Following his 2017 joint venture with Sudanese President Omar Bashir to confront the International Criminal Court (ICC), Rwandan President Paul Kagame has repeated his harsh criticism of that court for what he says is an open bias against Africa. In an interview with Al Jazeera, Kagame has said that the court has failed to dispense justice anywhere else.
“The ICC was supposed to address the whole world, but it ended up covering only Africa,” Kagame said on Saturday at a meeting with British-Sudanese telecoms tycoon and philanthropist Mo Ibrahim in Rwanda’s capital, Kigali.
“At the court’s inception, I said that the basis on which it was set up and the way in which it was going to be used was fraudulent. I told people that this would be a court for trying Africans, not people from across the world. And I don’t believe I have been proven wrong.”
The ICC was established to prosecute and punish individuals for genocide, crimes against humanity, war crimes and crimes of aggression. It has had 10 investigations since its inception, nine of which have centred on Africa. The five convictions that stemmed from these investigations were of nationals from the Democratic Republic of Congo, Central African Republic and Mali.
“There are many people across the world who should be tried by the court,” Kagame said. “Some leaders from African countries who are being tried by the ICC, whatever they are being tried for, have committed [their crimes] in partnership with other countries – which the ICC do not try.”
It is no wonder that a number of African countries have threatened or announced plans to withdraw from the ICC over what has been termed its “disproportionate targeting” of the continent.
While the Office of the Prosecutor of the ICC has received information on alleged abuses in other parts of the world, such as Iraq, Venezuela, Palestine, Colombia and Afghanistan, it has decided not to open investigations into those situations or has kept them under preliminary examination in order to make a determination on whether to proceed with an investigation.
The flip side
On its web forum, supporters of the court say this focus on Africa is “for good reason”. They argue that, firstly, many situations of concern do not fall within the ICC’s jurisdiction, given that its jurisdiction is limited to crimes committed after July 2002. The ICC can prosecute charges of war crimes, crimes against humanity and genocide only if they apply to a territory, state party or state that declared its acceptance of the ICC’s jurisdiction to begin with.
Secondly, investigations into African situations are opened at the request or with the support of African states. Three of the current cases were self-referred and two have been referred by the Security Council.
Thirdly, it has been argued that the African cases under investigation or prosecution are differentiated by their gravity, for example, 2,5 million victims in Darfur, 2 million in the DRC and 1,3 million in Uganda.
It seems that the definitive answer on whether or not the ICC has a disproportionate bias is not that simple. It depends on the interpretation of the relevant provisions of the Rome Statute that established the court, views regarding the purpose and the mandate of the ICC, and a range of practical considerations.