The referral of the situation in Darfur to the ICC, with the warrant of arrest for sitting President Al-Bashir as a result of it, has become the main reference for Africa’s growing frustration with the ICC. The strenuous relations of the continent with the Court have further come under pressure when the ICC charged Kenya’s President Uhuru Kenyatta with crimes committed during elections.

The case against Kenyatta has, however, been dismissed and is no longer a constant reminder of tension while the warrant of arrest against Al-Bashir will not disappear. Those two cases in particular make Africa argue that the working of the ICC is flawed and that the Court is biased towards African leaders while leaving other world leaders untouched for their alleged crimes against humanity.

It is unclear how Africa and South Africa, in the wake of the recent Al-Bashir crisis, will further manage the relationship with the ICC. At times, the call goes out to withdraw all-together from the Court; at times, leaders seem to prefer consultations and possible re-negotiation of their adherence.

When judging the ICC, it is necessary to consider the Court’s relationship with Africa from all sides, even more so since African countries were staunch supporters of the ICC when it was established in 1998 and its Statute, the Rome Statute, entered into force in 2002. Withdrawing from the Court would leave a vacuum of justice in the absence of an African Court especially competent to prosecute war crimes, crimes against humanity and genocide. This vacuum would be even more felt in the absence of political will to intervene in grave circumstances such as provided for in Article 4(h) of the AU’s Constitutive Act or to take action in response to recommendations by the African Commission on Human and Peoples’ Rights after, for example, its visit to Darfur in 2004.

It is true that, so far, only African Heads of State have been taken to the ICC. This is, however, not the full truth and it is, therefore, not very convincing to argue that the ICC is biased towards Africa. It is true that the Presidents of four countries, Libya, Sudan, Kenya and Cote-d’Ivoire have been indicted by the ICC, charged with serious crimes, but it is also true that other African countries have relied on the Court to combat rebellion and civil war and to fight crimes against humanity on their territory. This part of the truth is seldom mentioned by those who want to break with the ICC.

It is true that President Al-Bashir of Sudan has been charged by the ICC with crimes against humanity at the request of the United Nations Security Council (UNSC), but it is also true that President Museveni of Uganda has referred the situation in his country to that same ICC in the face of horrendous crimes committed by the Lord’s Resistance Army (LRA). Sudan condemns the Court; Uganda refers to it.

It is true that President Kenyatta from Kenya had been charged by the ICC with crimes committed during the electoral process in his country before those charges were withdrawn. But it is also true that Cote-d’Ivoire only recently, in 2013, ratified the Rome Statute, enabling the ICC to prosecute crimes during elections which outgoing President Laurent Gbagbo has been charged with. In both situations, it was the ICC’s Prosecutor who initiated the investigation on the basis of information received from individuals and organizations and authorized to do so by the ICC’s Trial Chamber. Kenya condemns the Court for bias; Cote-d’Ivoire joins the Court for justice.

Faced with a devastating rebellion, Mali referred the situation in its territory to the ICC in July 2012, at a time when the Court had already come under heavy fire in Africa. Mali relies on the ICC to protect its population against crimes against humanity and to save the country’s, and North Africa’s, rich cultural heritage. At a time when Africa was already seriously turning against the Court, the African Ministers in charge of world heritage properties issued, on 26 September 2012 in Johannesburg, at a colloquium celebrating the 40^th anniversary of the World Heritage Convention, a Declaration supporting Mali’s cooperation with the ICC to prosecute perpetrators of destruction and illicit trafficking of cultural heritage.

The Court and its Prosecutor do not decide autonomously which situations of grave crimes to investigate. They are bound by the provisions of the Rome Statute and by a process of pre-trial hearings such as those authorizing an investigation or confirming the charges against an accused. These processes limit politicization of trials and bias in the selection of situations to investigate.

The Court only deals with situations that have been referred to it, either by Member-States or by the UNSC. The Office of the Prosecutor can also initiate its own investigation in a situation, such as in Kenya and Cote-d’Ivoire, based on information received from individuals and organizations and after having been given authorization to do so during pre-trial hearings.

In situations referred to the ICC by Member-States or investigated at the initiative of the Prosecutor, crimes need to have taken place in the territory of a Member-State or committed by a national of a Member-State. This requirement does not apply in situations referred to the Court by the UNSC, such as Libya and Sudan. This explains why the President of a country that is not a Member-State of the ICC, such as Sudan, can have a warrant of arrest issued against him.

So far, four situations of grave crimes against humanity have been referred to the Court by African States: Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR) and Mali. Two situations, Darfur (Sudan) and Libya, have been referred to the Court by the UNSC. Two situations, namely Kenya and Cote-d’Ivoire, have been brought to the attention of the Court by individuals and organizations and have led to an investigation at the Prosecutor’s initiative.

The referrals of the situations in Darfur (Sudan) and Libya as well as the investigations into Kenya and Cote-d’Ivoire have drawn most controversy amongst African leaders because they involve sitting Heads of State.

The situation in Darfur was referred to the ICC by UNSC Resolution 1593 of 31 March 2005, adopted by 11 of the 15 Member-States against 4 abstentions. It was a relatively straightforward decision, based on the findings of an International Commission of Inquiry and on several reports of crimes against humanity committed in that region.

Tanzania, Benin, Argentina, the Philippines, Denmark, Greece, Romania, Japan and the Permanent Members France, the United-Kingdom and Russia voted in favor. The US, China, Brazil and Algeria abstained. None voted against. Resolution 1593 was a fairly uncontested referral in substance, based on well-founded evidence and on the belief that the ICC was best placed to deal with such crimes. Algeria abstained because it preferred the AU to deal with Darfur. The US, China and Brazil mainly abstained on points of principle. The referral became only controversial later when it led towards the warrant of arrest of a sitting President, Omar Al-Bashir.

In its intervention after the vote, Benin very clearly defended the choice of the ICC, referring to the Ezulwini Consensus of 8 March 2005 in which the AU recognizes the right of the UNSC to protect a population when its government cannot or will not do so.

The argument is often used that the US readily points at African leaders for prosecution but that it shields its own from the ICC by not adhering to the Rome Statute. The US, however, even though condemning grave violations of human rights and crimes against humanity in Darfur, explained its abstention from voting for Resolution 1593 on the grounds that Washington objects to the view that the Court would exercise jurisdiction over nationals from States not party to the Rome Statute. The US, during the same intervention, moreover, expressed its preference for a hybrid tribunal in Africa rather than the ICC to deal with the atrocities in Darfur.

The situation in Libya was referred to the Court by the UNSC as one of several measures decided upon in Resolution 1970 of 26 February 2011. Contrary to the referral of Darfur where some countries abstained, all Member States voted in favor of this resolution, agreeing with Africa and the Middle-East that a referral would lead to a cessation of hostilities and a restoration of calm and stability. Resolution 1970 was, similar to Resolution 1593, a straightforward referral, based on undisputed substance. Only later did the referral become unnecessarily part of the controversy around the implementation of other measures of Resolution 1970 in the wake of the NATO-intervention in Libya.

In the case of Uganda, a warrant of arrest was issued for the top leadership of the LRA, including for Joseph Kony. Only one of them, Dominic Ongwen surrendered. The charges against him were confirmed, he is in the custody of the Court and his trial will begin in January 2016. In the case of the DRC, Thomas Lubango and Germain Katanga were convicted by the ICC and are serving sentences of respectively 14 and 12 years imprisonment. Two other accused were acquitted. The trial of Bosco Ntaganda, who surrendered in March 2013, starts in July 2015. The CAR referred the situation in the country in two stages, the first time in 2004 and the second time, with new evidence, in 2014. The trial of Jean-Pierre Bemba and four other accused will start in September 2015. The situation in Mali, which is a recent referral, has been accepted by the Prosecutor for investigation.

The cases of Kenya and Cote-d’Ivoire have been referred to the Court at the initiative of the Prosecutor. The charges against Kenya’s President Kenyatta have been withdrawn but the trial of William Ruto and Joshua Arap Sang continues. The trial of Laurent Gbagbo , the former President of Cote-d’Ivoire, and Charles Ble Goude will begin in November 2015.

Apart from these well-established cases, the Prosecutor examines situations of serious crimes against humanity in different areas around the world such as Iraq, Afghanistan, Nigeria, Guinea, Ukraine and, most recently, Palestine. Such preliminary examinations, which precede an investigation, involve a constant dialogue with local authorities and civil society in the respective countries, complementarity of justice issues, requirements of admissibility etc.

The preliminary examination of the situation in Palestine and crimes committed on Palestinian soil was opened in January this year after Palestine’s acceptance of the Court’s jurisdiction. Equally noteworthy is the reopening in 2014 of a preliminary examination into crimes committed by the British armed forces in Iraq based on new evidence submitted to the Court.

When addressing Africa’s criticism of the ICC, all sides of the issue need to be observed. The ICC may have flaws in its procedure, but they can be dealt with through consultation and, possibly, re-negotiation of adherence to the Rome Statute. The ICC’s overall objective, however, namely the prosecution of crimes against humanity, remains laudable. Accusing the ICC of bias towards Africa is not the full truth. Several African leaders have been accused of crimes by the ICC but other African leaders have referred their problems to the Court in the combat against rebellion, civil war and crimes against humanity. Some situations have been referred to Court, particularly by the UNSC, because they constitute threats to global peace and security. And, finally, not only Governments or the UNSC turn to the Court but also African citizens and organizations, as has been the case in Kenya and Cote-d’Ivoire, but also in Nigeria and Guinea and other situations around the world examined by the Prosecutor. Criticism mounts, however, as soon as ICC investigations move too close to the seats of power and do not remain confined to the more obscure and distant world of rebel leaders. DM

Jan F. Mutton is a Research Associate in Foreign Policy and Human Rights, Department of Political Sciences, University of Pretoria