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This chapter examines the complex interplay between international judicial processes and peace. Johansen engages the debate on international judicial activism, evaluating specific cases, especially the International Criminal Court’s indictment of leaders of the Lord’s Resistance Army in Uganda. Judicial proceedings have complex consequences for a wide range of conflict issues, including negotiating ceasefires, deterring future crimes, and prospects for post-conflict reconciliation. The author proposes guidelines for employing judicial processes to promote an end to conflict, based on a utilitarian ethic that gives priority to saving as many lives as possible. The guidelines consider how to advance peace and justice not only through judicial proceedings, but also when judicial proceedings are suspended.

Chapter Five discusses the operations of The Hague-based International Criminal Court (ICC), which aims ‘to end impunity’ by punishing perpetrators of the gravest crimes known to humankind—crimes against humanity, genocide, war crimes, and crimes of aggression. Despite its promise, the court has been criticized for its overemphasis on African situations. This chapter assesses African criticisms of the ICC and their accuracy, suggesting that, although they are not always without merit, the court exists as it does today due to African requests for assistance as well as the early and ongoing support of African member states. The chapter also considers the past, present, and possible future impact of the ICC on human rights and international justice in Africa, suggesting that notable progress is being made in both inter-related areas. Finally, it argues that, as with previous eras, Africans have exerted an important yet largely unrecognized influence on human rights in recent times, in this case vis-à-vis the ICC.

In 2016, African leaders’ growing discontent with the work of the International Criminal Court in Africa culminated in the unexpected withdrawal of three African states parties from the ICC. This chapter examines several key issues connected with the three states’ notifications of withdrawal. The first part examines reasons for the filing of the withdrawal notifications. The second section analyses the likely legal and other consequences of the withdrawal notifications for states parties. In the third part, the chapter considers whether the African Court on Human and Peoples’ Rights might serve as a suitable African regional alternative or a mechanism that could be complementary to the ICC. The final section offers concluding observations, debating whether the three African states should consider withdrawing their withdrawal notifications and outlining measures that might be taken to avoid, or at least minimize, further withdrawals and to avoid conferring impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute.

The issue of the exercise of the International Criminal Court’s (ICC) jurisdiction over sitting heads of state is one of the major bones of contention in the tense relationship between the ICC and Africa. Legally, the disagreement revolves around the interpretation of the two rules of the Rome Statute, that is, article 27(2) and article 98(1), concerning the personal immunities. The Al Bashir and Kenyatta cases constitute the litmus test with which the analysis of these rules of the Rome Statute can be carried out to clarify the scope and purport of these two provisions. The Al Bashir case raises two different issues: (i) whether the same immunities preclude the ICC from exercising its adjudicatory jurisdiction over a sitting head of state of a non-member state; (ii) if this is not the case, whether the ICC member states are obliged under the Rome Statute to execute the request by the ICC to arrest and surrender him.

The chapter discusses the political and legal developments in Kenya, where President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto were until recently facing ICC indictments for their alleged involvement with orchestrating crimes against humanity. It evaluates whether the decisions of Pre-Trial Chamber II and the Appeals Chamber of the International Criminal Court authorizing the opening of an investigation and dismissing the admissibility challenge by Kenya are a turning point for the ICC in its relationship with national judicial systems in the wider fight against impunity. The chapter seeks to establish whether the decisions of the ICC Chambers limit Kenya’s primary responsibility to hold its citizens accountable. The chapter discusses the prosecutorial policy of ‘inaction’ adopted by the ICC judges and the effect of Pre-Trial Chamber II’s decision to authorize investigation in the Kenya situation based on a liberal interpretation of article 7(2)(a) of the Statute.

In June 2014, the African Union adopted the first treaty that would establish an unprecedented regional court with a combined jurisdiction over criminal, human rights, and general matters. The protocol introduced various innovations by, for instance, advancing expanded definitions of core international crimes such as genocide, crimes against humanity, and war crimes; providing for corporate criminal liability; and prohibiting the dumping of hazardous waste into the environment. The AU’s new treaty was concluded in the shadow of tensions between the International Criminal Court (ICC) and some African states and raises theoretical, legal, and policy issues with serious implications for regional and international law. This chapter draws on the lessons of international human rights law to explore the likely impact of the new tribunal on the present and future of international criminal law enforcement globally, especially given the recent purported withdrawals of Burundi, The Gambia, and South Africa from the Rome Statute establishing the ICC.

The chapter argues that some of the criticism against the use of proprio motu powers is justified, particularly in respect of selectivity, given that other situations outside Africa were not investigated in equal manner. Equally, the evidence by which the Prosecutor initiated proprio motu prosecutions was generally weak and, despite some dissenting voices, it was never turned down by the ICC’s pre-trial chambers. This is particularly interesting if one considers that the situation in Kenya, at least, was politically charged. Although the chapter largely discusses the legal contours of the Prosecutor’s proprio motu powers and their application in the two African situations, it also assesses the impact of these prosecutions on local proceedings and the potential for suffocating the investigated nations’ relations with the ICC. To avoid similar conflicts in the future, the author argues that the politicization of prosecutorial discretion could be assessed by considering comparable situations in which the Prosecutor is not attempting to proceed.

This chapter provides some context on fairness in international criminal trials. It discusses the establishment of the international criminal tribunals and the growth of international criminal procedure as a discipline. It distinguishes between international and hybrid criminal tribunals and argues that the key factor in determining whether a tribunal is international is whether its founding instrument was part of an international treaty or instrument. It analyses the nature of international criminal procedure against some key theories on the classification of legal systems, and discusses the role of judges in procedural law-making before the tribunals. It argues that, while human rights jurisprudence on the right to a fair trial cannot be ignored in assessments of the fairness of international criminal trials, such standards do not enunciate best practice, given that the jurisprudence only provides illustration on breaches of these rights and look at whether proceedings ‘as a whole’ were fair.

This chapter examines the legal and political debates concerning the presence of the accused during trial in relation to the International Criminal Court’s involvement with the Kenya situation, and the possibility of amending the relevant provision in its Rules to permit suspects to be heard via video-linked testimony. At a micro level this chapter evaluates the interpretation of ‘presence provisions’ of the Rome Statute by the respective chambers of the ICC. At a macro level the chapter is a reflection, through a description of the contestation over presence of the accused, on the role that politics can play in international criminal justice. The chapter gives an overview of the four ICC decisions regarding presence under the Rome Statute. It then goes on to evaluate these decisions given the rules of interpretation while considering the political climate. Finally, it seeks to consider the outcomes of the Assembly of States Parties’ deliberations on presence and offers some concluding remarks.

This chapter examines the ongoing process of consolidating international criminal law regimes for counteracting cultural heritage crimes, with particular focus on reparations for cultural harm. It begins with a wider panorama of international criminal law and jurisprudence in relation to cultural heritage crimes. This background outlines the limited provisions of the Rome Statute and offers some critical observations in relation to the evolving system of individual criminal responsibility for cultural heritage crimes. Second, it scrutinizes the approach taken by the International Criminal Court (ICC) in convicting Al Mahdi for the crime of intentionally directing attacks against buildings dedicated to religion and/or historical monuments. Third, this chapter considers the issue of remedies and reparations for cultural harm suffered in light of the relevant provisions of the Rome State and the practice of international human rights bodies. Next, it analyzes the approach taken by the ICC in Al Mahdi regarding the methodology of determining reparations for the international destruction of cultural heritage. This chapter also analyzes the possible reconsideration of the crime of deliberate attacks against protected cultural sites going beyond the notion and scope of war crime.

Universal jurisdiction permits states to investigate and prosecute perpetrators of certain widely condemned offences, irrespective of whether they possess any of the traditional territorial, nationality, or other jurisdictional links to the offence. As a legal principle, African states accept the principle of universal jurisdiction, but in the past decade they have pushed back against it due to the perception that the courts of various European states have unfairly targeted African government officials that they perceive as enemies. Against this background, the chapter examines the status of the universal jurisdiction debate and how it relates to the role of the International Criminal Court and that of the African Union and its member states, in addition to evaluating the proposals made by African states within the framework of the United Nations to address the African government concerns about double standards in the application of universal jurisdiction through a special ad hoc committee of the General Assembly.

Contemporary prosecutions in international criminal tribunals have exposed a long-standing debate over the role of cultural heritage-based crimes in international criminal law. This chapter presents an historical analysis that reveals that the pendulum has swung back and forth with regard to support for including offenses that expressly refer to the destruction or seizure of artistic, historic, and scientific property and of ‘historic monuments’. While cultural heritage destruction was proposed as an offense after the First World War, a pervasive reluctance to include it largely prevailed from the postwar Nuremberg trials until the late 1980s. This chapter attributes this reluctance in part to coinciding developments in cultural property protection that were occurring outside international criminal law, such as the 1954 Hague Convention and the early drafts of the 1948 Genocide Convention. Before the end of the century, though, the pendulum swung back in favor of including the deliberate and unnecessary destruction of certain cultural heritage as a discrete and separate war crime. Both ad hoc international criminal codes and the Rome Statute of the International Criminal Court reflect lasting recognition of the role that cultural heritage destruction can play in the larger narrative of oppressing, persecuting, and even eradicating targeted collective groups.

This chapter examines the development of criminal law and substantive, procedural, and relevant institutions on the African continent from antiquity to the present day. It demonstrates the existence of a well-knit and contextual criminal justice system throughout Africa, which was later infused with elements of Islamic law to serve the needs of the newly converted populations. The key characteristic of pre-colonial African criminal law is its customary, unwritten nature, with a focus on serving community rather than individual pursuits. Incarceration and punishment were unknown and instead efforts were made to compensate the victim, whose role was central to the process. This customary law served the continent until the advent of colonialism, whose protagonists enforced their conception of social control by reducing or even eliminating the application and influence of customary norms. As a result, even following decolonization, the new African nations retained colonial criminal legislation.

Our conclusion revisits the main findings in this study, but since we are hopeful that our authority framework travels to other parts of IR, we discuss extensions of and exceptions to the authority trap. For this, we both bring forth the example of the International Criminal Court, which, if anything, was not a vanilla victory. We also explore how the authority trap might work differently for non-INGOs, specifically non-state groups that use violence, and for global governance generally. What we show is that while the authority trap may be difficult to escape, it is not ironclad.