Author : Corneille Kahumba
In the context of the Cold war, the communist bloc was openly blamed for the delay in establishing the ideal of universal justice, which the ICC would represent. That is of course not accurate. The United States spared no effort to hamper the process of establishing the ICC. Even today, although never being a state party and having moreover withdrawn its signature to the Rome Statute, the United States openly taunts international justice and therefore calls into question the claim of the ICC to embody the universal values of humanism. Ultimately the ICC becomes this famous instrument of political bargaining. The creation of a permanent jurisdiction had indeed aroused general enthusiasm in that it was responsible for prosecuting the most serious crimes including war crimes, crimes against humanity; genocide and only later crimes of aggression. In this, the ICC had the ambition to become the Shamer-in-chief to single out individuals, often in a position of strength, who are illustrated in the violation of human rights.
Africa was the continent that then allowed the Rome Statute to come into force; thus inscribing its name in the efforts of mankind for a peaceful world. Without Africa, the ICC would never have seen the light of day. However, we can wonder about the real motivations of Africans who overwhelmingly subscribed to the humanist values embodied by the ICC. We can explain this fact in two ways. First, Africa is a continent at the center of many armed conflicts; what appears to be the tip of the iceberg of engagement by African states. But in reality, African states mistakenly believed that the ICC was going to relieve them of their responsibility to deliver justice in order to ensure lasting peace on the continent. At least in part, that explains the love they showed for the ICC. Second, the threats of economic sanctions from European countries and the United States in particular explain why African States were led to participate in the creation of the ICC without necessarily sharing its philosophy or its values.
This paper sheds light on the conflicting relationship between Africa and the ICC. Our hypothesis is that the conflict situation between Africa and the ICC goes back to the origin at the creation of the ICC. And the Security Council has a big responsibility in the resolution of this conflict in order to avoid a very great politicization of the ICC especially at this critical time in light of the USA attacks against its action.
The contribution of Africa to the ICC
With more than 120 States Parties, out of a total of 193 States in the world, but excluding more than 70 percent of the world population; Africa is the [best represented] region in the ICC with more than 30 members. African states then allowed the entry into force of the Rome Statute, and Senegal became de first African country to ratify the Rome Statute, considered as the greatest victory after the end of the Second World War. South Africa took over by becoming the first country to pass national legislation to integrate the Rome Statute into its own justice system. It goes without saying that the first review conference of the Rome Statute was hosted in Africa 2010. In addition, Uganda was the first to have referred to the ICC a situation-case.
It is important to note that all these countries are obviously African countries. During the negotiations for its establishment, the International Criminal Court represented a hope and also aroused real enthusiasm from the entire international community. At the plenipotentiary conference, Mr. FIYA MALUWA, then OAU legal adviser, stated for example that:
[Africa had a particular interest in the establishment of the ICC because its people endured centuries of human rights violations, such as slavery, colonization and other wars of various kinds which are rife despite decolonization].
It is also paramount to remember that these declarations of good intentions come in a post genocide context in Rwanda, where the new ICC appeared to many to be better equipped in terms repression of international crimes. African states have, willy-nilly, been led to participate actively in the negotiations in Rome which of course led to the creation of the ICC. This all-out enthusiasm was justified, as far as Africa was concerned, by the fact that many African States saw in the new ICC a legal institution capable of giving their national systems some credibility and consequently relieving them from their responsibility to put an end to endemic conflicts on the continent. The ICC was becoming in the understanding of these states a court of first instance, which was not its ambition. According to Ms. BENSOUDA, current ICC Prosecutor, the creation of the ICC represented the efforts of the international community towards long-term conflicts resolution.
In July 2000, the AU then OAU called on its member states to ratify the Rome Statute and thus participate in common peace efforts. And two years later, ten (10) African countries, including the DRC, had ratified the Rome Statute, thus allowing its entry into force. In the whole history of international agreements, this was an unprecedented fact to which the literature has paid little attention. However, on the nature of these countries having ratified the Rome Statute, it should be noted that most of them are [… Low rule-of-law countries with recent experiences of civil war…]. This fact was surprising. Therefore, it is common ground that all these countries do not stand out in the defense of human rights; quite the contrary. We can therefore wonder about their motivations. Perhaps these states thought the ICC was going to replace national systems. We will never know. But we must admit that the attitude of these states was surprising to say the least. These states believe that the stability of their political regimes relies inexorably on a strong executive by sacrificing the judiciary; all the same, they joined in numbers an institution which had the ambition to be the guarantor of human rights par excellence. What is more, of the thirty or so situations before the ICC to date, almost all are African. The balance is tilted towards Africa in part due to the large number of African ratifications. It follows that with the exception of Sudan, Libya, Kenya and partially Cote d'Ivoire; all the situations have been deferred by the African States themselves using the right granted to them in the Rome Statute.
As long as we put into perspective the fact that those states which have adhered overwhelmingly to the Rome Statute do not overwhelmingly share the values of justice, what would justify top notch support for the ICC?
Indeed, in response to early pressure by the US, a number of leading states on the continent [of Africa] expressed steadfast commitment to the ICC and did so by a keen understanding of, and recognition for, the international treaty obligations which flow from ratification from the Rome Statute.
The fact that certain foreign powers, including the United States and some European countries, have resorted to threats of economic sanctions in particular, provides the explanation for the attitude of African states which have adhered to the values of universal justice without really believing in it. This fact could also, at least in part, explain why Africans' love of the ICC has rapidly evolved from enthusiasm to outright hatred. Africa today threatens the very existence of the ICC it called into being twenty (20) years ago. We see that African states have been forced to "participate" in the creation of the ICC. Just as Africa has been called to come under the influence of an institution whose ambitions it does not fully share, so the massive withdrawals of Africans threaten the survival of the ICC as a whole.
African states and the ICC: a Russian mountains relationship
In more than 20 years, the honeymoon between Africa and the ICC will have been short-lived. At its inception, the African Union demanded upon its member states to be able to support the creation of the new ICC. This support was translated in concrete terms by mass adhesions. The most concrete expression of this love was to refer cases to the ICC. Africa then became this great supplier of criminals to the ICC. These African referrals were at that time a significant political gain for these states. President KABILA, for example, welcome the level of cooperation that his country, the DRC, had with the ICC. On the other hand, this hope quickly gave way to disillusion. Africa is mobilizing the most severe criticism of the ICC today. And like other countries that have always rightly or wrongly been suspicious of the ICC, such as the USA, African opposition to the ICC is relatively recent. Since 2009, we have been in the midst of a period of disenchantment crystallized by the opening of proceedings against African heads of state.
a. African states referrals to the ICC
The ICC is generally referred to in three ways. Under article 13 of the Rome Statute, the ICC can exercise jurisdiction if a) a state party refers a situation to the prosecutor; b) if a situation is referred to the Prosecutor by the Security Council; and finally c) if the Prosecutor is mutu proprio seized of a situation.
Initially these modalities were designed with respect to the sovereignty of each State to bind itself by its own will by international obligations. In principle, the right to bring a situation However, as we will see later, the referral to the ICC by the Security Council through a resolution under Chapter VII, moreover adopted by States for the most part not parties to the Rome Statute; endangers the sovereignty of states not party to the Rome Statute because they may very well be placed in a situation similar to that of state parties. We will see, for example, that in the context of the Al-Bashir affair, Sudan was obliged to cooperate with the court as a State Party would. And it set a very unfortunate precedent.
In addition, referral by the Prosecutor is a well-known practice in countries with a Romano Germanic tradition. With regard to the ICC, this modality is essential because, on the one hand, it allows to bypass the lack of will of the State party and on the other hand to bypass a possible blockage of the Security Council. The case of Syria, which has been the scene of unspeakable atrocities for more than a decade now, is a good illustration. And rightly, African countries have taken advantage of their right under the Rome Statute by activating Article 14. Indeed, a year after the entry into force of the Rome Statute, Uganda transferred to the Prosecutor the situation case concerning the commission of crimes by the Lord's Resistance Army in the North of the country. Through this act, and on the strength of his reputation as a "democrat" of the 1990s, President MUSEVENI thus preached by example the universal values of justice. However, this act of Uganda can be analyzed in different ways. In our view, he had misused the principle of complementarity on which the Ugandan President clearly seemed to be based upon. Indeed, Uganda had not transferred the situation because it did not have the capacity to prosecute members of the LRA, including its leader Joseph Kony, even if here "prosecution capacity" can have a broad meaning . Uganda, rather referred the case to the ICC because it was unable to get hold of the suspects. In other words, if the ICC, after arresting them, turned the suspects over to Uganda; the latter would have been quite capable of pursuing them. Therefore, when we use the ICC as we would the international police, we do not think that it comes under the principle of complementarity; perhaps we are here in front of a substitution case. This explains why states unwilling to respect human rights in their own territories have overwhelmingly acceded to the Rome Statute in the hope of turning it into a court of first instance.
What is more, Mr. OCAMPO, the first ICC prosecutor, would have made secret agreements with President MUSEVENI in exchange not only for this deferral, but also for his silence on the crimes committed by Ugandan government forces in the north of the country and in the east of the DRC; crimes also widely documented in the Mapping report and in the case "Armed activities on the territory of the Congo" known before the ICJ. Unsurprisingly, the Ugandan president did not hesitate to call the ICC a "useless thing" when he felt threatened by it. This shows how the ICC, with the complicity of Mr. OCAMPO, has served as a stepping stone for the political ambitions of certain African states. As we will see, the instrumentalization of the ICC appears from the start of its activities as a cleverly articulated objective. In addition, in the preamble to the Rome Statute, the ICC is assigned the mission of contributing to the restoration of peace. What can appear to more than one because, the search for peace proceeds from an approach sometimes at the antipodes of justice and that, the effectiveness of justice in the restoration of peace has never been demonstrated. . The ICC therefore seeks to find the meaning of its mission in the "peace-justice" equation. Moreover, the intervention of the ICC can in certain circumstances extinguish any hope of peace as in Sudan for example.
The instrumentalization of the ICC is also present in the situations referred to the ICC by states such as the DRC or the Central African Republic. The effect sought by these states is one of a political nature. Thus the ICC has often been used to ward off opponents who become troublesome. The case of the Ivory Coast reinforces, without any doubt, this impression. Indeed, when it comes to the DRC, we recalled in limine that its president indeed welcomed the good cooperation with the ICC in the transfer of militiamen like Thomas LUBANGA or Martin NGUDJOLO who sowed terror during many years in the eastern part of the country. However, the attitude of the Congolese government in the surrender of Bosco NTANGANDA is indicative of the instrumentalization of the ICC for domestic political purposes.
Indeed, the Congolese government had passed away from freezing a first mandate against Bosco NTANGANDA in favor of a more ambiguous agreement. It was then a question of laundering the militiaman in exchange for the integration of his militia into the ranks of the regular army. However, the flip-flop of the Congolese government threatening to implement the second term led to the outbreak of the M23 rebellion. Dropped by his Rwandan supporters, the militiaman had no other choice but to surrender. The same can be said of the attitude of the Central African government, which got rid of Mr. BEMBA.
Moreover, the Ivorian case is very revealing about this and like Nuremberg, the ICC embodies the new face of a justice of the victors against the vanquished. In fact, as early as 2003, President BAGBO had made a request to the Office of the Prosecutor to investigate the commission of crimes attributed to the rebels of the time, including Mr. OUATTARA and Mr. SORO, while the Ivory Coast did not yet had ratified the Rome Statute. While visiting Cote d'Ivoire, the Prosecutor never took any concrete measures, nor informed victims less about the progress of the investigations. Yet the launch of arrest warrants against President BAGBO and Mr. BLEGOUDE, purely for post-election violence coincided with the victory of militiaman OUATTARA in the presidential election. The new Cote d’ivoire transferred the BAGBO case to the ICC in 2011 before becoming part of it only in 2013. The instrumentalization of the ICC by the Ivory Coast results in the fact, then prosecuted in the same circumstances and for the same facts, justice declared itself competent with regard to the wife and denied jurisdiction with regard to her husband. With the help of France, Cote d’ivoire thus got rid of a troublesome opponent. The letter from French parliamentarians calling for inquiries into France's involvement in the Ivorian tragedy has to these days fallen into dearth ears.
Apart from referrals by State Parties, the Security Council has so far referred to the ICC two situations, all of which are African: Sudan in 2009 and Libya in 2011. The powers of review and suspension of the Security Council pose a challenge both in terms of asserting the independence of the Court and of its regular functioning.
For now, let us remember that the Prosecutor has taken up the situation in Kenya concerning the post-election violence. Kenya is today the only case for the exercise of proprio-mutu powers by the prosecutor. The Ivorian case is really not one because, as we have seen, the Ivory Coast already in 2003 asked to open investigations under article 12 of the Rome Statute.
This overview of African referrals shows that the fact that a state transfers a situation to the ICC does not necessarily suggest an endorsement of the universal values of justice embodied by the latter. As we have just realized, states are often referred to the ICC for the sole purpose of using international justice for national policy purposes.
b. AU position towards the ICC: Politics versus Law
The legitimacy of the International Criminal Court depends on the resolution of the conflict with Africa. In that perspective, the Security Council bears the greatest responsibility for the survival of the ICC, whose existence is now threatened. We have seen that Africa is the most important region in terms of member states to the Rome Statute. Likewise, Africa was the ICC's most important support. However, the indictment, or threat of indictment, of incumbent heads of state has sanctioned the "divorce" between the ICC and Africa. At the Addis Ababa summit in January 2016, African states adopted a common strategy to withdraw from the International Criminal Court. This strategy appears to have been precipitated by the unilateral decisions of South Africa, Burundi and Gambia to denounce the Rome Statute. What is most interesting is the fact that Burundi and The Gambia do not seem to have taken a position in favor of the common withdrawal strategy decided by the AU, on the contrary. The decision of these two states is part of what we have qualified as "the instrumentalization of the Court by African states". Indeed, unlike South Africa, Burundi and The Gambia have decided to withdraw from the Rome Statute following threats from the Prosecutor to open investigations into the post election violence. The two heads of state were directly targeted. So one can legitimately wonder how Africa came to imagine a common strategy for withdrawing from the Rome Statute.
In response to the mandate launched by the Prosecutor against the Sudanese President following a Security Council resolution transferring the Sudanese situation to the ICC; the AU Peace and Security Council issued a statement on July 21, 2008 declaring the AU's position on the execution of this arrest warrant.
What is more, the AU Peace and Security Council then insisted that the pursuit of justice should not in any way hamper peace efforts on the continent. In addition, in order to accord with the peace processes already launched by the AU, the latter requested the Security Council to suspend the Al-Bashir Case in application of article 16 of the Rome Statute which authorizes the suspension of an initiated already procedure.
Thus, through its Peace and Security Council, the AU offered an amicable resolution to the conflict that would soon assume worrying proportions. Indeed, at the summit of heads of state and government in Addis Ababa in February 2009, the AU fully endorsed the recommendations of the Peace and Security Council and, moreover, invited its member states, parties to the Rome Statute, to an emergency meeting to assess their cooperation with the ICC. This meeting finally took place during the month of June 2009. The request made to the Security Council to be able to suspend the proceedings initiated under article 16 of the Rome Statute did not meet with favorable echoes among the members of the; UN security council Advice ; they decided instead to renew on July 31, 2009 the mandate of the UN mission in Sudan.
As a result, during the same year, the AU decided not to cooperate with the court in the arrest of the Sudanese president. The AU's arguments can be summed up this way. The AU favored a political solution first, without abandoning the judicial option. Second, the AU feared that the arrest of the Sudanese president would set a precedent for violations of the immunities of a sitting president.
This is not yet a matter of afrocentrism because, as we will see, these accusations came later, especially following the launch of the arrest warrants against the Kenyan president and his vice president. The AU's attitude towards the ICC shows how the relationship between the two institutions has evolved in a roller coaster ride. To materialize the decision of the heads of state and government, the Peace and Security Council has rejected the option of using its troops for the arrest of the Sudanese president. It can be said that the AU's policy towards the ICC has been quite successfuleven if some African states only seemingly refer to it.
After the failure of its action before the Security Council, the AU had proposed under the leadership of South Africa, the amendment of article 16 of the Rome Statute during the 10th session of the Assembly of State Parties held in 2011 in New York. This proposal was of course rejected because, according to certain States, it opened the way to a greater political intrusion into the missions of the Court; as if the enormous powers entrusted in the Security Council in the Rome Statute did not already amount to significant political interference.
In June 2015, the Sudanese president attended the AU summit in South Africa. Following the protests of NGOs and its condemnation by its high court of justice, the South African government had on October 19, 2015 expressed its intention to withdraw from the Rome Statute; which was yet another episode in the standoff between the AU and the ICC.
UN Security Council and the ICC’s impact in Africa
The future resolution of the conflict between the ICC and the AU depends on the ability of the Security Council to reflect on the enormous powers conferred on it by the Rome Statute. We have seen that the current conflict has been exacerbated by the Security Council's refusal to take into account the arguments put forward by the AU to stay the proceedings before the ICC against Sudanese President Omar Al-Bashir. What is most interesting is the fact that the Security Council during the vote on resolution 1593 was deeply divided on the merits of African claims. This leads us to conclude that there is a progressive birth of customary law against the International Criminal Court in Africa.
a. The UN Security Council powers in the Rome Statute and their impact on the strategies conducted by the ICC Prosecutor
Let us say from the start that the mandate of the Security Council as defined in the Charter of the United Nations is essentially political. Thus, the Council has neither legislative powers, nor judicial powers strictly speaking. Moreover, in the Charter of the United Nations, there is nothing to allow recourse to justice to be considered as one of the means at the disposal of the Council for the purposes of maintaining peace. By way of deduction, if the will of the member states of the UN went in this direction, recourse to criminal justice would have been introduced in the Charter and that today is not the case. The theory of implicit powers cannot find any kind of application precisely because of the specific nature of criminal law which establishes the legality of incriminations and sanctions. It follows that the legality of the Security Council's recourse to criminal justice based on the Charter of the United Nations is highly questionable.
Worse, to be legal, recourse to judicial powers by the Security Council must be explicitly endorsed by UN member states. It follows that the member states of the United Nations retain a power of control over the decisions of the Council when, for example, they do not apply them. We have to note however that:
"[...] the fact that States comply with UN resolutions for reasons of political pressure, or for fear of UN coercive measures against them, does not demonstrate that they accept their legal content [...]"
This observation brings us back to the issue of massive accessions of African states to the Rome Statute. If we can definitively exclude naivety on the part of African states, we note, however, that the massive accessions to the Rome Statute obtained as a result of various diplomatic pressures retain a questionable legal value. The AU sling against the ICC sounds like a call, not only to the ICC, but also to the Security Council, which has the greatest responsibility for resolving the AU-ICC conflict, to return to their first missions; that is to say to be the real guardian of peace in the world for the first and to render true justice in order to avoid the disappearance of the world (fiat justicia ne pereat mundus) because, a badly rendered justice is worse than a nuclear weapon.
It should be noted that the creation of subsidiary judicial bodies by the Security Council does not suggest the crystallization of the power to resort to criminal justice in matters of peacemaking. Moreover, Judge CASSESSE disputed the effect of reconciliation wrongly attributed to criminal justice.
On the creation of the ICTY; some States, for example, had made serious reservations to the power that the Security Council would have to create subsidiary jurisdictional bodies. While voting in favor of resolution 827, China and Brazil claimed, for example, that:
“[…] It is because of the particular circumstances, the seriousness and urgency of which require a reaction, that they vote in favor, but that this vote should not be interpreted as an approval of the use by the Security Council of powers of Chapter VII of the Charter to create such a jurisdiction which […] could only be created by a treaty”.
Moreover, it was by treaty and not by resolution that the ICC was created. It follows that placing the ICC under the supervision of the Security Council can only surprise. In fact, it was then a question of giving the impression of having respected the specific nature of criminal law. But letting the new ICC escape the clutches of the Security Council was an intolerable idea. You have to have religious confidence not to be struck by the stark contrast. In other words, in the future, situations will be referred to the ICC by a Security Council whose states are not parties to the Rome Statute.
Under the Rome Statute, the International Criminal Court exercises jurisdiction if a situation in which one or more war crimes, crimes against humanity, genocide or aggression appear to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter. According to the same Rome Statute, no investigation or prosecution may be initiated or conducted under this Statute during the twelve months following the date on which the Security Council made such a request to the Court in a resolution adopted under Chapter VII of the UN Charter; the request may be renewed by the Council under the same conditions.
Obviously, these powers represent the victory of the camp which requested the placing under the trusteeship of the ICC to the Security Council. Furthermore, these powers go beyond the framework of the UN Charter because, as we have seen, there is nothing to conclude that in order to guarantee peace in the world, the Security Council must have recourse to a judicial institution. These powers undoubtedly determine the orientation of the Prosecutor and violate state sovereignty, however proclaimed in the preamble to the Rome Statute.
Indeed, by the vote of resolution 1593 in 2005, Sudan was placed in a position similar to that of the States parties to the Rome Statute. This was done in violation of the Sudanese state sovereignty. Because, the council had decided that:
"[...] the Government of the Sudan and all other parties to the conflict in Darfur must fully cooperate with the Court and the Prosecutor and provide them with all necessary assistance in accordance with this resolution [...]"
And yet in the same resolution, the Council recognizes that the Rome Statute does not impose any obligations on states that are not party to it. In other words, by deciding to place Sudan under the obligations of the UN Charter when these do not apply directly to the ICC; the Security Council had just placed Sudan indirectly under the Rome Statute regime when it was a third party. To be honest, it is :
“[…] Difficult to see on what basis states outside of the treaty regime are bound by the definitions of international crimes included in the Statute”.
In addition, the subjugation of the ICC to the diktat of the Security Council is clearly visible in this resolution where the Prosecutor is required to report regularly to the Security Council on the progress of investigations. The ICC’s setting or guardianship materializes with the crime of aggression, which recently entered into force. So, at the review conference of the Rome Statute in Kampala in 2010, the Prosecutor was required to ensure that the Security Council noted an act of aggression before opening an investigation and the suspension for 6 (six) months until such a finding occurs. Moreover, some states proposed outright paralysis of the action of the Prosecutor in the absence of such a finding The filter of competence attributed to the Security Council because, in the understanding of the ICC, aggression must involve individuals, natural persons and not States. In addition, certain institutions such as the pre-trial chamber or even the General Assembly were in our opinion better placed to ensure this competence. The council is now a distributor of impunity insurance for nationals of certain countries.
b. The emergence of anti-ICC customary international Law
According to the Dictionary of International Law, custom is a normative process leading to the creation of an initially unwritten norm of international law. International custom, as in the case of the African Union, is proven by practice and not the other way around. It follows that international custom is a process of induction and not of deduction. The emergence of a custom depends on a practice that is constant over time and generally in the space of application. Almost a decade now after its inception, anti-ICC customary law fulfills all the conditions of international custom.
Indeed, the International Court of Justice (ICJ) has recognized that the substance of customary law must be sought first and foremost in the actual practice of the opinion juris of States. It follows that the custom does not result from a legal act but from behavior emanating from subjects of international law, in this case from African States. The attitude of African states towards the ICC is in this regard the determining element in the analysis of the birth and emergence of African customary law against the ICC.
In the relations between the ICC and African states, the latters’ attitude effectively generates a rule of customary international law because it is constant and uniform; in addition to the fact that it is unchanged and really followed by African states. On the other hand, some claim that the customary anti-CPI rule, being relatively recent, has not yet crystallized. First, it should be said that the time when the constitutive practices of an international custom had to be traced millions of years before its crystallization are definitely over in international law.
Indeed, international justice had admitted, as early as the 1930s, that a practice dating back less than 10 years can effectively give rise to a customary rule and that the fact that a short period of time has not elapsed does not does not in itself constitute an obstacle to the formation of a new rule of customary international law. The fact remains that what is important for the emergence of a customary rule is the fact that States, especially those which are particularly interested, have recourse to a uniform practice, such as the policy of non-cooperation adopted by the African Union.
The African response to the arrest warrant issued against Sudanese President Al-Bashir gives us reason to believe in the emergence of anti-ICC customary law on the African continent. Indeed, since the launch of this arrest warrant in 2009, the Sudanese president has been in these countries:
• In Chad in July 2010, August of the same year, February 2013, May of the same year and in March 2014;
• August 2010 in Kenya;
• May 2011 in Djibouti
• October 2011 in Lilongwe;
• July 2013 in Abuja;
• February 2014 in Kinshasa;
• June 2015 in Johannesburg
Although the motivations vary from state to state; by refusing to arrest Sudanese President Al Bashir in accordance with the obligation of cooperation in the terms of the aforementioned resolution 1593, the majority of these States felt that they were complying with the decisions of the AU according to which no State should cooperate with the ICC in the arrest of the Sudanese president. Moreover, the refusal of these states raises the question of their dual presence within two institutions which obviously pursue different aims. We will see, for example, that some states, such as the DRC, have taken advantage of Article 98 of the Rome Statute in order to create legitimate confusion about the nature of the conflicting obligations imposed on states by the Rome Statute. In doing so, the DRC will conform with its own confession to the decisions of the continental body.
In addition, on June 14, 2015, the North Guateng High Court of South Africa ordered the South African government to prevent the return of the Sudanese president to his country before its final decision on his possible arrest and surrender. The next day, June 15, 2015, and in violation of the high court order, the government facilitated the return of President Al-Bashir to Sudan. The South African government has violated its own lower laws by believing it is conforming to a rule of a higher nature on the continent, that of not arresting a sitting president regardless of the charges against him.
Anti-ICC customary law has been forging almost a decade now within the AU. We have seen that during the summit of heads of state and government in July 2009, AU member states and parties to the Rome Statute had developed the strategy of non-cooperation with the ICC in accordance with article 98 of the Rome Statute. In addition, it seems that the Security Council's refusal to take African claims into consideration is the basis for the rapid development of anti
ICC customary law.
Anti-ICC customary law was clarified on October 12, 2013 at the summit of heads of state and government of the AU. Indeed, the AU had decided:
“[…] That no court had the capacity to prosecute a head of state in office, nor any person acting in that capacity and that the trials against President KENYATTA and his vice-president RUTO must be suspended throughout the entire period of their functions".
These important developments undoubtedly suggest the emergence of anti-ICC customary law and as we have demonstrated, the practice of African states faced with the application of these new continental norms has largely followed. This is not a contra legem practice because the Rome Statute allows a state to challenge the jurisdiction of the ICC in certain specific circumstances.
African demands have resonated outside the continent. Indeed, the AU request for deferral was noted, but not acted upon, by the UNSC, when it renewed the mandate of UNAMID on 31 July 2008. At that time, there was a split within the UNSC with Russia and China favoring deferral and the United States opposing it.
I want to believe in international justice promoted by the ICC. The ICC is perceived, often wrongly, through the humanism it claims to embody. However, it is necessary to go beyond this angelism and devote oneself to the true meaning of the ICC through its action. Indeed, the approach of this brief paper is to present the ICC under the angle of its impact as an institution
capable guarding human rights of people all over the world. The criticism and sanctions of the USA with regard to the personnel of the ICC show sufficiency how the ICC is plagued by a very great political influence and that it is time to let go of it and to affirm and assume its true nature, that of a judicial institution and not that of an instrument of foreign policy of the dominant powers. The acquittal of Mr. Laurent Bagbo and Charles Blegoudé sheds a new light on the capacity of the ICC to be able to embody the values expressed in the Rome statute. Now, we can put in perspective whether these acquittals constitute a weakening or a gain for the ICC.
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