its authority. When Burundi, Gambia and South Africa announced their intent to withdraw from the ICC ahead of the 15th Assembly of State Parties of the ICC in November 2016, the sense of crisis surrounding the Court was further heightened, despite recent achievements such as the trial of Ahmad al-Mahdi over the destruction of cultural sites in northern Mali, which resulted in a guilty plea, and the issuance...

  2. (pp. 4-7)

    The decision by Burundi, South Africa, and Gambia to withdraw from the ICC followson the heels of long-standing tensions between the Court, individual African states and the AU.⁴ These first came to the fore following the Court’s indictment of Sudanese President Omar al-Bashir in 2009, which saw the AU calling on the United Nations Security Council (UNSC) to defer the Sudan investigation and asking AU members not to cooperate with the Court for the execution of the arrest warrant against al-Bashir. Discontent with the Court further heightened with the indictments in 2011 of senior Kenyan officials over the 2007-2008 electoral...

  3. (pp. 8-9)

    The backlash against the Court is not merely an issue of politics but also more broadly reflects tensions around the hierarchy of norms and values in the international system, as well as persistent frictions between statist and cosmopolitan views on the place of international criminal law in the world order. While much has been made of the universalistic aspirations of the ICC project, and many ICC advocates take it as a given that the values represented by the Rome Statute trump other values and norms, the conflict between the AU and ICC highlights the fact that no single normative order...

  4. (pp. 10-11)

    State challenges to the legitimacy and authority of the ICC have been present since its creation and are likely to be a permanent fixture. Given that ICC investigations can have more far-reaching consequences than those of other international courts – to the extent that the ICC poses a personal threat to high-level and powerful civilian and military officials – it seems reasonable to expect that the likelihood of a backlash is also higher than at other international courts. It is also unlikely that the Court will manage to achieve universal membership in the near future (at present 124 countries are...

  5. (pp. 12-14)

    The adoption by powerful states of active measures to keep themselves out of the ICC’s reach while (ab)using their position within the UNSC to align the Court’s activities with their political interests has contributed significantly to perceptions that the ICC is biased and politicised. First, there has been a glaring inconsistency in the willingness of the UNSC to refer certain instances of mass human rights violations to the ICC (Sudan, Libya) but not others where similar grave atrocities have been committed (Syria, Israel). This practice has been driven by the political interests of the five permanent members of the UNSC...

  6. (pp. 15-18)

    The current backlash against the ICC and accusations that it acts as an instrument of neo-colonialism is also fed by its growing monopolisation of justice discourses and practices. The ICC, and international criminal law more broadly, have become powerful frames around which justice issues are articulated; they are increasingly advocated as the dominant norm for dealing with armed conflicts and legacies of mass atrocities, particularly in Africa.20 What has emerged is a powerful discourse portraying the ICC as sitting at the top of a ‘justice pyramid’ – that is, it is put forward as the most appropriate response to mass...

  7. (pp. 19-19)

    The ICC has been at the centre of heated contestations between proponents who advance the Court as a beacon of justice against the forces of impunity and violence, and those who accuse the Court of being a politicised, neo-colonial and biased institution. While both of these positions are overly simplistic and unfair representations of the Court, the confrontation seemed to reach its apogee with the announcements in October 2016 by Burundi, South Africa, and Gambia of their intent to withdraw from the Court. In a way, the Court has always been an ‘institution in crisis’. Since its inception, it has...