Cuttington School of Graduate and Professional Studies College of Global Affairs

Title: The International Criminal Court and Africa: Issues of Justice and Sovereignty

Author: Jusu Kamara


Abstract
The relationship between the International Criminal Court (ICC) and Africa has generated intense scholarly debate grounded in international criminal law, postcolonial theory, and global governance scholarship. Although the ICC was established as a universal and impartial institution to prosecute genocide, crimes against humanity, war crimes, and aggression, Africa has become the primary site of its investigations and prosecutions. Supporters contend that the Court delivers essential justice where domestic capacities remain weak, while critics argue that its practices undermine sovereignty, reflect structural inequalities in the global order, and reproduce neo-colonial patterns of intervention. This paper interrogates the historical foundations of African engagement with the ICC, evaluates justice and sovereignty claims through case studies of Kenya, Sudan, and the Democratic Republic of Congo (DRC), and analyzes the broader political economy of international criminal accountability. It concludes with reform proposals aimed at reconciling international justice with sovereign equality and African agency.
 
Introduction
The International Criminal Court (ICC), created through the Rome Statute in 1998, represents the first permanent international tribunal mandated to prosecute individuals for atrocity crimes (Cassese, 2013). While the Court was envisioned as a universal and impartial guardian of accountability, its operations have disproportionately concentrated on African situations spurring an extensive literature on law, politics, and postcolonial global governance (Mills, 2015; Ssenyonjo, 2017). African states were among the ICC’s strongest supporters during its formation, and Africa remains the most heavily represented region among State Parties (Schabas, 2011). Yet, as the Court’s prosecutorial decisions increasingly targeted African conflicts and political leaders, a counter-narrative emerged: that the ICC may undermine sovereignty, selectively administer justice, and reflect global power asymmetries (Mamdani, 2009; Murithi, 2017).

This paper addresses two central questions:

1. Does the ICC deliver meaningful justice to African victims?
2. Does the ICC undermine African sovereignty and reproduce unequal global power relations?
   By situating these questions within historical, legal, and political contexts, the paper offers a balanced assessment of the ICC’s impact on Africa.

Historical Background
Africa played a decisive role in the establishment of the ICC. Thirty-four African states ratified the Rome Statute more than any other region reflecting widespread continental support for ending impunity in contexts of weak institutions and recurring civil conflict (Du Plessis, 2016; Schabas, 2011).
However, optimism gradually eroded. Nearly all early ICC situations involved African states, whether through self-referrals (e.g., Uganda, DRC, CAR), UN Security Council referrals (e.g., Sudan, Libya), or proprio motu investigations (e.g., Kenya). As a result, African Union (AU) summits repeatedly criticized the ICC for perceived bias, leading to discussions of mass withdrawal and proposals for alternative continental justice mechanisms (Nkansah & Domfeh, 2018).
This shift from partnership to suspicion reflects broader debates about the legitimacy of international criminal law in postcolonial contexts (Branch, 2017).

Justice: The Case for the ICC in Africa
Supporters argue that the ICC fills critical justice gaps in countries where domestic judicial systems lack capacity, autonomy, or political will.

1. Accountability in weak or politicized legal systems
   In states emerging from civil war such as the DRC, CAR, and Uganda domestic institutions often cannot prosecute powerful armed actors. The ICC’s intervention in the DRC, culminating in the Lubanga conviction for conscripting child soldiers, established an unprecedented international precedent that reinforced norms against child recruitment (ICC, 2012; Drumbl, 2012).
2. Protection of cultural heritage
   In Prosecutor v. Al-Mahdi, the ICC secured the first conviction for the destruction of cultural heritage in Mali. Scholars argue that this case expanded the scope of international criminal accountability and recognized the cultural dimensions of atrocity crimes (Lostal, 2017).
3. Victim participation and reparations
   Unlike many domestic systems, the ICC incorporates formal mechanisms for victim participation and reparations, providing marginalized communities with a judicial voice (Murithi, 2017). Empirical studies demonstrate that, in Northern Uganda and Eastern DRC, victims often perceive the ICC as a last resort for justice (Clark, 2018).
4. Deterrence and norm diffusion
   Although difficult to measure, some scholars contend that the ICC has contributed to strengthening domestic laws and deterring the most severe abuses (Jo & Simmons, 2016).
   Overall, the ICC’s justice contributions are most evident where domestic institutions are fragile or co-opted by elites.

Sovereignty: The Case Against the ICC
Critics maintain that the ICC undermines sovereignty and reinforces inequities in global governance.

1. Selective justice and neo-colonial patterns
   The ICC’s caseload historically concentrated almost entirely in Africa has generated allegations of selective prosecution. Mamdani (2009) argues that the Court reflects a paternalistic model of humanitarian intervention in which Western powers define justice for Africa. Mills (2015) similarly contends that the ICC reproduces “hierarchical global governance structures” in which powerful states remain shielded from scrutiny.
2. Politicization through the UN Security Council
   The involvement of the UNSC; where permanent members such as the United States, Russia, and China are not ICC members, enables great powers to influence ICC processes without themselves being subject to its jurisdiction (Kiyani, 2019). Sudan’s Darfur referral exemplifies this dynamic, as non-member states effectively shaped judicial interventions in Africa (De Waal, 2014).
3. Prosecution of sitting heads of state
   The arrest warrant for Sudanese President Omar al-Bashir marked the first time an international court sought to prosecute a sitting head of state for genocide. The AU argued this would jeopardize peace negotiations and violate regional norms (Murithi, 2017). The controversy exposed tensions between international criminal accountability and regional political stability.
4. Dependency on state cooperation
   The failure of the Kenya cases marked by witness interference, non-cooperation, and political mobilization against the ICCrevealed the Court’s structural dependence on sovereign states, paradoxically undermining both justice and sovereignty (ICC, 2016; Mueller, 2016).
   These critiques show that the ICC operates within a deeply unequal international system where legal norms cannot be isolated from global power politics.

Case Studies

1. Kenya (2007–2008)
   The post-election violence resulted in over 1,100 deaths and massive displacement. After Kenya’s coalition government failed to establish a credible tribunal, the ICC Prosecutor invoked proprio motu powers (Mueller, 2016).

• Cases collapsed due to witness interference, political intimidation, and state non-cooperation (ICC, 2016).
• Scholars argue that the collapse highlighted the ICC’s limited enforcement power and the ability of political elites to resist accountability (Mueller, 2016).
• The Kenya experience intensified African political resistance to the ICC (Ssenyonjo, 2017).

1. Sudan (Darfur)
   The UNSC referral and subsequent indictment of al-Bashir triggered diplomatic crises across Africa.

• Critics argue the indictment undermined peace efforts and illustrated Western political influence over the ICC (De Waal, 2014).
• Supporters counter that genocide demanded international action given Sudan’s failure to prosecute atrocities.

1. Democratic Republic of Congo (DRC)
   The DRC has produced some of the ICC’s most significant convictions; Lubanga, Katanga, Ntaganda.

• These cases demonstrate the ICC’s ability to prosecute warlords, but also highlight the Court’s reliance on self-referrals and limited reach against state officials (Branch, 2017).
  Together, the case studies show both the necessity and constraints of international criminal accountability in Africa.

Complementarity and the Justice–Sovereignty Balance
The ICC’s founding principle of complementarity stipulates that the Court acts only when states are unable or unwilling to prosecute crimes (Rome Statute, 1998, Art. 17). Scholars argue that complementarity offers a conceptual bridge between sovereignty and justice (Burke-White, 2008).
Complementarity has prompted several African countries to reform domestic legal systems:

• Uganda’s International Crimes Division
• CAR’s hybrid Special Criminal Court
• South Africa’s domestic implementation of international crimes law (Nkansah & Domfeh, 2018)
  However, political incentives often determine whether complementarity works in practice.

The African Union and the ICC
The AU’s engagement with the ICC reflects both cooperation and resistance.
Key AU Positions

• Opposition to prosecutions of sitting heads of state
• Calls for a mass withdrawal strategy (never implemented)
• Expansion of the African Court of Justice and Human Rights with immunity for sitting officials (Murithi, 2017)
  These developments signal Africa’s desire to assert juridical autonomy and normative agency in shaping international justice.
   
  Reform Options
  Scholars propose several reforms to strengthen the ICC–Africa relationship:

1. Diversify prosecutorial focus beyond Africa (Mills, 2015).
2. Institutionalize AU–ICC dialogue mechanisms (Murithi, 2017).
3. Increase prosecutorial transparency in case selection.
4. Strengthen domestic judicial capacity to reduce dependence on the ICC (Burke-White, 2008).
5. Reform UNSC referral mechanisms to insulate the ICC from great-power politics (Kiyani, 2019).
6. Promote hybrid courts tailored to African contexts.

Conclusion
The ICC’s relationship with Africa is characterized by tension between the pursuit of universal justice and the protection of sovereignty. The Court has delivered meaningful accountability in contexts where domestic institutions are weak, yet it also operates within a global political order marked by structural inequalities and selective enforcement. The challenge is not whether Africa needs international justice, but how such justice can be delivered without reproducing hierarchies or eroding sovereignty. A reformed ICC combined with stronger African legal institutions offers the most viable path toward equitable and effective international criminal accountability.
 
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