The International Criminal Court (ICC) was established on 17 July 1998, at the Diplomatic Conference of Plenipotentiaries in Rome. It was at this conference that 120 countries affirmed their commitment to the fight against war crimes, crimes against humanity, genocide and crime of aggression. The legal document popularly known as the Rome Statute came into force on the 1st of July 2002, after its ratification by 60 countries. Coming into force means that only crimes committed after the 1st of July 2002 falls under the jurisdiction of the Court.

In the pursuit of justice in Africa, the ICC has been entangled in a wave of political controversies. To some African political elites, championed institutionally by the African Union (AU), the Court is a neo-colonial tool in the hands of the Western powers to keep African leaders in check.

Their argument is based on the fact that out of the 27 cases in 11 situations before the Court, 10 situations are from Africa while there are grave crimes worth prosecuting outside Africa. This single story has also found reception among academics, legal practitioners, independent analysts etc. The danger of this single narrative is that it stifles the support the ICC needs from stakeholders from Africa to ensure justice for victims of grave crimes that touches our common humanity. People who also subscribe to this narrative are victims of academic and socio-political bandwagon.

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This article therefore intends to deconstruct this double standards accusation by analyzing their arguments one by one.

The first being that the ICC was shoved down the throats of Africans. This is at best an academic fallacy. The Court received tremendous support from Africa in its formative years. Africa participated fully at the Rome Conference during the drafting process and went through to its ratification. Out of 120 State Parties to the Rome Statute, 34 are African states making them the largest regional grouping on the Assembly of State Parties. Senegal was the first state to ratify the Statute on 2 February 1999. So the argument that the Court was imposed on Africa is false and simplistic.

The second argument is that the Court has focused exclusively on prosecuting only individuals from Africa. Situations comes before the court in three ways: state-referral, United Nations Security Council (UNSC) referral, and from the Office of the Prosecutor propio motu. What the proponents of this narrative fails to accept is the fact that four cases from Central African Republic, Uganda, Democratic Republic of Congo and Mali were all referred to the ICC by the aforementioned countries. Ivory Coast is not a state party but requested the assistance of the Court. The Uhuru Kenyatta case of Kenya and Burundi were the only cases initiated by the prosecutor.

Sudan and Libya were referred to the Court by the UNSC. So is it the fault of the International Criminal Court that Western countries have competent judicial system and are willing to prosecute their citizens without referring their situations to the Court, or is it the fault of Western countries that Africa doesn’t have capable and willing judiciary to prosecute criminals in their domain without referring them to the ICC? These are the pertinent questions objective analysts need to ask instead of jumping on the bandwagon of accusing the ICC of double standards.

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Another argument are the usual questions that why were Tony Blair and George Bush not prosecuted for their roles in the Iraq invasion of 2003, why is Israel still bombing schools, hospitals and homes in Palestine, why is Bashir of Syria still killing his people with gas, an why Saudi Arabia has not been indicted for the war crimes in Yemen? I laugh because most of these questions are coming out of sincere ignorance.

For the record, USA, Israel, Syria, Yemen, Saudi Arabia and Iraq are not state parties to the Statute, thus giving the Court no jurisdiction over crimes committed in their territories or outside their territories by their nationals. However, the United Kingdom (UK) is a state party, thus giving the ICC jurisdiction over Tony Blair. This is where the double standards argument may be valid. But it is interesting to note that the International Criminal Court has opened preliminary investigation into UK alleged war crimes in Iraq. So where is the double standards? It is also helpful to know that there are currently preliminary investigations by the ICC in Afghanistan, Colombia, Iraq/UK, Palestine, The Philippines, Bangladesh/Myanmar, Ukraine, and Venezuela. So you see, the ICC is not just focusing in Africa.

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At this juncture, it is pertinent to point out some salient points. First is the issue of complimentarity. The International Criminal Court operates on the principle of complimentarity. That is, it only compliment the efforts of national criminal justice systems in prosecuting atrocity crimes. It can only take up a case where the country in question is unwilling and unable to prosecute. Since the end of WW II, USA, Germany, Japan, etc have prosecuted their nationals found guilty of war crimes.

But come to Africa and show me one single criminal that have been prosecuted for war crimes, crimes against humanity or genocide despite the heinous crimes being perpetrated in the continent since independence. T he second is the issue of jurisdiction. The International Criminal Court can prosecute individuals from member states only and crimes committed in the territory of a member state. Most of the crimes outside Africa does not fall under the jurisdiction of the International Criminal Court.

Last but not the least is the question of gravity (wait for another article on gravity alone). The ICC doesn’t just prosecute any crime. It has to be grave in casualties, systematic in nature and widespread. Syria and Yemen are contemporary cases of gravity, but they are not state parties to the Rome Statute, and the UNSC has refused to refer these cases to the ICC. So if any accusation of double standard, it should be directed to the UNSC and not the ICC.

To this end, it will be unfair to keep peddling this double standards narrative against the ICC without looking at the legal and moral facts before us. As someone who has followed closely the work of the Court in Africa and beyond, I can authoritatively say that this accusation is propagated by African political elites in a save-face adventure to discredit a Court they thought they will use to witch-hunt political opponents.

Regrettably, they are gaining sympathy from Africans who don’t want to liberate themselves from the 21st century neocolonialist thesis. Africans need to wake up and take responsibility and stop blaming the countries of the North for their woes. Colonialism has passed, the Asian Tigers have moved on, but Africa still doesn’t have formidable and independent legal institutions to prosecute international crimes. Until that happens, the International Criminal Court has just started in Africa.

Nucha Gambo David is a graduate researcher at the Institute of Peace and Strategic Studies, University of Ibadan, Nigeria. He is passionate about international relations, diplomacy and law.

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