Author: Jusu Kamara
Abstract
The relationship between the International Criminal Court (ICC) and Africa has generated intense scholarly debate grounded in international criminal law, postcolonial theory, and global governance scholarship. Although the ICC was established as a universal and impartial institution to prosecute genocide, crimes against humanity, war crimes, and aggression, Africa has become the primary site of its investigations and prosecutions. Supporters contend that the Court delivers essential justice where domestic capacities remain weak, while critics argue that its practices undermine sovereignty, reflect structural inequalities in the global order, and reproduce neo-colonial patterns of intervention. This paper interrogates the historical foundations of African engagement with the ICC, evaluates justice and sovereignty claims through case studies of Kenya, Sudan, and the Democratic Republic of Congo (DRC), and analyzes the broader political economy of international criminal accountability. It concludes with reform proposals aimed at reconciling international justice with sovereign equality and African agency.
Introduction
The International Criminal Court (ICC), created through the Rome Statute in 1998, represents the first permanent international tribunal mandated to prosecute individuals for atrocity crimes (Cassese, 2013). While the Court was envisioned as a universal and impartial guardian of accountability, its operations have disproportionately concentrated on African situations spurring an extensive literature on law, politics, and postcolonial global governance (Mills, 2015; Ssenyonjo, 2017). African states were among the ICC’s strongest supporters during its formation, and Africa remains the most heavily represented region among State Parties (Schabas, 2011). Yet, as the Court’s prosecutorial decisions increasingly targeted African conflicts and political leaders, a counter-narrative emerged: that the ICC may undermine sovereignty, selectively administer justice, and reflect global power asymmetries (Mamdani, 2009; Murithi, 2017).
This paper addresses two central questions:
1. Does the ICC deliver meaningful justice to African victims?
2. Does the ICC undermine African sovereignty and reproduce unequal global power relations?
By situating these questions within historical, legal, and political contexts, the paper offers a balanced assessment of the ICC’s impact on Africa.
Historical Background
Africa played a decisive role in the establishment of the ICC. Thirty-four African states ratified the Rome Statute more than any other region reflecting widespread continental support for ending impunity in contexts of weak institutions and recurring civil conflict (Du Plessis, 2016; Schabas, 2011).
However, optimism gradually eroded. Nearly all early ICC situations involved African states, whether through self-referrals (e.g., Uganda, DRC, CAR), UN Security Council referrals (e.g., Sudan, Libya), or proprio motu investigations (e.g., Kenya). As a result, African Union (AU) summits repeatedly criticized the ICC for perceived bias, leading to discussions of mass withdrawal and proposals for alternative continental justice mechanisms (Nkansah & Domfeh, 2018).
This shift from partnership to suspicion reflects broader debates about the legitimacy of international criminal law in postcolonial contexts (Branch, 2017).
Justice: The Case for the ICC in Africa
Supporters argue that the ICC fills critical justice gaps in countries where domestic judicial systems lack capacity, autonomy, or political will.
1. Accountability in weak or politicized legal systems
In states emerging from civil war such as the DRC, CAR, and Uganda domestic institutions often cannot prosecute powerful armed actors. The ICC’s intervention in the DRC, culminating in the Lubanga conviction for conscripting child soldiers, established an unprecedented international precedent that reinforced norms against child recruitment (ICC, 2012; Drumbl, 2012).
