Assessing the effectiveness of the international criminal court in prosecuting war crimes in Africa

Abstract

The study is an analysis of the effectiveness of the International Criminal Court (ICC) in prosecuting war crimes in Africa. Given that the ICC was the Court established, among others, to prosecute war crimes as a crime of grave international concern, the study examines whether the Court has effectively played this role in Africa. Anchored in the Third World Approaches to International Law (TWAIL) and Sovereignty theories, the study analyzed the evolution of war criminal prosecution, the peculiar nature of war crimes manifested in the African conflicts and the hinderances to the ICC prosecution efforts. These informed, in a TWAIL lens, the questions of how war criminal prosecution has evolved over time, informing the inception of the ICC, what the ICC mandate is and how TWAIL perceived such mandate; and finally, how TWAIL and sovereignty exacerbate the challenges inhibiting the ICC prosecution efforts of war criminals. To achieve the overall objective, the study used qualitative research design, specifically a doctrinal in-depth analysis, extensively examining the existing legal literature, statutes, treaties, case law, and official reports related to the International Criminal Court (ICC) and its engagement in prosecuting war crimes globally and specifically in Africa. Thematic analysis was the main approach adopted in an effort to match the data with the challenges affecting the Court’s prosecution role, involving identification, organization and interpretation of patterns and themes. There were five major themes, namely: state sovereignty, states parties' cooperation with the ICC, the principle of complementarity under the ICC dispensation, jurisdiction of the ICC and immunity under international customary law in the face of ICC arrest warrants as pertinent issues underlying the ICC prosecutions. This analysis allowed the researcher to draw connections between legal principles, identify recurring patterns and gain a comprehensive understanding of the ICC's engagement in Africa. The findings were that not even TWAIL scholarship, for it had drawbacks, nor the Rome Statute have the solution to the underlying challenges to the ICC mandate, the problem being deeply entrenched in the geopolitical divide. Despite the international efforts to curb impunity for war crimes, a gap still persists. This study is an addition to the existing literature on the effectiveness of the ICC, adopting a TWAIL approach intertwined with sovereignty.