n African Human Rights Law Journal - Rule of law or realpolitik? The role of the United Nations Security Council in the International Criminal Court processes in Africa

Volume 17 Number 1
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



At its inception in 1998, the International Criminal Court was perceived as a permanent solution to the problem of lack of accountability for past crimes. Despite their initial excitement about the Court, the African Union and its state parties have made an about-turn and they now seek an African solution to Africa’s problem of impunity. Central to this ICC-AU collision is the role played by the United Nations Security Council in the Court’s processes. The UNSC has failed to apply the doctrines of referral and deferral equally. According to the AU, it has selectively exercised its referral powers with respect to African-based situations, yet heinous crimes committed in other areas go unnoticed. The UNSC has also been selective in the recognition and waiver of immunities for international crimes in favour of the interests of its permanent members. While it is a reality that international criminal justice operates in an environment instilled with politics, such politics seldom reflect Africa’s interests. These factors have heavily compromised the legitimacy of UNSC’s role in the Court processes. Thus, in its own legal framework, the AU asserts that its heads of state enjoy absolute immunity from prosecution. This position, however, is problematic for several reasons. For example, how does one reconcile a state’s obligations under the Rome Statute, which abhors immunities, and that of the Malabo Protocol, which upholds immunities? Second, the Malabo Protocol lacks a clear distinction between immunity ratione personae and immunity ratione materiae. The Protocol also is not clear on the nature of its immunity ratione materiae. However, although the AU and its member states are vehemently opposed to impunity, it does little to combat the vice. It is in this context that the article critically analyses the role of the UNSC in the processes of the ICC and how this has impacted on Africa’s perception of the Court.

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