The African Union vs. the International Criminal Court: Where Should African Victims Seek Justice?

The African Union's hostility toward the ICC stands to benefit perpetrators of crimes; the losers will be the millions of victims in Africa.
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At the end of May, the African Union celebrated its 50th anniversary. At the end of the Union's three-day summit held in Ethiopia, members accused the International Criminal Court (ICC) of being racist and going after African leaders in 99% of the cases it is investigating.

Africa is suffering immensely from ongoing conflicts throughout the continent. Mali, the Democratic Republic of Congo (DRC), the Central African Republic, Sudan, Libya, Somalia, South Sudan, Kenya, Burundi, Nigeria, and others all have long-simmering conflicts. Millions of victims are suffering from atrocities that are caused or exacerbated by these conflicts: AIDS, child recruitment, rape of women and girls, killings, torture, disappearance, looting, maiming, etc.

The African Union (AU) is an important political body in Africa, playing a crucial role in peace building and security, largely by mediating conflicts. This task has not been easy, and but there have been successes including in Burundi and Comoros.

But the AU has failed on other fronts including fighting poverty, establishing democracy, ensuring security, and ending conflict in countries such as Somalia and Sudan.

The AU, like many of us, wishes to have a peaceful Africa where there is rule of law, democratic values are respected, civilians are protected and participate in decision-making in their countries, where security is guaranteed, and justice accessible and effective. There's no way the AU can expect to achieve this without other forces to complement their work.

The International Criminal Court (ICC) was created to end impunity for perpetrators of war crimes and to ensure justice is served for victims. At the moment most of the suspects at the court are from Africa. What African victims wouldn't be happy to see perpetrators brought to justice? Does it matter where perpetrators are taken into custody and tried if justice is served for victims?

I believe the recent hostility shown by the AU towards the ICC is unfair. The Rome Statute clearly states that the ICC is an independent, fair and effective jurisdiction. I offer an example from my home country of the Democratic Republic of Congo to illustrate.

When I look at the conflict in eastern DRC, victims and citizens lack faith in the Congolese justice system because it is weak and doesn't have a structure to deal with international crimes. The video below features the plight of child soldiers in eastern DRC. Without the ICC's recent trial of and guilty verdict declared against Thomas Lubanga, none of these children and their families would have seen justice served.

Another example is the violence that occurred after the Kenyan presidential election in 2008. Kenya was unable or unwilling to effectively prosecute the crimes committed during the post-election violence. Uganda, after decades of conflict, has been unable to deal with the Lord's Resistance Army, despite heinous crimes committed by them. In Darfur, thousands of people were killed by the Bashar regime and Darfuri victims didn't see any prospects for justice whatsoever.

The African Union, if it is really concerned about justice in Africa and wants lasting peace on the continent, would do better to collaborate and support the ICC in its mandate. However, the ICC itself cannot completely end impunity for perpetrators of crimes in Africa. The future of fighting impunity lies in the hands of domestic jurisdictions, and the ICC can help by exercising its principle of complementarity. This gives domestic jurisdictions -- or national courts -- the duty and primary obligation to investigate, prosecute and prevent international crimes. Only if states cannot fulfill their duties, should cases be referred to the ICC since it's a court of last resort.

The collaboration between the African states (domestic jurisdictions) and the ICC would effectively protect victims and justice served, and future crimes prevented because of the deterrent effect, ensuring the primacy of national jurisdiction, and domestic prosecutions strengthened.

The AU's hostility toward the ICC stands to benefit perpetrators of crimes; the losers will be the millions of victims in Africa.

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