The African Quest for an Alternative to the International Criminal Court at The Hague

The International Criminal Court (ICC) has been active in sub-Saharan Africa. Seven investigations have been launched in Uganda, Kenya, Sudan, the Central African Republic, the Democratic Republic of Congo, Ivory Coast, and Mali. Four prominent Kenyan politicians are due for trial in The Hague in April 2013. One of them, Uhuru Kenyatta, is a leading candidate in the upcoming Kenya presidential elections. Should he win, the new Kenyan head of state would start his term under ICC indictment. About half of sub-Saharan Africa accepts ICC jurisdiction. The United States does not.

Many Africans resent the ICC as a “foreign” entity and accuse it of bias against the continent. They express concern that all present ICC indictments involve Africans–there are none from any other part of the world, though there have been in the past. Hence African interest in enlarging the jurisdiction of the African Court on Human and Peoples’ Rights so that it can try individuals for the mass crimes over which the ICC currently exercises jurisdiction. Many hope that such an African court would eventually replace the ICC.

Yet, some Africans are wary about whether an African court would show the willingness of the ICC to try and convict African leaders in light of the longstanding tradition of African leaders protecting each other. Others are concerned about the costs of establishing a new tribunal, especially in face of the ICC’s own current financial difficulties. Still others are exploring the possibility of an African court that would supplement, but not replace, the ICC. But, it remains unclear whether there is sufficient support for the establishment of an African alternative. The issue will likely fester for some time to come.

Of the current serving ICC judges, seven are from Western Europe, six are from Africa, five from Latin America, three from Asia, and three from Eastern Europe. The position of prosecutor is high-profile.  The current prosecutor is Fatou Bensouda of Gambia, who succeeded Luis Moreno Ocampo of Argentina last year. Bensouda’s first formal investigation was launched to look into atrocities committed in northern Mali over the past year.