International Justice Day 2022: Time for ICC to flip the script

The ICC, long accused of using Africa as a ‘laboratory’, should now use the lessons it learned in Ukraine to help deliver justice in Africa. 

For many years, the International Criminal Court (ICC) was pilloried with allegations that it was biased against African states and unfairly targeted African leaders. The charges were severe and rife. They came from journalists, academics and state leaders – some of whom, it should be stressed, were more worried about their own alleged involvement in atrocities than the impartiality of the Court.

Greater equality in the global distribution of accountability for international crimes – war crimes, crimes against humanity and genocide – is desperately needed. July 17 is International Justice Day. It commemorates the anniversary of the adoption of the Rome Statute of the International Criminal Court. It is also a useful moment to reflect on just how “international” international justice actually is.

Accountability for mass atrocities is far from evenly distributed. To paraphrase the former US Ambassador-at-Large for War Crimes Issues, Stephen Rapp, when it comes to international crimes, there is only some justice in some places for some people some of the time. It was just last month that the ICC finally issued warrants for non-African nationals, citizens of the Russian-backed territory of South Ossetia; they are charged with war crimes and crimes against humanity committed during the 2008 war in Georgia.

The ICC has only investigated a handful of situations and prosecuted even fewer. Part of that is because the Court is limited in its resources and reach. For years, states have nickeled-and-dimed the institution and limited its budget. In response to alleged government crimes being investigated by the ICC, some states, like Burundi and the Philippines, have frustrated the ICC’s ability to investigate crimes by withdrawing their membership from the Court. Others, including the United States, have waged sophisticated campaigns to undermine the institution’s standing and authority.

In this context, the recent commitment of the Court and many of its member states to investigate and prosecute those responsible for mass atrocities following the Russian invasion of Ukraine is welcome. Numerous capitals have offered not only unprecedented financial support in the form of voluntary donations, but also their own investigators to help the ICC in its probe. Never before in the Court’s history has it enjoyed such tangible support. Even Washington has spoken positively of the ICC’s role in addressing atrocities in Ukraine.

The focus on the situation in Ukraine and, in particular, perpetrators from Russia may have the effect of undermining the narrative that the ICC is singularly focused on Africa. At the same time, the Court’s welcome attention on atrocities committed in Ukraine should not distract it from contributing to justice efforts on the African continent in a manner that respects the efforts of African states to address their own atrocities and is sensitive to local contexts. It can do so by pursuing accountability itself or by working with partners to galvanise states to do the hard work of holding perpetrators to account in their own courts.

Victims and survivors of atrocities in Africa should also benefit from the advances and lessons learned in pursuing accountability in Ukraine. That includes the novel use of digital forensic investigations to catalogue and trace atrocities, the speedy domestic prosecution of international crimes by national authorities, and efforts aimed at avoiding the duplication of investigation efforts.

The need for justice and accountability in Africa is no less pressing now than it was before Russia’s invasion of Ukraine, and the ICC has a role to play and has room to improve. Consider the following snapshot.

Since the United Nations Security Council referred the situation in Darfur, Sudan to the ICC in 2005, the Court has only detained and initiated the trial of one accused, Ali Muhammad Ali Abd-Al-Rahman. Despite the fall of the regime of former authoritarian President Omar al-Bashir in 2019 and ongoing allegations of atrocities against Sudanese civilians and demonstrators throughout the country, the Court has said it will only prosecute crimes committed in Darfur. Rumours have persisted that authorities in Khartoum might transfer a to The Hague, where he faces charges of war crimes, crimes against humanity, and genocide, but that has not happened. Meanwhile, atrocities continue to be committed in Darfur.

In the wake of the Arab Spring revolution and the 2011 civil war in Libya, the country has been in turmoil, with sharp geographical divisions and many areas being ruled by the barrel of the gun more than by the rule of law. In 2011, the ICC issued three arrest warrants, including one for Muammar Gaddafi’s son, Saif al-Islam Gaddafi, who is not only enjoying impunity but attempting a run for president. Other warrants have been issued since 2017, but a decade after the ICC started its investigation, not a single perpetrator has been prosecuted in The Hague for atrocities committed in the country.

Nigeria’s war against Boko Haram may have subsided from its most intense levels, but violence persists, and thousands of suspected Boko Haram fighters had been held for years in detention without trial. The ICC has concluded its preliminary examination into the situation in Nigeria and found that there are reasonable grounds to believe that both Boko Haram and the Nigerian military have committed war crimes and crimes against humanity.

There are other situations across the continent where demands for justice have not been met. Guinea, Ethiopia, Burundi, South Sudan, and Uganda are all contexts in which atrocities have been committed, but justice efforts have fallen short.

The ICC is not a complete answer to impunity for atrocities in Africa. As its chief Prosecutor Karim Khan has affirmed, it is “not the top of the pyramid”; but a court of last resort, active only where states can’t or won’t prosecute atrocities themselves.

It can only ever do so much and regularly faces aggressive campaigns from self-interested states defending themselves from the Court’s scrutiny. But the ICC is part of a wider network of institutions capable of delivering a modicum of justice for international crimes.

For two decades, critics insisted that the ICC treated African states like a “laboratory” in which to practice the investigation of international crimes. The Court is now focused, more than ever, on events outside of the continent. That is an important development and will hopefully lead to the ICC’s gaze being more evenly distributed. But the Court still has a role to play in African states where mass atrocities have been committed. It should flip the script, and take the lessons learned in Ukraine to help deliver justice in Africa.