|Posted by Moderator on May 30, 2020 at 2:50 PM|
AFRICAN BAR ASSOCIATION CONFERENCE 2016
4-7 September 2016
Criminal Court's prosecution and investigation policies
on ICC African Situations in perspective.
By Chief Charles A. Taku
International Criminal Court's prosecution and investigation policies
on ICC African Situations in perspective
By Chief Charles A. Taku
Most international Criminal Courts and Tribunals go far into the history of their Africa situations
to provide the rationale, context and the underlying causes of many of the crimes falling within
their jurisdictions. The ICC which has since its creation targeted mainly Africa and Africans is no
exception to this trend. Standing out in this context and often presented among underlying
factors, are colonial-inspired divisions, ethnicity, land rights, socio-economic and cultural
conflicts, the struggle for power and control.
This paper will discuss some of these factors and their influence and impact on the relations
between the International Criminal Court and Africa.
Pre-colonial, colonial and post -colonial origin of Africa Crimes
The slave trade and thereafter the dismembering and partition of Africa at the Berlin
Conference in 1884 among European powers separated and set apart families, communities,
ethnicities and nationalities. The genealogy of most of the crimes perpetrated in Africa, in
particular ICC Africa situations can be traced to this criminal legacy.
It cannot be reasonably disputed that prior to attaining a form of what I may with due respect,
venture to qualify as cosmetic independence, Africa was not a subject of international law. In
this regard, the protections afforded humanity in international law, including the First and
Second World Peace Conferences (1898 and 1907), the League of Nations, the United Nations,
the Universal Declaration of Human Rights, the Geneva Conventions (1949) etc. did not have
Africa and Africans as intended beneficiaries.
Carefully concealed in the spirit of these laws, were principles protecting the acquired rights of
the West and much of the world over their Africa human and material chattels. Africa and
Africans were therefore victims of international law to the extent that it purposively legitimized
crimes against Africa and the black race.
In other words, international law was deemed to legitimize crimes that were perpetrated
against Africans and Africa’s patrimony considered then as the West’s colonial Africa serfdoms
and vassal states. These included the crimes of genocide, pillage, slave labor, sex slavery, rape,
deportation, enforced disappearances, cultural genocide, murder, extermination, looting of
valued artefacts and systematic evisceration of African civilization, cultural values and way of
A key purpose of Africa’s struggle for independence was undisputedly to exorcise the ghost of
this colonial past and its criminal legacy. Sadly, neo-colonialism quickly replaced colonialism. In
this context, although deemed to be free, Africa is in effect not free. The destiny of most of
Africa was left in the hands and at the mercy of political and economic institutions and
structures established to ensure the preservation and protection of erstwhile colonial interests.
The cloud of criminality hanging over Africa is not accidental nor co-incidental. It was a carefully
and calculatedly conceived strategy to portray independent Africa as incapable of governing
itself for its own good. In this regard the independence that was supposedly granted to Africa
was wrapped in the flags of colonial mental slavery concealed in educational, economic and
Africa today is left without authentic indigenous people oriented governing and self -sustaining
economic ideologies. Most humiliatingly Africa has been brainwashed to believe in a God far
removed from the images of Africans. Africa thus is as good as cattle fodder for its erstwhile
colonizers to feed on; as indeed they are doing with the consequences too many to discuss in
There are frantic attempts by the continuing enslaved African masses to assert their
sovereignty over their own destiny and natural resources. These attempts are being met with
stiff resistance from powerful neo-colonial power hawkers and several networks prying on the
blood and toil of the majority poor. The proliferation of wars and the ensuing crimes
perpetrated in the prosecution of these wars and other forms of instability are consequentially
linked to this vast Africa and international criminal enterprise.
Under these dire circumstances, a majority of African countries saw the Rome Treaty
establishing the International Criminal Court as a mechanism within which to realize the dream
of exorcising Africa from its colonial criminal past and enthroning an era of peace, security and
economic emancipation under the protection of international law in equality for all nations and
all peoples at long last 1 . Africa was so inspired on the basis of the promise of freedom, equality,
non-discrimination and equal justice for all that is enshrined in the UN Charter and replicated in
the statute of the ICC.
Africa believed that the Rome Treaty had firmly established “conditions under which justice and
respect for the obligations arising from treaties and other sources of international law can be
maintained”; so that a reaffirmation of the “faith in human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large and small” can
be attained. 2
It should therefore surprise no one that a failure in the realization of this dream or a mere
appearance of failure to realize these objectives has seriously threatened the basis of Africa
support for the ICC. The ICC Prosecutor’s exclusive focus on Africa is rightly or wrongly
perceived as portraying the institution as advancing the West’s much despised colonial agenda
and its resulting crimes which most Africa joined the ICC ostensibly to combat in all aspects.
The ICC has justified its exclusive focus on Africa on a number of reasons which will be
discussed in this paper. Permit me to respectfully venture at this moment to state that the
Prosecutor has so far provided insufficient reasons or rational explanation for failing to
investigate non-African perpetrators of the crimes in ICC Africa Situations falling within its
1 The Preamble of the Rome Statute of the ICC and its article 1. In particular, the pledge that “Conscious that all
peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this
delicate mosaic may be shattered at any time……… Reaffirming the Purposes and Principles of the Charter of
the United Nations, and in particular that all States shall refrain from the threat or use of force against the
territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes
of the United Nations”
2 The Preamble and articles 1 and 2 of the UN Charter.
mandate. For this and other reasons, the ICC is little known outside Africa. It commands little
respect and relevance in conflict regions outside Africa. In this context, the ICC can best be
called an African Court.
The vision and the record
There is no gainsaying that the fundamental challenge to international justice is always to
shorten the “disconnect” between theory and practice, between the goals of international
justice which we all support and the practices which too often obstruct the achievement of
these goals. Africa expects nothing less from the ICC. However, judging from Africa’s initial
vision of the Rome Treaty, and the records so far attained, we need to always ask ourselves: Is
international justice at the ICC being implemented so that the “rule of law” is applied to all,
with equality and fairness? Today, in respect of the ICC African situations, we have to honestly
answer “no”. The targeting of Africa reminds many in Africa of the arrogance and the impunity
of its humiliating colonial past. A past which I have stated still hangs over Africa like the sword
Many in Africa believe that the selective focus on Africa is driven by international politics and
not the international rule of law. Writing in Global Rights (11 April 2014) Mwangi S. Kimanyi
explained that “African states overwhelmingly supported the Rome Statute in the hope that
those perpetrating atrocities on the people of Africa would never again go unpunished”. 3
Africa’s support for the Rome Statute can reasonably be construed as an African reaffirmation
of the “never again” pledge within the context of centuries of colonial international criminality
that threatened and continues to threaten the essence and existence of Africa and the black
According to Mwangi, “Africa which should have benefited greatly from an International
Criminal Court that is credible, fair, competent and independent”, instead has been projected
as an exclusive bastion of international criminality requiring ICC selective focus and babysitting.
This image of Africa under these circumstances justifies revulsion; even rejection.
3 Mwangi S. Kimenyi The International Criminal Court in Africa: a failed experiment?” Global Rights of 11 November, 2014
This criminal projection of Africa is insulting.
There is no gainsaying that legal processes arising from interventions deemed selective and
discriminatory must be infested with the vile politics that motivated the interventions. This
places the politicization of the ICC Africa trials in its appropriate context. The perceived
politicization of the ICC intervention process on Africa renders the trials conceptually and
practically unfair and unjust.
Explaining conceptual underpinnings of selective and discriminatory trials, Professor Jenia
Iontcheva Turner stated: “The “Legal” and “Political” conceptions of international criminal trials
are ideal types. To some degree all law is political……when trials move further along the
political spectrum, defendants’ rights suffer. ……. Even trials which are exclusively political,
there are instances in which political and adjudicative purposes clash, and one must prioritize
above the other”. 4
The exercise of Prosecutorial discretion to investigate and prosecute even in situations where
the process was triggered by a state party, the UN Security Council or the Prosecutor proprio
muto is potentially influenced by profound policy and political considerations. 5 These
influences may be financial contributions towards the investigations and /or the geo-political
and economic hegemonic powerful influence of some super powers members or non-members
of the UN and/or State Parties to the Rome Statute.
4 Virginia Journal of International Law: Volume 48, Number 3, April 2008 p.543. Defence Perspectives on Law and Politics in International
5 Article 13 of the Rome Statute of the ICC states: The Court may exercise its jurisdiction with respect to a
crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the
Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the
Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15
For example, although The US signed the Rome Statute in 2000 it did not ratify the treaty and is
thus not a state party. However, it has signed special agreements with many ICC member states
intended to shield or immune US citizens and military service personnel from the jurisdiction of
the ICC. 6 Despite this spiteful disregard for the mandate of the ICC, the United States continues
to influence ICC Prosecution and Africa intervention policies.
Through its membership of the Security Council and its direct contributions, the US supports
and significantly influences ICC Prosecutorial policy decisions when it suits it’s geo-strategic and
economic agenda. This US influence like that of its NATO European partners has tainted the
judicial processes at the ICC and portrayed the court’s essentially Africa-focused interventions
as political and neo-colonial.
While insulating itself, its service-members and vast economic interests in and out of Africa
which significantly contribute or are responsible for the conflicts in which crimes coming within
the jurisdiction of the court are perpetrated from investigation and prosecution, the US and its
NATO alliance partners have consistently criticized African leaders for allegedly seeking
immunity from criminal prosecution under the Protocol conferring criminal jurisdiction on the
African Court of Justice and Human Rights. 7
This criticism obviates the fact that each international court has its peculiarities and the African
Court of Justice and Human Rights will be no exception relating to the question of immunity
and its jurisdictional reach. The criticism of the Africa Union endeavor does not acknowledge
the vast jurisdictional reach of the Protocol to the African Court of Justice and Human Rights on
many of the egregious crimes committed in Africa by Africans and Non-Africans which
distinguishes it in some significant respects from the ICC. Deferring to the jurisdiction of the
ICC, on international crimes committed in Africa, as many of the critiques suggest, will leave the
majority of the crimes un-investigated, un-prosecuted and unpunished. 8
6 America Service-members’ Protection ACT (ASPA)2001
7 Protocol on amendments to the Protocol on the Statute of the African Court of Justice and Human Rights 15 May 2012 Article 46 A Bis states,
“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody
acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”
8 Article 28 A of the Africa Protocol criminalizes: genocide, crimes against humanity, war Crimes, crimes of unconstitutional
change of government, piracy, terrorism, mercenarism, corruption, money Laundering, trafficking in persons, trafficking in
drugs, hazardous wastes, Illicit exploitation of natural resources and aggression.
The Rome Statute does not criminalize and therefore does not have jurisdiction over the crimes
of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money
laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes and illicit
exploitation of natural resources. The African Court of Justice Protocol does. There is no
gainsaying therefore, that these crimes over which the African Court of Justice and Human
Rights’ Protocol has jurisdiction are the most common in the continent.
These crimes are also the most destabilizing. The category of criminals is easily identified. The
victim pool of these crimes trickles to the basic fabric of the society. Selective and
discriminatory justice targeting only Africa and Africans will not be possible in the investigation
and prosecution of these crimes.
The Protocol targets the most egregious crimes perpetrated in Africa at the source. This may be
one reason why the Protocol is attacked and vilified. To borrow the much taunted language of
Nigerians in another but related context, “this is international criminality against Africa fighting
The immunity provision written into article 46 A bis of the Protocol to the African Court of
Justice and Human Rights is founded in customary international law. It is undisputable that the
UN Charter article 104 confers immunity on the UN 9 so also are a wide range of diplomatic
agents 10 . According to Rene Vark such agents due to the principle of personal inviolability of a
diplomatic agent may not be arrested or detained under any circumstance.
This is the basis on which French service personal on UN Peace Keeping assignment in the
Republic of Central Africa benefited from immunity from Prosecution for the widely reported
cases of rape thanks to the article 104 immunity provision of the UN Charter 11 . France, a major
9 Article 104 of the UN Charter states “The Organization shall enjoy in the territory of each of its Members
such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its
purposes”. See also. Rene Vark: Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes
Juridica International VIII 2003 p112 Lawji_2003_1_110
super power member of the UN Security Council and significant critique of article 46 A bis of
the Africa Court of Justice and Human Rights’ Protocol has taken no steps to investigate these
Peace Keepers at the completion of their tour of duty. Also, the spread of cholera in Haiti and
Nepal widely attributed to the actions of UN Peace Keeping personnel have not been
prosecuted due to the protections afforded by article 104 of the UN Charter.
The Africa Union was therefore not creating a new rule of international law to insulate African
leaders from investigation and prosecution for alleged crimes committed by them nor did the
provisions of article 46 A bis of the Africa Protocol confer absolute impunity on them. The
repeated assertions to the contrary is mere propaganda intended to stifle a much desired Africa
initiative which far from perfect, is a significant step towards providing a Pan African solution
towards confronting impunity and ending the scourge of war on the African continent.
A careful reading of the impugned provision of the Africa Court of Justice Protocol reveals that
the functional immunity granted under that provision relates only to the duration of the
mandate of the listed individuals. The crimes they may have perpetrated while holding public
office subsist and they may be held accountable on leaving public office.
It is conceded that many crimes are perpetrated in Africa justifying in some case the ICC
intervention. But looking at what is going on in the world today, a great many war crimes are
committed in other regions of the world.
The ICC Prosecutor has commenced preliminary examinations in other part of the world, one of
which has given rise to an investigation. 12 The ICC Prosecutor has nevertheless not
demonstrated sufficient interest and ability to investigate and prosecute international crimes in
other regions of the world.
12 The ICC Prosecutor has commenced preliminary examinations I Afghanistan, Burundi, Colombia, Guinea, Iraq/
UK, Nigeria, Palestine, Registered Vessels of Comoros, Greece, and Cambodia, Ukraine. Investigations have been
opened in Central Africa Republic, DRC, Darfur, Sudan, Libya, Mali, Central Africa II, Georgia, Cote D’Ivoire, Uganda,
The ICC declined to investigate the crimes perpetrated by ISIS even though a significant number
of ISIS combatants are from ICC state parties in Europe. Egregious crimes for which ISIS claimed
responsibility were committed in France, Belgium and Germany. Such attacks which are on the
rise have mobilized world leaders and hundreds of thousands of demonstrators across Europe.
The UN Security Council failed to pass a resolution authorizing ICC intervention in Syria. This
conflict in which super powers members of the UN Security Council are actively participating
has claimed hundreds of thousands of lives and the casualties are on the rise.
It seems improbable that the ICC investigator can reasonably investigate the crimes
perpetrated in most non -African conflicts without investigating crimes perpetrated by service
men and women deployed by these super powers to prosecute the wars in the affected
The symbolic decision to conduct a preliminary examination of the alleged crimes committed by
British soldiers in Iraq may surely not end in an investigation, although the alleged crimes have
never been reasonably disputed. The political, budgetary, ideological and geostrategic risks in
investigating and prosecuting these service men and women are just so grave to even
Despite their own record of criminality in wide ranging conflict in Africa and other parts of the
world, some of the world super powers portrayed the political post-election conflicts in Burundi
and Kenya as conflicts that required ICC interventions. These recommendations were ill-
motivated or were made in attempts to misrepresent the real causes of the conflicts to justify
In the case of Burundi consistent UN agency field reports have accused neighbouring Rwanda
for training and arming Burundi refugees, including child soldiers to infiltrate and destabilize
Burundi. A failed coup leader in Burundi Godefroid Niyombare claimed responsibility in a KTN
Kenya television interview on July 5 2015, for the distribution of grenades to the civilian
population of Burundi to destabilize his own country in the hope of toppling the government 13 .
Despite this overwhelming evidence some Western Governments preferred relying on
concocted evidence that includes a video of Boko Haram terrorist attacks in Northern Nigeria
that was submitted to various UN organs and the ICC by civil society activists and NGOs to press
for ICC intervention and investigation of alleged crimes against humanity committed by the
security forces of Burundi. 14
As the situation in the Republic of Kenya shows, boasting that he was going to make Kenya an
example of the effectiveness of ICC prosecutions, Mr Ocampo the erstwhile ICC Chief
Prosecutor made a decision to intervene in the Kenya post-election crisis barely a few months
of its occurrence. It turned out that he relied in the main on reports established by partisan
NGOs, national and international special interests and civil society activists to initiate his
intervention in this post-election political agitation with significant risks. 15 Mr Moreno Ocampo
failed to recognize that profound independent investigations which he did not conduct, are the
bedrocks of fair and credible prosecutions which are attributes of fundamental fairness.
Some of the individuals who prepared these reports and provided some of the accounts on
which Mr. Ocampo relied on to bring the cases, entered the political arena while the cases were
ongoing, contested parliamentary and senatorial elections and prevailed. This significantly
compromised their neutrality and integrity as dispassionate human rights crusaders whose
primary motive for submitting their reports to the ICC Prosecutor was to combat impunity and
to protect the interest of victims of impunity. It turned out that the reports prepared by these
individuals were not credible and were rejected at trial. Their participation in the cases was to a
large extent responsible for the collapse of the cases.
It is significant to note that in a credible attempt to correct this grave policy failure, the Office
of the Prosecutor in its Strategic Plan 2016-2018 specifically laid out investigative and
prosecutorial standards which clearly depart from the prior strategy that relied on reports and
evidence gathered by these non- professional sources to formulate prosecutorial decisions on
14 Burundi deposited its instruments of ratification of the Rome Statute on 21 September 2004. On 25 July 2016, the Prosecutor
opened a Preliminary Examination into the Situation in Burundi.
15 The Republic of Kenya ratified the Statute of Rome on 15 March 2005. The Post -election conflict in Kenya took place in
2007/2008. On 31 March 2010 Pre-Trial Chamber II of the ICC ordered an investigation in the situation in the Republic of Kenya
ICC-01/09-19 pursuant to article 15 of the Rome Statute.
interventions, investigations and prosecutions. 16 This laudable policy shift if applied may
significantly lead to better prosecutorial interventions and prosecutions.
Justifying ICC Africa Interventions
The Prosecutor of the ICC has criticized the AU and some African governments for politicizing
ICC African interventions. The charge of the politicization of international justice is not
surprising. Indeed, a number of legal scholars among them Professor Malcom N. Shaw holds the
view: “that there can never be a complete separation between law and policy. No matter what
theory of law or political philosophy is professed, the inextricable bonds linking law and politics
must be recognized” 17 .
The politicization of ICC interventions is institutionalized in the Rome Statute. The Rome Treaty
by conferring the power to make referrals and deferrals on the Security Council provided the
Council with an additional political tool by which it may exercise its Chapter VII authority. 18 To
this date, this authority has been invoked only in ongoing African conflicts.
Ignoring African and regional efforts towards peace, the UN Security Council referred the
situation in Darfur to the ICC. 19 The Prosecutor opened a proprio motu investigation in Cote
D’Ivoire in October 2011. 20 This intervention was made at the heart of the post-election
political crisis in which UN forces and French forces present in Cote D’Ivoire used military force
16 The Prosecutor made a candid admission in paragraph 17 of the Prosecution strategic plan thus.” In its 2012-
2015 Strategic Plan, the Office committed itself to managing cases developed on the basis of its previous
prosecutorial policy to the best of its ability. During this period, the Kenya situation gave rise to particular
challenges for the Office. Several factors led the Prosecutor to withdraw the case against Uhuru Kenyatta and
Francis Muthaura: the limited availability of evidence due to the specific nature of the case; the Prosecutor’s
limited access to evidence due to non-cooperation; and the lack of alternative investigative avenues to substitute
for key evidence, which was ultimately eroded and found to be unreliable. The shift in prosecutorial policy
heralded in the Office’s Strategic Plan(June2012-2015), emphasizing the need to be trial ready as early as possible,
building cases upwards where necessary and increased reliance on varied forms of evidence, will help avoid the
recurrence of such challenging situations”
17 International law Fifth Edition Cambridge 2007, PP 9 and 11
18 Article 16 of the Rome Statute of the ICC states “No investigation or prosecution may be commenced or
proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted
under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be
renewed by the Council under the same conditions”.
19 Situation in Darfur ICC-02/05 Situation referred by the UN Security Council in March 2005.
20 Cote D’Ivoire accepted the Jurisdiction of the ICC in April 2003. The post-election political crisis occurred in
2010/2011 and the Prosecutor exercised his proprio motu authority to intervene
to subdue and capture President Laurent Gbagbo. While President Gbagbo was handed over to
the ICC Prosecutor the political power that was the basis for the political crisis was handed over
to his election challenger Allasane Ouatarra. It is hard in this situation to purport to delink the
supposed legal motivations for the prosecution of President Gbagbo and the handing over of
power to his then political rival in the post elections crisis in which alleged crimes were widely
to be have been committed by all the parties in the conflict.
The referral in the situation in Libya was made concurrent with UN Security Council exercise of
its Responsibility to Protect authority and NATO extensive bombardments. The Security Council
and NATO interventions claimed thousands of lives, conferred legitimacy on non-state actors
and criminal gangs, providing them with the resources, weapons and the impunity with which
they perpetrated grave crimes in Libya and are continuing to perpetrate crimes targeting North
Africa, Africa Sahel and West and Central Africa. Peace efforts initiated by the African Union
and other regional bodies that were ongoing were simply ignored. Like in the Cote D’Ivoire
situation, the legal and political motivations were complementary bed fellows, serving a
common master; the neocolonial West.
Once the Prosecutor made a proprio muto intervention in Cote D’Ivoire and the Security
Council made a referral in the Situation in Libya, the UN Security Council in the exercise of its
Chapter VII intervention authority deviated from the intendment and objectives of the Rome
Statute and construed the role of the ICC Prosecutor as complementary to and in support of its
Responsibility to Protect Mandate. This clearly portrayed the ICC Prosecutor as a regime change
agent at the service of super power participants in the armed conflict.
Effectively the ICC intervention during the pendency and at the height of the armed conflicts
led to regime change in Libya and Cote D’Ivoire. This seriously compromised the independence
and neutrality of the ICC. The ICC intervention was perceived as supporting the war efforts
rather than seeking justice for victims. ICC investigation and prosecution targeted alleged
perpetrators that the UN, NATO and some super powers wanted taken out. Once that mission
was attained, the ICC took no steps to investigate the criminal actors who fought on the side of
NATO, the Super powers or the UN. Yet the record of criminality of the non-state actor criminal
gangs has been condemned even by the UN that invited and supported them and the ICC into
the conflicts. The ICC intervention in these situations was not perceived as impartial and
The ICC Prosecutor personally initiated an intervention in the Republic of Kenya during the 2007
post-election conflict. Some delegates at the Rome Conference were skeptical in granting the
authority to personally initiate interventions to the Prosecutor without reasonable oversight.
The Judges in the Pre-trial Chamber in the confirmation of charges decision in the case of
Prosecutor V Francis Mathuara and Uhuru Kenyatta anxiously considered this matter. 21
Mr. Moreno Ocampo the former Prosecutor of the ICC granted an Interview to a Netherland
based, News Organ admitting that political pressure was placed on him by some diplomats
present in Nairobi and some NGOs to rely on the ICC case to bar President Uhuru Kenyatta and
Vice President William Ruto from contesting the Kenyan presidential elections which they
contested and won. Failing in their plan, they continued to interfere with the judicial process. 22
This interference, poor investigations and poor case management significantly discredited the
Kenyatta and the Ruto/Sang cases leading to their collapse. 23
Rule of law for all
The Prosecutor rightly asserts that a number of ICC interventions were at the request of African
governments. Some of such state party referrals were intended to serve political objectives.
Once the Prosecutor evinced an effort to look beyond these political objectives, the state
parties concerned strenuously resisted. State Party referrals should not form an uncritical basis
for ICC selective focus.
Unfortunately, even some critical voices in and out of Africa are still ignorant of the objectives
of the Rome Statute. Many on the continent ignorantly consider the ICC as an institution whose
21 ICC-01/0-19, Decision Pursuant to Article 15 of the Rome Statute, on the Authorization of an Investigation into
the Situation in the Republic of Kenya. Para 52
22 Thehaguetrials.co.ke/article/mr-ocampo-why-are-only-africansbeing judged by the icc; 30 January 2014
23 On the 13 March 2015, Trial Chamber V(B) of the ICC delivered a decision granting the Prosecutor’s application
withdrawing the charges against President Kenyatta. On 4 April 2016 the Trial Chamber delivered a judgment
terminating the case against Mr. Ruto and Mr. Sang.
mission is to intervene and exercise jurisdiction in all human rights violation situations or in
political conflicts. 24 Politicians, civil society activists, NGOs and special interest organizations
spend time wooing the ICC to intervene and help them fulfill their mandates. The truth is that
the ICC plays but a complementary role to national institutions and is neither a super sheriff nor
a supranational legal overseer with the mandate to superintend and control national
institutions. 25 With a more robust outreach strategic policy, Africa will come to know the
mission and objectives of the ICC in its appropriate role.
A critical review of ICC interventions and investigations in Africa establishes that the ICC
whether invited by state parties or by the UNSC, has targeted solely the vanquished in conflicts
in its Africa situation. This policy tacitly grants impunity and immunity to victors and their
supporters and tacitly encourages the perpetration of more crimes. The policy encourages and
escalates conflicts and crimes, despite ICC intervention. It entrenches divisions arising from
African conflicts; affording victims allied to the victors the protection and benefit of
international criminal justice; leaving the victims allied to the vanquished helpless but pruned
to self-help. These communities whether on the side of victors or the vanquished deserve and
require equal justice and equal protection of the law as prerequisites to reconciliation and
Despite these concerns about the ICC interventions, the critical voice and threats of ICC
interventions along with those of other actors is contributing to the organization of violence
free elections in a number of African situations. Kenya and Nigeria are two examples. Overall,
threats and selective interventions have not restrained the wave of criminality afflicting Africa
which is on the rise. Going hand in hand and complementing each other, only equal justice for
all without a discriminatory connotation, peace and reconciliation will deter crimes and
conflicts in Africa. The rule of Law should be for all and not just some.
Calling into Question the effectiveness of ICC interventions
24 Crimes coming within the jurisdiction of the ICC are laid out in articles 5-8 of the Rome Statute. Article 70
criminalizes offenses against the administration of justice.
25 Articles 1 and 17 of the Rome Statute.
The escalation of conflicts and/or political tensions in Libya, Central Africa Republic, Sudan and
DRC despite ICC interventions calls into question the effectiveness of ICC Prosecutorial
interventions. The ICC Prosecutor need to re-evaluate her Africa intervention policy and
balance it with the overall objectives of the Rome Statute. This requires the delivery or
provision of universal, non-discriminatory, no-selective justice to all. The ICC needs to
encourage and assist African countries to strengthen their capacity to investigate and prosecute
international crimes in fulfillment of the complementary goals of the Rome Statute. 26
The ICC outreach programme should aim at getting more African countries to domesticate the
Rome Statute into local legislations. The decision by the AU to amend the protocol to the
African Court of Justice and Human Rights conferring it with criminal jurisdiction to further the
objectives of ICC complementarity is an achievement that the ICC should be celebrating rather
than oppose. The Western media has criticized the African union for supposedly seeking
immunity of African leaders from prosecution. This misplaced criticism obviates the fact that
the deferral authority of the Security Council under the Rome Treaty which is exercisable at all
stages of a case before the ICC does just the same. It in effect grants immunity from trial.
The Prosecutor has not established a credible threshold on the basis of which to apply the
principle of complementarity in its Africa interventions. Where the principle of
complementarity has been applied, it has rewarded lawlessness and criminality. For example,
the deferral to Libya which had no effective functional central government and judiciary in the
case of Abdullah Al-Senussi while denying Kenya with a functional democratic government and
a new democratic constitution the right to investigate and prosecute crimes perpetrated during
its post-election conflict in 2007 has not been sufficiently explained.
The ICC Prosecutor and the Judges at the ICC have failed to investigate non-African perpetrators
of crimes occurring in ICC African situations. Falling in this category are financiers of African
conflicts and potential crimes also called “arms for minerals merchants”. Investigating this
category will require looking beyond Africa and Africans.
26 Pursuant to articles 1 and 17 of the Rome Statute.
It will require investigating potentially powerful countries, institutions and individuals bearing
the greatest responsibility for African crimes. The Prosecutor provides no reasons for selectively
keeping the focus away from this category of perpetrators. Not investigating and prosecuting
them, affords them tacit immunity and impunity to sponsor and sustain the culture of violence
and criminality that is claiming millions of lives on the Africa continent. The lack of interest by
the Prosecutor in investigating and prosecuting these powerful criminal actors is responsible for
the cycle of violence and criminality afflicting Africa.
Institutional recognition and dialogue
ICC has been accused of being insensitive to conflict resolution efforts in ICC Africa situations. It
is perceived to be insensitive to the sovereignty of African states and the cultural dynamics of
its people. Africans are culturally sensitive about matters pertaining to the very essence of their
humanity, justice, security and their values system.
Tired of being humiliated out of efforts deployed to provide solutions to African problems by
Africans, the AU is becoming assertive in reclaiming respect and a recognition of its rightful
place in African affairs. The ICC and the international community should accord this African
sensitivity due consideration and recognition.
It must be recognized that despite significant challenges, Africa is undergoing critical changes
worthy of note. For the past decades, a more assertive AU has deployed peace-keeping and
combat forces to a number of African conflicts areas and redoubled its conflict resolution
efforts in several others. Against the backdrop of Western actions intended to prevent ICC
interventions and prosecutions in crimes perpetrated by their citizens across the globe,
including Africa, the AU strongly objects to the targeting and use of Africans as guinea pigs for
the development of new principles of international criminal justice and jurisprudence.
The ICC Prosecutor needs a critical review of her Prosecutorial policies and adopt a more
rational, balanced and engaging approach that respects state sovereignty while pushing for the
fulfillment of her mandate under the Rome Statute. Two significant actors of international
criminal justice who from an African perspective and that of the Nuremberg trials symbolize
victors’ justice have in recent times spoken out forcefully in support of the wisdom of adopting
Louise Arbour a former Prosecutor of ICTY and the ICTR in an interview in the Mail Globe
(March 28, 2015) regretted the errors she made in ignoring peace efforts in conflict situations.
According to Louise Arbour: “There is a basic flaw in the international effort to simultaneously
pursue justice, peace and human rights…… the initiation and unfolding of criminal prosecutions
can complicate if not impede peace processes. The negotiation of a lasting peace often requires
a delaying, or forgiving, of justice. In attempting to impose fully formed notions of equal rights
on countries that have yet to develop them internally, Western countries appear to be bullies,
undermining their efforts on the other two fronts. The way out of this, is to stop trying to
impose everything at once and opt for a more humble “micro” approach: a quiet, mediating
role in fixing individual wrongs”. Drawing from her experience “in international governance,
human security, the responsibility to protect, arms reduction, international criminal justice”
Louise Arbour conceded that international justice is “either very stuck, or it’s very confused”. 27
In a lecture to Students in Emory University, (2 Jan. 2015) Ben Ferencz the last surviving Chief
Prosecutor of the Nuremburg trials recommended a reconsideration of the goals of criminal
law. He said that “criminal law is not to put people in jail. It’s to deter the crimes and create a
more humane world”. How do you do that? He asked. Answering his own question, he said,
“The first step is to stop glorifying war, and begin glorifying peace. You cannot kill an ideology
with a gun. You have to have a better ideology.” 28
This is just the type of complementary approach the Chief Prosecutor of the ICC Fatou
Bensouda has in a significant policy shift, just adopted towards the Situation in Colombia. Africa
deserves the complementary recognition she has accorded to the Peace initiatives that will end
in a historic peace agreement between the government of Colombia and the Revolutionary
Armed Forces of Columbia. 29
27 Mail Globe March 28, 2015
28 Emory University School Law, Jan. 2, 2015
In her statement, the Prosecutor acknowledged the peace agreement that will end the fifty-two
years armed conflict in Colombia. She noted in particular that the parties did not include a
provision for immunity for grave crimes that threatened the peace and claimed so many victims
for which effective punishment was required. In a probable attempt to encourage the peace
objectives and justice for victims of grave crimes, she differed to the Government and People of
Colombia the exercise of the right of complementarity in the provision of effective punishment
for these crimes.
This policy shift should be popularized and applied to Africa ICC Situations in other to
encourage peace initiatives as well as accountability for grave crimes falling within the
Jurisdiction of the Statute of Rome. The ICC Prosecutor in this policy shift clearly recognized the
efforts of other justice and peace actors towards reconciliation, peace and accountability and
an end to impunity.
To many in Africa, her predecessor Moreno Ocampo portrayed himself and acted as a media
frenzied self-glorifying Super Sherriff with a special knack for interventions in ongoing political
conflicts and irresponsibly getting the ICC mired in those political conflicts. This conduct was
perceived as intended to gratify and promote the ego of the individual and not the clearly
stated objectives of the Rome Statute. It was deemed condescending, demeaning, insulting,
revolting and repugnant to the sovereignty of African states and the personal dignity of
The conscience of universal Justice
The exclusive targeting of Africa needs to be reversed. The wisdom and justice of reversing this
policy is justified by the requirement of fundamental fairness in the administration of
international criminal justice.
The wise counsel of Justice Robert H. Jackson Chief of Counsel for the United States, in his
Opening Statement before the International Military Tribunal at Nuremburg on 21 November
29 Statement of ICC Fatou Bensouda dated September 1, 2016 on the Conclusion of Peace Negotiations between
the Government of Colombia and the Revolutionary Armed Forces of Colombia “The Peoples’ Army”.
1945 illuminates the universal goal and appeal of fundamental fairness of criminal proceedings:
“Fairness”, Justice Robert H. Jackson submitted, “is not a weakness . . . [but] an attribute of our
strength,” … “We must never forget that the record on which we judge these defendants today
is the record on which history will judge us tomorrow. To pass these defendants a poisoned
chalice is to put it to our own lips as well. We must summon such detachment and intellectual
integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s
aspirations to do justice.”
The most remarkable lesson from the International Military Trials in Nuremberg and Tokyo is
not about the convictions and the harshness of the sentences meted out on those who bore the
greatest responsibility of the crimes that shocked the conscience of humanity. The judgment in
those cases and the convictions secured justified and secured the eternal relevance of the
collective pledge that was written in our collective consciences and that of posterity that never
again will crimes of such magnitude happen on our watch.
Regrettably despite the Nuremberg and Tokyo convictions and humanity’s collective pledge,
such crimes have occurred on our watch. They will occur again and again unless the institutions
put in place by the comity of nations to enforce humanity’s collective pledge establish
appropriate legal frameworks that are fair and seen to be fair to all, to pre-empt, investigate,
prosecute and punish the perpetrators of grave crimes that threatened and continue to
threaten humanity and our common existence. 30 Some of these vicious crimes have not been
criminalized and punished for the fear that doing so, may challenge the ideological and
material heartbeat of the industry of death that pry and feeds on the sweat and blood of the
weak, exploited poor races of the world and the wretched of the earth.
The most remarkable lesson of these trials may indeed not even be the salvific idea initiated by
Stalin that the German accused be subjected to due process of the law as opposed to summary
execution proposed by President Franklin Roosevelt, lest vengeance and the criminal methods
of dispensation of justice by the German war criminals that sent millions of innocent Jews to
gas chambers occasioning the holocaust be legitimized and celebrated and dignified.
30 A remarkable attempt by the Africa Union to criminalize for the first time ever some of the most egregious
international crimes afflicting humanity in article 28A of the Protocol of the African Court of Justice and Human
Rights has not attracted the attention or support required.
It is not victor’s justice that the judicial process was. Rather it was about the impassioned
submission made by the Chief Prosecutor Justice Robert H. Jackson for the participants in the
trial to “summon such detachment and intellectual integrity to their task that the trial would
commend itself to posterity as fulfilling humanity’s aspiration to do justice”. Although this
submission was made in a court room in Nuremberg some seventy years ago, it was directed to
the conscience of humanity at large.
Today as we sit here today in Harare in this great nation of freedom fighters, we can proudly
assert that from the trial of the perpetrators of some of the worst crimes that threated
humanity, after the slave trade, Justice Robert H.Jackson spoke for you and me and the world at
large when he strongly recommended the fairness of criminal proceedings as the solemn
weapon with which the fight against impunity must be fought and won. 31 Complementing his
esteemed colleague, Justice Robert H. Jackson, Ben Ferency, the only surviving Chief Prosecutor
of the Nuremberg trials emphasized the objectives of criminal law in a lecture to students of
Emory University on 2 January 2015. “criminal law” he said, “is not to put people in jail. It’s to
deter the crimes and create a more humane world”.
It is hoped that these worthy contributions by two Chief Prosecutors at Nuremburg will attract
the attention of their esteemed colleague the Chief Prosecutor of the ICC Fatou Bensouda as
she ponders over a reconsideration and reformulation of the ICC Prosecutor’s policy of
exclusivity and selectivity targeting of Africa. It is conceded that she inherited this policy and
has to defend or reform it. The ICC Prosecutor policy shift evident in her statement on the
Situation in Colombia on September 1, 2016 may be a pointer to the fact that at the long
awaited journey towards the assertion of the universal pantheon of justice reaffirming the
“faith in human rights, in the dignity and worth of the human person, in the equal rights of men
and women and of nations large and small” in peace and justice for the good of humanity
without discrimination may have commenced. Were this to happen in earnest, then and only
31 Flowing from this appeal, fundamental fairness of criminal trials became the soul of our universal criminal
justice system. See Universal Declaration of Human Rights (UNGA Res. 217 (III), Paris 10 December 1948, Articles
1,2,10 and 11; ICTY Statute article 21, ICTR Statute article 20, Special Court for Sierra Leone article 17, Special
Tribunal for Lebanon article 16, Extraordinary Chamber for Cambodia article 35 (new), the ICC articles 67 and 68
and the International Covenant on Civil and Political Rights article 14.
then, will Africa consider its search for recognition and respect among the races and nations of
the world and in the policy consideration of the ICC Prosecutor reasonably fulfilled. 32
As the gatekeeper of international criminal interventions, investigations and prosecutions at
the ICC, the ICC Prosecutor must quickly adopt the wisdom of these powerful submissions
made by her peers at Nuremberg, Mr. Justice Robert H. Jackson and Chief Prosecutor Ben
Ferency as the signposts on which to anchor fair international criminal interventions and
prosecutions at the ICC. Fundamental fairness requires that the ICC Prosecutor casts the spear
of justice towards those bearing the greatest responsibility for crimes falling within the
jurisdiction of the court in all the directions in which they may be found not selectively in some
For this spear of justice to slay the beast of impunity and criminality on the African continent, it
must aim at perpetrators from all parts of the world who may be or may not be Africans. The
justifications and reasons for targeting Africa and Africans in alleged crimes perpetrated in
Africa against African victims fall flat to the ground considering that not a single arm merchant,
mineral explorer, money launderer, and geopolitical power hawkers who finance and support
the war efforts in which the crimes are perpetrated has been investigated or prosecuted.
For this reason, the ICC Prosecutor must cast her intervention nest beyond Africa in search of
the perpetrators of grave crimes in Africa, lest the route to The Hague transforms to a painful
reminder of the transatlantic slave route. The time to restore the hopes that the Rome Statute
held for millions on the African continent is now.
Africa is not seeking immunity or impunity from ICC Prosecutor’s intervention, investigations
and prosecutions as some critics have superficially and wrongly asserted. Africa is seeking
interventions that accord with the objectives of the Rome Statute which in dignity, fairness, and
equality recognizes her place among subjects as opposed to objects of international law.
32 Preamble of the Rome Statute; Preamble and articles 1 and 2 of the UN Charter.
Chief Charles Taku, a Traditional Chief and contributor to several professional journals
and newspapers from Cameroon, is an Advocate of the Supreme Court of Cameroon.
He is currently a Member of the Executive Committee of the International Criminal
Court Bar Association and Vice President in charge of the Defence. He is also the Vice
President of the Association of Defence Counsel before the International Criminal
Tribunal for Rwanda and its Residual Mechanism (ADAD).
He has practiced law for 35 years. For the past 16 years he was lead counsel at three
International Criminal Courts: (a) UNICTR (Semanza and Military II). With Co-counsel
Beth Lyons he obtained an acquittal for their client in the Military II case on appeal;
(b) the Special Court for Sierra Leone (The RUF Case and the Contempt Proceedings
Counsel for Mr. Samuel Kargbo, in Prosecutor V Hassan Papa Bangura and others,); and
(c) the ICC (Continuing investigation in the Republic in Kenya, Article 70) Prosecutor Vs
(d) ICC (Situation in the Central Africa Republic, Prosecutor V. Bemba and others,
Article 70 proceedings, Counsel for Mr. Narcisse Arido), (e) ICC (Situation in Northern
Uganda, Prosecutor v Dominic Ongwen.
Chief Taku represented Mr. Denis in Atemkeng v The African Union before the Africa
Court for Human and Peoples’ Rights and successfully represented Mr. P.D Engo in Engo
v Cameroon at the UN Committee for Human Rights in Geneva Switzerland among many
Among his many publications are:
International Politics and Policy Considerations for the Inappropriate Targeting of Africa
in the ICC OTP, in CONTEMPORARY ISSUES FACING THE INTERNATIONAL CRIMINAL COURT, by Professor
Richard Steinburg Published by Brill Nijhoff with Preface by ICC Prosecutor Fatou
Bensouda (April 2016).
African Court and International Criminal Justice and the Quest for a New World Judicial
The ICC and Kenya: Going Beyond the Rhetoric in Justice Belied (2014): The Unbalanced
Scales of International Criminal Justice edited by Sebastien Chartrand and John Philpot;
Contextual Foundations of International Criminal Jurisprudence (2014) Author house