African nations played a key role in the genesis of the International Criminal Court – indeed, the first state to ratify the Rome Statute was Senegal. Five ICC judges, including the vice president, Sanji Mmasenono Monageng (who is from Botswana), are African, as is the current Prosecutor, Fatou Bensouda (from The Gambia).
However, a chorus of disapproval has grown from members of the African Union (a grouping of the vast majority of African states) following a number of controversial indictments of African leaders. Omar al Bashir, president of Sudan is indicted by the ICC for war crimes, crimes against humanity and genocide, but has not been captured for trial despite visiting a number of ICC member states, including some African states who have simply refused to hand him over. More recently, things came to a head over the ICC’s actions against the sitting president and vice president of Kenya, Uhuru Kenyatta and William Ruto, over allegations of crimes against humanity in violence that followed on from the disputed 2009 Presidential election.
The idea of an African Criminal Court is not new, and was first mooted in 2004. In 2012, it was planned that the African Court of Justice and African Court on Human and People’s Rights , two courts run by the African Union that not all states have signed up to and have a low case load, merge in to one court which would also try criminal cases. However, few countries have signed or ratified the appropriate treaties and the courts being merged get little, if any, use. This has not yet materialized.
A regional criminal court could cover either the three varieties of crime covered by the ICC – genocide, war crimes and crimes against humanity – or a broader pool, possibly including drug trafficking, coups and/or corruption.
 Odinkalu, Chidi, “Concerning the Criminal Jurisdiction of the African Court – A response to Stephen Lamony”, African Arguments, 19 December 2012, http://africanarguments.org/2012/12/19/concerning-the-criminal-jurisdiction-of-the-african-court-%E2%80%93-a-response-to-stephen-lamony-by-chidi-anselm-odinkalu/
 Xinhua, “Africa to create continental court”, The Sunday Times (Rwanda), 15 July 2012, http://www.newtimes.co.rw/news/index.php?i=15054&a=12428
All of the ongoing ICC prosecutions are based on events in Africa, and all those on trial are Africans.
The ICC has not brought actions following the invasion of Iraq, or the conflicts in Sri Lanka and Colombia. The lack of action in any matter outside sub-Saharan Africa shows that the international community are happy to allow the ICC to exclusively prosecute Africans. The UN Security Council, which contains no African permanent members, can veto any possible prosecution and refer a case to the ICC..
Replacing the ICC with an African Criminal Court would stop this bias, or perception of bias. This would be done by withdrawing from the Rome statute and the ICC which has been labelled as Western imperialism by people such as Rwandan president Paul Kagame.
 Rome Statute, Article 16
 Rome Statute, Article 13
 Du Plessis, footnote 36 (dead links)
Almost all of the cases where people have been indicted before the ICC – DR Congo, Uganda, Central African Republic and the Ivory Coast – have been referred to the court by African nations themselves. Those that have not were referred to the UN Security Council. The only case where the Office of the Prosecutor started a case leading to incitement was the Kenya case, Kenya having signed and ratified the Rome Statute. The ICC can only act where it has jurisdiction - it is not a kangaroo court for particular cases.
The ICC has looked in to cases outside Africa, including in Afghanistan, Honduras, the Mediterranean sea (an Israeli attack on Comorosian, Greek and Cambodian ships), Korea, Colombia, Georgia and Palestine.
 Rome Statute, Article 22
 Office of the Prosecutor, Report in to Preliminary Examination Activities, 2013, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases...
A regional court would be a good way to balance the competing issues between the legitimate concerns of the African states and the International Criminal Court.
It would be able to provide an African solution to African problems, with no accusations of external interference or colonialism. Similarly, it would have some of the advantages of the ICC particularly its independence from individual states, meaning those in high places are more likely to be held to account. With this accountability to an African court there would be an impression of being held to account by peers not outsiders.
African states have been happy with the ICC in the past – they referred ICC cases to the court themselves.
If African states were to set up their own court, it would be unclear how it would work with the existing framework of the ICC as some African states may wish to remain ICC members. Also, a regional body would still lead to allegations of a “foreign court”, while at the same time placing the decisions in the hands of judges who may be less insulated from regional geopolitical pressures.
The balance between peace and justice is a complex issue. The ICC has disregarded peace as a priority in cases, focusing exclusively on justice by indicting individuals, which reduces the diplomatic leeway and drives those indicted towards a bunker mentality. The result then may be the conflict goes on longer and more crimes are committed. Peace and preventing future crimes should come before justice for past crimes. The ICC have focused on prosecuting Omar al Bashir, but it may be a better option to focus on diplomatic alternatives to trials for dealing with the conflict in Darfur.
There isn’t such a balancing act – without justice there cannot be peace as it is simply likely to lead to attempts at retribution or vigilante justice. Justice is a universal value, an end in itself. It is not something that can be given away as a bargaining chip.
It has been suggested that offences such as “unconstitutional change of government”, drug trafficking, piracy and corruption should be added to the jurisdiction of an African Criminal Court.
The ICC is limited to only a small number of crimes. However, an African Criminal Court could not only deal with the existing crimes, but create pan-African solutions in terms of dealing with a number of issues where Africa needs particular solutions.
An ACC could deal with piracy off the coast of East Africa, where there is no effective court system, due to Somalia amounting to a failed state. Similarly, “unconstitutional change of government” prosecutions could amount to a deterrent to coups.
IRIN, “Analysis: How Close is an African Criminal Court?”, IRIN (Integrated Regional Information Networks), 13 June 2012, http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-cr...
Drugs trafficking was considered as a role for the ICC, but rejected as unworkable – an ACC would face the same problems. “Unconstitutonal change of government” would be open to rampant political abuse, allowing existing governments to cling on to power.
No other supranational regional body has tried having its own prosecution system or criminal courts – not even the European Union. Regional bodies can – and should – have courts to deal with treaty interpretation or human rights treaties, but regional criminal courts are a major step into the unknown. Criminal cases are best served by one nation, or all of them – not a regional bloc with its own tensions.
Part of the calls for an African Criminal Court are based on the perception that the national sovereignty of African nations is being attacked in some way before the International Criminal Court.
However, an African Criminal Court would be just as much of a violation of the sovereignty of individual African nations as the ICC; it is a system of courts outside the control of the nation of those it is trying.
European states object to courts outside their control dictating even when they are regional courts – consider the reactions to the European Court of Human Rights on areas like voting for prisoners or to the European Court of Justice. That these are regional not global courts makes little difference to national opinion. It is no surprise then that not even the EU with its close relations has attempted a supra national criminal court system.
By being a court for the African continent by the African continent, there will not be room for allegations of imperialism and/or racism that already exist against the International Criminal Court.
In addition, the African states that are members of the International Criminal Court have chosen to do so – it is not a violation of state sovereignty for a state to voluntarily sign a treaty even if that treaty restricts the actions of future governments.
Depending on how the treaty is drawn up, an African Criminal Court could be open to abuse. If it has too broad powers, it could lead to political trials thanks to judges following orders from their domestic governments, and complaints to it by governments in diplomatic spats rather than actually resolving serious international criminal law crimes.
The same disputes that exist now within the ICC over issues such as interference with national sovereignty could just be replicated on a smaller scale – but rather than resembling a failure of any international body, it would be a regional body and lead to greater problems. If the ICC indicts a leader there is anger at the international community, if an ACC does the same there is a split in the AU.
If it is a damp squib, so be it – other international organizations have fallen in to disuse – UN institutions that only exist on paper such as the Trusteeship Council are not doing any harm and there would be the fallback of returning to the ICC if things go wrong.
The sole motive for the anti-ICC arguments raised by organizations such as the African Union is a drive towards impunity – particularly for heads of state. The prosecutions of Uhuru Kenyatta and Omar al-Bashir, so viciously opposed by the AU, are a show that heads of state are and should be subject to the international criminal law – a principle that dates back to Nuremberg.
An African Criminal Court would simply be granting African leaders’ carte blanche to perform crimes against humanity, as there would be a ready-made court to acquit them.
An African Criminal Court instead of African ICC membership would not lead to impunity – just more local courts. The principle of complementarity, allowing national courts to take appropriate action – is already enshrined in the ICC. In a particularly bad case, the UN Security Council could still refer a situation to the ICC.
Running an African Criminal Court in tandem with the ICC would allow another layer of regional justice to bring the Nuremberg precedent – leaders held criminally responsible for criminal actions – in to fruition in Africa.
International trials are expensive – 14% of the AU’s annual budget for an ICC trial.
The ICC is cheaper than the cost of the tribunal system – the cost of the Charles Taylor trial was roughly two and a half times that of the $20M figure for ICC trials. Africa already contributes little to the budget of the ICC. The ICC will be cheaper than standalone tribunals thanks to economies of scale.
The African Union has a track record of failures as well – NEPAD, the New Partnership for African Development tried to have a quasi-judicial element aiming to create rulings against corruption, but failed.
 IRIN, “Analysis: How Close is an African Criminal Court?”, IRIN (Integrated Regional Information Networks), 13 June 2012, http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-criminal-court
Peace is cheaper than war – however much a court case costs, in both human lives and money, it is better for there to be a trial.
Even if it is more expensive, justice is priceless – it is not something that can be subjected to cost-benefit analyses or bean counting.
The reason why Western countries fund the ICC is not some form of imperialism – simply a desire for global peace, justice and security so they would likely be willing to keep paying much of the cost.
du Plessis, Max, “The International Criminal Court that Africa Wants”, Institute for Security Studies, August 2010, http://www.issafrica.org/uploads/Mono172.pdf p vii
Editorial, ‘African Criminal Court Not Viable’, the Star, 17 July 2012, http://allafrica.com/stories/201207180064.html
IRIN, “Analysis: How Close is an African Criminal Court?”, IRIN (Integrated Regional Information Networks), 13 June 2012, http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-criminal-court
Odinkalu, Chidi, “Concerning the Criminal Jurisdiction of the African Court – A response to Stephen Lamony”, African Arguments, 19 December 2012, http://africanarguments.org/2012/12/19/concerning-the-criminal-jurisdiction-of-the-african-court-%E2%80%93-a-response-to-stephen-lamony-by-chidi-anselm-odinkalu/
Office of the Prosecutor, Report in to Preliminary Examination Activities, 2013, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF
Xinhua, “Africa to create continental court”, The Sunday Times (Rwanda), 15 July 2012, http://www.newtimes.co.rw/news/index.php?i=15054&a=12428