A RELATIONSHIP OF INCONVENIENCE BETWEEN THE 
INTERNATIONAL CRIMINAL COURT AND THE AFRICAN 
UNION: AN ASSESSMENT 
-U8RAftY 
MAFIKENG CAMPUS 
By CALL NO.: 
2021 -02- 0 2 
ACC.NO.: 
NORTH-WEST UNIVERSITY 
Seipelo Kgosiejang 
Student Number: 23978074 
Mini dissertation submitted in partial fulfilment of the requirements for the 
degree of 
MASTER OF SOCIAL SCIENCE 
(MA SOC.SC) 
IN INTERNATIONAL RELATIONS AND POLITICS 
AT 
NORTH WEST UNIVERSITY : MAFIKENG 
SUPERVISOR: PROF. LERE AMUSAN 
OCTOBER 2015 
Table of contents 
Declaration 
Dedication ii 
Acknowledgement Ill 
Abstract iv 
Abbreviations and Acronyms V 
Chapter One: Introduction of the study 
1. Background of the study 1 
2. Problem Statement 11 
3. Research questions 11 
4. Aims 11 
5. Objectives 11 
6. Data collection 12 
7. Method of Data Analysis 12 
8. Limitations 12 
9. Delimitations 13 
10. Scope of the study 12 
11 . Significance of the research 13 
12. Research methodology and methods 14 
13. Structure of dissertation 15 
Chapter Two: Theoretical framework and literature review 
2.1. Introduction 16 
2.2. Theoretical Framework 16 
2.3. Literature review 20 
2.3.1 . Introduction 20 
2.3.2. The situation in Sudan and ICC's case against al-Bashir 20 
2.3.3. The Kenyan situation and the ICC's case against Uhuru Kenyatta 24 
2.3.4. Proceedings of the Extraordinary Session at the AU in Addis Ababa 27 
2.3.5. The reviews of the summit and overall literature on the ICC/AU 
Relations 29 
2.3.6. The ICC/AU relationship : the way forward and future aspects 38 
3. Conclusion 40 
Chapter 3: Data analysis 
3.1. Introduction 41 
3.2. The involvement of the ICC in Africa and the response of the AU to the 
Courts efforts and a way forward 41 
3.3. Conclusion 45 
Chapter Four: Conclusion , recommendation and summary 
4.1. Introduction 50 
4.2. Conclusion 50 
4.3. Recommendations 51 
4.4. Summary of the study 53 
List of Reference 55 
Books 55 
Journals 56 
Database 57 
Non-print 59 
DECLARATION 
I, Seipelo Kgosiejang declare that this mini dissertation represents my own work. All 
references contained herein have been duly acknowledged. The research itself is the 
result of my own efforts under the professional guidance of the supervisor whose 
name appears below: 
Signature:.. . ... Date .. \. .~...-....(.t:.)..4..,.. -..2.....0.. ..\..6. .  
Seipelo 
Date ..  \.. "..-....-....4... ..-. ..l.. ..(.o.  .. .. . 
DEDICATION 
This work is dedicated to academic field of African literature in the hope of ensuring 
positive changes in the African continent. 
ACKNOWLEDGEMENTS 
First of all I would like to thank the Almighty God for giving me the opportunity to 
have an education and blessing me with the courage and the help I received in order 
to complete this project. 
I would also like to express my sincere gratitude to my family (the Kgosiejang family) 
who have always been there to support and guide me throughout my studies. Of 
particular importance is my mother Mpho Kgosiejang who has provided me with the 
opportunity to receive an education and has extended a helping hand as well as 
being a comforter, teacher and utmost blessing in my life. Another person I would 
like to thank is Glen Mokgothu who has been a blessing through this journey. I 
couldn 't have done it without his assistance, encouragement and companionship . 
The Australian High Commission as my employer has contributed enormously to my 
studies by allowing me the study leave required to complete my studies and for that I 
am eternally grateful. 
Finally, I thank the North West University for granting me this opportunity to further 
my studies and particularly for the help of my supervisor Prof. Lere Amusan for his 
continued interest, support and time in the course of my research . 
Abstract 
The African continent has cbeen at the heart of international security concerns from 
the time of independence. The continent is prone to conflict due to its hydra headed 
political instability and lack of development experienced in the individual states the in 
post-Cold War era of globalisation and liberal capitalism, instability threatens the 
entire world order and international security. In a bid to assist international law and 
justice, the International Criminal Court (ICC) was formed to prosecute perpetrators 
of the most heinous crimes against humanity, genocide, war crimes and the crime of 
aggression . The African Union (AU) and its member states were very supportive of 
the establishment of the court and contributed vastly to its formation and 
implementation. African states were hopeful of the positive impact the court would 
have on the continent, such as peace, security and stability. However, at formation 
the courts mandate was for prosecution of perpetrators of international crimes and 
the promotion of international law and justice for the victims of crimes against 
humanity. The AU as a continental political body has recently come in conflict with 
the ICC following the court's indictment of two of its member states' leaders. This 
has resulted in the volatility of the relationship between the ICC and the AU in recent 
years. The relationship has become questionable and a topic to be researched. This 
thesis therefore aims to make an assessment of the relationship between the ICC 
and the AU following the indictment of President al-Bashir of Sudan and President 
Uhuru Kenyatta of Kenya. 
Abbreviations and acronyms 
ACHPR African Court of Justice and Human Rights 
AU African Union 
CAR Central African Republic 
CIPEV Commission of Inquiry into Post-Election Violence 
DRC Democratic Republic of the Congo 
EU European Union 
GATT General Agreement on Trade and Tariffs 
ICC International Criminal Court 
ICTR International Criminal Tribunal for Rwanda 
IMF International Monetary Fund 
ILC International Law Commission 
NGO Non-governmental Organisation 
OAU Organisation of African Unity 
OTP Office of the Prosecutor 
ODM Orange Democratic Movement 
PNU Party of National Unity 
PTC Pre-Trial Chambers 
SADC Southern African Development Community 
UN United Nations 
UNSC United Nations Security Council 
WTO World trade Organisation 
_\ 
Chapter One 
1 Introduction to the study 
1.1 Background of the study 
The establishment of the International Criminal Court (ICC) is traced back to the end 
of the First World War, where the international community attempted to confront the 
indemnities that resulted from the war. In 1937 The League of Nations spoke of the 
Draft Convention on an International Criminal Court. Then there were hybrid Courts 
set up throughout the world to respond to explicitly shocking situations happening 
around the world . Courts such as the creation in 1945 of the International Military 
Tribunal , which was also known as the "Nuremberg Tribunal" by the London 
Agreement (Lee, 1999:48). The tribunal was formed to try suspected Nazi war 
crim inals and bring justice to the victims of those crimes. Later there was another 
International Military Tribunal in 1946 for the Far East when the Allied Powers of 
World War II approved the Charter for the Tokyo Tribunal to assist in the prosecution 
of Japanespe war criminals. 
The Nuremburg and Tokyo War Crimes Tribunals resolved the pre-eminent 
international criminal law issue of the mid-twentieth century (Armstead , 1998:5) . 
These tribunals addressed only a single conflict; the legal effect of the special 
jurisdiction of those Tribunals , and indeed in some quarters, the substantive rules 
applied by these Courts were not enough to address international injustices. This 
therefore left the question of permanent and consistent application of the judicial 
principles established in some doubt. 
Since the Nuremberg Tribunal , international human rights law had increasingly 
superseded the jurisdiction of the State. International law today does not allow a 
state to treat its nationals whichever way it pleases. Contemporary International Law 
has created conventions and customs that have recommended a wide range of 
human rights obligations which all countries must obey. Furthermore some of these 
human rights _standards have such a high status that their violations even by state 
officials , is considered an international crime (du Plessis, 2008: 249). Both the 
Nuremberg and Tokyo Tribunals dealt with war crimes, crimes against peace and 
crimes against humanity. Therefore, it was decided at the 1947 United Nations (UN) 
Convention of Prevention and Punishment of the Crimes of Genocide that these 
crimes would all be recognised as crimes under international law (Maurer, 2004: 2) . 
The UN General Assembly at the convention invited the International Law 
Commission (ILC) to make preparations and the ICC statute and the drafts were 
made from 1949-1954. However, because of unresolved issues and differences in 
opinions there were further delays to progress. 
In the late 1990s the ILC was invited by the UN General Assembly to continue with 
the efforts of creating an international criminal court. There were further Tribunals 
aimed at holding every individual accountable for all crimes committed . There was 
an International Criminal Tribunal that was held for the former Yugoslavia and further 
prosecutions were also made for crimes of ethnic cleansing and ethnic genocides 
committed in Rwanda. Then in 1994 the ILC had completed the draft for an 
International Criminal Court and handed it in to the UN General Assembly to discuss 
the major substantive issues arising from the draft Statute. An ad hoc committee was 
established for the creation of the ICC and later a preparatory committee was 
generated to formulate a draft of the courts statute that would be widely acceptable 
and be submitted to the diplomatic conference. By March and April of 1998 the draft 
was finally completed (Lee, 1999:155). 
The ICC was then established by the international community in 1998 when they 
adopted the Rome Statute in Plenipotentiaries at the UN Conference in Rome. The 
court would thus be the first ever permanent international tribunal that would be 
responsible to try perpetrators of the most atrocious crimes against mankind , while at 
the same time seeking justice for victims of these crimes. The ICC's Jurisdiction 
covered genocide, crimes against humanity, war crimes and the crimes of 
aggression . Though Aggression falls within the capability of the ICC there has not 
yet been an acceptable definition added to the Statute of what this crime entails. (Du 
Plessis, 2008: 179). The court's jurisdiction is based on the requirements of the ICC 
statute and it also has no 'universal jurisdiction'. The statute as understood sets the 
range and the restrictions of the jurisdiction , but also makes sure to follow the rules 
of international law (Engelbrecht, 2003). The jurisdiction of the Court is either 
appealed to or triggered . . Ehighalua (2010) explains that a case where the ICC's 
jurisdiction is invoked would be in cases such as in the Central African Republic 
(CAR) , Uganda and the Democratic Republic of Congo (DRC) where a State Party to 
.., 
the Rome Statute makes a self-referral for the Court to investigate their country's 
crimes under Article 13 of the Statute. 
According to article 12 of the Statute there are limitations to the jurisdiction of the 
court. These limitations refer to the ability of state parties to refer cases and 
prosecutors to initiate investigation by the court. This is due to the membership of the 
court as per the court's jurisdiction . Those involved in the referrals are to be states 
which are party to the ICC treaty. However, this might not always be the case as 
revealed in the cases of Libya and Sudan as states may still be accepted by the 
courts jurisdiction. Article 12 (2) of the Statute explains that the ICC is bound to the 
universally accepted principles of jurisdiction based on territory and on the person . 
This is to say that the involvement of the ICC in cases will depend on crimes being 
committed on the territory of or by a citizen of a state party to the Statute and also on 
the state's acceptance of the court's jurisdiction (Engelbrecht, 2003). This description 
reveals the contradiction of the courts with regards to Sudan as it is not a member 
state and has also not accepted the court's jurisdiction but it remains investigated 
and now indicted . If this was the case for all countries, surely, the USA and Britain 
should have been summoned by now, or is it that the courts rules do not apply 
equally to all countries? Some countries protect themselves from such prosecution 
by using economical and hegemonic power to intimidate others, even though the 
ICC, should be independent. 
Schiff (2008: 5) explains that the ICC is bound by international law and that: 
"International law is based on an ephemeral society that lacks a legislative structure, and it 
seeks to constrain sovereign states that recognise no consolidated authority for 
enforcement. International organisations operate at the allowance of states, subject to their 
desires, dependent upon their generosity, and victims of their ploys. Moreover, international 
organisations are subject to the same weaknesses as domestic ones - outside influences, 
bias, and maladministration". 
Therefore the ICC itself, as other international organisations is subject to outside 
influence. This is explained that there is some level of outside influence, bias, and 
maladministration which has been argued to be the case as stated by African 
Leaders. The marginalisation of the peripheral countries particularly in Africa , has 
been witnessed in organisations such as the UN, International Monetary Fund (IMF), 
World Bank, World Trade Organisation (WTO). Africa, due to its economic 
dependence on first world countries and lack of funds to contribute to these 
organisations as much as the core countries do appears to be marginalised. 
Therefore it is worth questioning why would the ICC be any different from these other 
organisations? The subjecting of states to international law therefore seems not to 
apply to all states and maybe compromising the sovereignty of some while 
respecting that of others. 
Apart from referrals a case may be pursued by the ICC Prosecutor by exercising his 
own initiative powers and initiating investigation with a view to prosecution . The court 
does provide states with the opportunity to handle issues internal , but if they fail to 
do so it takes action . That became the case for Kenya when the Prosecutor's office 
in 2009 began investigations after analysing the information on the 2007 violent 
attacks during the national elections provided by the Commission of Inquiry into 
Post-Election Violence (CIPEV). From the information provided , the Office of the ICC 
Prosecutor (OTP) investigated the allegations. This case is therefore the first 
investigation that was not a referral from a state that is party to the Rome Statute or 
the United Nations (UN) Security Council (Lynch , 2013: 4). 
The Prosecutors' powers are set out in articles 15, 42 and 54 of the Statute. These 
are said to provide independence and fairness of the office of the prosecutor as well 
as make sure that the boundaries for the prosecutor are set out clearly as he is the 
individual mandated to take charge of all ICC investigations as well as prosecute 
cases that will stand before the court. Moreno Ocampo from Argentina was the first 
Chief Prosecutor of the ICC and now, elected to this post on 21 April 2003 is his 
successor Chief prosecutor Fatou Bensouda from Gambia, an African at the very 
heart of the ICC who assisted with discrediting the Anti-African accusation and 
suspicions of the ICC being a neo-colonial tool. She took office on 16 June 2003 
(Engelbrecht, 2003) (Murithi , 2003:5) . 
As per article 15 of the Statute the prosecutor's powers when investigating cases are 
clearly defined. The prosecutor may initiate investigations in terms of information 
received on crimes within the jurisdiction of the Court as in the Kenyan situation . 
Sub-article 15(2) further explains the method and sources for the collection of 
information of crimes within the court's jurisdiction by the prosecutor which include: 
,1. 
individuals, the UN, intergovernmental and non-governmental organisations or any 
other reliable sources. It is said that this could possibly lead to a better chance of 
acceptability of the prosecutor on the part of a state and its civil society, but that may 
not always be the case as African leaders appear to be contesting the cases of the 
ICC and the methods used. 
According to this process it is expected that the prosecutor will have satisfactory 
information to start analysing information. At this point it is expected that the 
prosecutor would have a sound basis to continue with the investigation and therefore 
proceed to trial by requesting the pre-trial chamber of the ICC for authorisation to 
proceed with the investigation. If the pre-trial chamber authorises investigation , that 
means that they have reason to believe that there is a reasonable basis in the 
information provided to them and will therefore allow the prosecutor to investigate 
the issue. For the ICC this is a method to assist with the oversight of investigation of 
the court and to prosecute within only reason (Engelbrecht, 2003). 
Lastly Engelbrecht (2003) explains that the Statute stipulates that the jurisdiction of 
the court not only ends within the courts but rather that the United Nations Security 
Council (UNSC) in its exercise of the Chapter VII powers also has jurisdiction of the 
court's cases. In this circumstance, the UNSC will therefore have power to request or 
rather refer a situation or case to the ICC to investigate. This power apparently, as 
per the Statute, also extends to countries that are not even signatories to the Rome 
Statute. This in my view reverses article 12 of the Statute which evidently limits the 
jurisdiction of the court to its members. This points to the fact that as an international 
organisation the court is subject to prejudice. The UNSC has a permanent members 
five of the most powerful capitalist countries in the world which by all means will look 
after their own interests over that of others, despite China's foreign policy explaining 
otherwise. How is it that the UNSC comes in and overshadows the ICC and its 
Statute wh ich its members decided to have and signed to have it remain that way, 
which becomes subject to change by an institution that has a third of its members 
which are not even parties to the ICC? 
As The UNSC has power of referral of ICC cases as seen in the present situation in 
Sudan following the report of the Darfur Commission about the crimes of genocide, 
war crimes as well as the crimes against humanity that have been alleged to have 
been committed in the Darfur region of Sudan. The UNSC consequently also has 
power to defer ICC cases. This particular process is the very one that the African 
leaders have requested the ICC to consider with regards to the Sudanese and 
Kenyan situations. This would be considered to be a way to address the current 
imbroglio between the court and African leaders particularly those at the AU (Mutua, 
2010: 5). Article 16 of the ICC Statute provides more information for cases that may 
lead to deferrals occurring . Following the exercise of Chapter VII powers as 
stipulated in article 16, there will be no investigation or prosecution following the 
deferral by the UNSC for a period of 12 months, which is subject to change and may 
be extended for another 12 months under the very same conditions. These Chapter 
VII powers being exercised by the UNSC are still said not to be an abuse of power 
and that the UNSC has no direct control over the ICC yet they have the power not 
only to request a case to be investigated but also request that it not be. In a perfect 
world this is an exercise of direct control of power on the ICC by the UNSC, but 
according to the ICC, the very institution identified to bring justice to the state parties, 
this is not (Amstead, 1998: 21). 
However, powers are provided for the accused or those who stand not to benefit or 
may be prosecuted but the court is based on complementarity or subsidiarity as 
these are the principles on which the ICC operates to assist in trying to balance the 
haves and the have nots. In a more practical sense, to ensure by norms of 
international law that both those prosecuting and those prosecuted look like they are 
equal. In accordance to what Du Plessis, (2010: 56) argues, the complementarity is 
an expectation that countries would be able to handle their individual cases 
domestically. This would , as previously discussed mean that a country that would be 
willing and able to prosecute its own perpetrators; as proclaimed by the Rome 
Statute the ICC is to cooperate in relation to its investigations and prosecution. This 
makes sure that the ICC operates more as a reinforcement of the country's justice 
system at a national level which would therefore make it only a part of the 
international criminal justice system, rather than a dictator. 
This principle proceeds from the belief that a particular country and its criminal 
justice system should be first to act before the court comes in . It will therefore mean 
that if the countries or the state parties being investigated are unwilling or unable to 
act in accordance with international law and prosecute international crimes 
C. 
committed in their own countries by their nationals, the ICC will then have jurisdiction 
to take over and investigate till prosecution. This is what happened in Kenya; Sudan 
on the other hand did not have the opportunity to have its own investigation . Both 
leaders were indicted and arrest warrants sent out to the world ; confirmation of an 
indictment is also to be understood in this context. It occurs in a hearing in an open 
court. After drafting the indictment, the victims through their legal representatives can 
challenge the indictment on a number of grounds (Locke, 2012: 604). This is not 
what happened in other cases. 
In respect of international law and its norms it is worth noting that in the protection of 
the accused , international law applies the ne bis in idem principle, in which no 
person may be prosecuted twice for the same crime. Another is the Nulla poena 
sine lege principle, which states that the statute will stipulate the punishment of 
people on trial and the maximum penalty of the court is life imprisonment. This might 
prove not to be enough by some, as many were unhappy with the International 
Criminal Tribunal for Rwanda (ICTR) when the death penalty was not imposed 
(Cryer et al , 2010: 83) . 
The Rome Statute was later reviewed in June 2010 in Kampala , Uganda to adopt a 
resolution to amend the Rome Statute to include the definition of the crime of 
aggression as it was undecided at the formation of the Statute by State Parties about 
what this definition would entail. On 1 January 2017 the actual exercise of jurisdiction 
on crimes of aggression is to be decided by State Parties (Mutua, 2010: 2) . As with 
what is regarded as the Court's exercise of jurisdiction , it was decided at the 
Conference that a situation whereby there is an act of aggression could be referred 
to the ICC by the UNSC. This would be within Chapter VII powers provided by the 
UN Charter. This will then be irrespective of whether or not the country is a State 
Party or non-State Party to the Rome Statute. Other amendments were made to 
regard the authorization of the prosecutor in the absence of UNSC, the employing of 
certain poisonous weapons and evaluation of international crim inal justice 
(Padmanbhan, 2010: 4) . 
Another point to note is that the US was one of the first if not the very first endorser 
of the idea of the world having an international criminal court. This is after the 
genocide in Rwanda when President Bill Clinton openly called for a permanent war 
-, 
crimes tribunal right before the Rome conference. This was not the case when these 
very vocal endorsers of the court joined China, Israel and Iraq in voting against the 
Statute at the last days of the Rome conference. The Rome Statute continued to be 
adopted in 1998 in July on the 19th through a non-recorded vote of 120 in favour, 
seven against, 21 abstentions. The evidence of the US and those identified to be 
against the Statute were very visible even though the voting was not documented as 
they were very explicit about the fact that they were against the adoption of the 
Statute and had voted accordingly. There were three other states that did vote 
against the Statute namely; Libya, Iraq and either Algeria, Qatar or Yemen ; it was 
uncertain which of these three countries as the voting country was not documented 
(Du Plessis, 2010:30) 
It can therefore be said that the US, which is a key player in the international arena 
opposed the establishment of the court from the beginning. Even though they did 
sign the Rome Statute, Clinton's administration did not ratify the treaty. The 
objections to the court as professed by the US were a lack of adequate checks and 
balances on the court, predominantly based on the powers of the ICC prosecutors 
and judges and that the court does not have a jury system as in the US. However, 
other reasons if not the main reasons included the issues that Clinton 's 
administration ambassadors remained at large and not charged for war crimes 
issues that the US was unwilling to explain nor admit. 
It is said that the US Senate Foreign Relations Committee was informed that the 
treaty implications would establish an arrangement whereby US armed forces 
operating overseas namely in the Arabic countries could be conceivably prosecuted 
by the ICC even if the US had not agreed to be bound by the treaty. This is 
surprising as it has not yet occurred despite the power of the UNSC to refer non-
party states as in the case of Sudan. New Africa magazine (2012) explains this to be 
the most fundamental principle of the treaty law, yet the US perpetrators remain free 
while African Heads of states are charged and indicted . Why would this be possible if 
not for prejudice? Why is it that the rules only appear to be for a selected few who 
have a commodity the US is known to want? Countries like Libya and Sudan have 
oil. 
n 
On July 1st 2002 the Rome Statute was entered into force , whereby it was signed by 
139 states and ratified by 113 with a significant proportion of the countries being 
African . African countries have been extensively supportive of the ICC since the 
beginning , from their governments to civil society and the public at large (Mutua, 
2010:2). All these factions of societies have been of great significance in ensuring 
the success of the Court, including the AU and other regional blocs. 
The active involvement of Africans could be accredited to the re-establishment of the 
Organisation of African Unity (OAU), becoming the AU it is today. Africans needed 
change and the creation of the court would mean an African transformation that 
came with the change that this new continental body would bring about (Ehighalua, 
2010) . As a continental organization the OAU did provide a platform for all member 
states to adopt corresponding positions on issues that were a common concern to 
the continent in various international settings, as well as to defend African interests 
effectively. Through the OAU, African countries acted as one united front in the 
Coordinating Committee for the Liberation of Africa (AU, 2014) . However, this may 
be described to be only one side of the coin as the OAU had its own regrets. 
The other side of the coin as explained by Cilliers and Malan (2005: 1) is that the 
OAU had not provided appropriate tools for a collective and comprehensive solution 
for African states when there were violent emergencies coming out in the very 
liberated continent it assisted . These problems arose from the fact that Africans had 
a shared value where they viewed non-interference in the internal affairs of member 
states as a rule to live by. No matter what the other country was doing the OAU 
continued to ignore the atrocities that African countries inflicted on themselves. This 
was the case until the 1990s series of violent conflicts in Africa . Of importance is 
1994 when the Rwanda genocides erupted . 
There was later an urgency for African states to make changes in their common 
security collaboration as in matters of development, economies, issues of human 
rights, poverty, HIV/Aids, etc. These factors together with many others led to the 
establishment of the AU in 2001 where in the case of security, the non-interference 
clause of the OAU was declared no longer operational. The new Constitutive Act of 
the AU gave the right of interference in a member state, where there were grave 
circumstances namely: war crimes, genocide and crimes against humanity (Cilliers & 
n 
Malan, 2005:2) . With these changes of policies and framework, the AU became a 
major contributor to the establishment of the ICC in the post OAU era. 
To date, 43 African countries are signatories to the Rome Statute and of these 31 
are states parties. The African Bloc is the largest representative regional group 
within the ICC, actively participated in the establishment of the Court and was 
instrumental in bringing it into being. However, even with that being the case, the 
relationship of the ICC and AU today has become one of inconvenience. 
(Hatukusema & Atasema: 2013). The Court today has now opened 20 investigations 
into criminal activity, eight of which are from African States. In 2014 the cases 
pursued in Africa were way more than in the rest of the regions around the world 
combined. This imbalanced focus on the African continent has been a subject of 
intense scrutiny in recent years. 
The intense scrutiny of the relationship between the Court and African states has 
since 2009 arguably been one of serious disorder in the ICC's short lived life. The 
crisis between the two began with the arrest warrant that was issued to the 
Sudanese President Omar al-Bashir by the court on charges that constituted the 
jurisdiction of the court as stated by the Statute; these are crimes against humanity 
and war crimes committed in the Darfur conflict (Du Plessis, 2010: 8). Then the case 
of President Uhuru Kenyatta and his Deputy William Ruto following the 2007 election 
violence crisis in Kenya also created growing dissatisfaction among African 
countries , and the future of the ICC and Africa now seems to rest squarely on these 
two cases (Halakhe, 2014). There have therefore been suggestions that the treaty 
based Court is nothing but a hegemonic tool used by the core first world countries to 
target and discriminate against the peripheral Southern countries in Africa and 
therefore undermining African efforts to solve its own problems. On the other side 
supporters of the Court have argued that the Court's involvement will manage to 
break the profoundly entrenched and universal culture of impunity in Africa. 
This thesis aims to assess the relationship of the ICC and the AU by providing an 
analysis of the individual cases of the ICC in Africa from 2009-2014, with special 
attention to the cases of President al-Bashir and President Kenyatta and his Deputy 
William Ruto. It will assess the agreements between the ICC and Africa particularly 
the Rome Statute and the AU Constitutive Act in order to effectively provide an 
overview of the relationship of the AU and the ICC, the factors influencing the current 
state of affairs and ultimately determine the future of the relationship between the 
two institutions with regards to Africa-Western imperialism or African justice. 
1.2 Problem Statement 
The AU and its member states were extensively involved in the creation of the ICC, 
in order for it to assist in bringing peace to the African continent. This commitment 
demonstrates that historically, the expectations of the signed agreement would be 
beneficial to the victims of serious crimes and bring about peace and security on the 
continent (Du Plessis: 2010: 12). African leaders have however come to regard the 
ICC as a tool for Western domination unfairly focused on Africa while having double 
standards elsewhere in the world. The Court has been stated to be undermining 
Africa rather than helping it solve the problems in terms of the Sudanese and 
Kenyan Presidents' indictments, as well as the fact that most, if not all of the cases 
presented to the ICC are from Africa . The Court has consequently been accused of 
putting justice ahead of peace and conflict resolution . This study therefore seeks to 
evaluate the involvement of the ICC in Africa and the response of the continent's 
leaders to the Courts efforts, using the cases of the two standing Presidents, Omar 
al-Bashir and Uhuru Kenyatta as case studies. 
1.3 Research questions 
1.3.1 What is the relationship between the ICC and the AU , with special focus on 
Africa? 
1.3.2 What are the factors influencing the current position of the relationship? 
1.3.3 How does the future for the ICC/AU appear from the current relationship? 
1.4 Aims 
The main aim of this assessment is to provide an analysis of the relationship 
between the ICC and the AU with regards to Africa . It will address the similarities and 
differences of the organisations with regards to their approaches to restoring peace 
and security, as well as bringing justice to victims of serious human rights abuses on 
the continent by assessing both the Rome Statute and the AU Constitutive Act's 
position on the matter. 
1.5 Objectives 
1.5.1 Evaluate the relationship between the ICC and the AU with regards to the 
African continent. 
1.5.2 Investigate factors influencing the current state of affairs within the 
relationship of the ICC and AU . 
1.5.3 Examine the future of the relationship between the ICC and the AU . 
1.6 Data collection 
The data used is all secondary. The collected data is from electronic and hard copies 
of articles, journals, books, databases and publications from different research 
institutes. 
1. 7 Method of Data Analysis 
The type of data collected for any research study goes a long way to determine the 
method for its analysis. Therefore, the method of data analysis used for this study 
will be descriptive. Secondary data being the main source of data collection , the 
qualitative research method is used to analysis the relationship between the ICC and 
the AU . 
1.8 Limitations 
The research is international, looking at the ICC's relationship with the AU , 
particularly in the decade of the ICC's existence. It also focuses on the case study of 
the Sudanese and Kenyan Presidents and other prosecutions of the ICC. The 
research is meant to be completed within a particular time limit. Furthermore, the 
researcher is a student with course work which limits the ability to travel to The 
Hague, Sudan or Kenya as well as the inability to finance these trips . To control 
these restrains of not doing field work, the research will entirely depend on 
secondary data and information that will be obtained from different research 
institutes and materials. 
1.9 Delimitations 
The study will be delimited to the involvement of Africa in the creation of the ICC 
from 1998 to the present date. It is an assessment focusing on how the relationship 
of the ICC and the AU has been affected with regards to the responses of African 
leaders to the warrant of arrest for both the Sudanese President Omar al-Bashir and 
Kenya's Uhuru Kenyatta by the ICC. 
1.10 Scope of the study 
This assessment will focus on the relationship between the ICC and the AU . The 
scope of the study is from 2009 when the al-Bashir's case was presented to the AU 
when he became the first standing president to be indicted by the Court in June 
2014. It then continues with the AU's 21 st Summit of Assembly in October 2013, 
which Kenyatta attended in his capacity as President of Kenya for the first time with 
a case against him by the ICC and the proceedings thereafter. 
1.11 Significance of the research 
The research is motivated by the desire to assess the current state of affairs of the 
relations of the ICC and AU . It investigates the cases of the ICC in Africa and 
assesses whether or not the ICC's aims on the African continent goes hand in hand 
with the expectations of Africans as agreed in the Rome Statute. The research is 
significant as it investigates the rule of international law and institutional guidelines of 
both the ICC and the AU , using arrest warrants for the Presidents of Sudan and 
Kenya and their prosecution as case studies. This study thus explains the violation of 
the president's rights and the country's sovereignty by the ICC. At the same time it 
also examines African leaders' violation of the AU 's Constitutive Act and ICC's Rome 
Statute at the expense of victims but benefit of the elites. The issue of the ICC and 
its relationship with Africa has been researched by many scholars. However, the 
cases of the Sudanese and Kenyan Presidents' relations to the rest of Africa, and 
how Africans have responded to these cases from the ICC is one of particular 
interest with few researchers focusing on the issue. 
The following stand a chance to gain from this study: 
1 Academics will benefit from the global body of knowledge. Furthermore, future 
research made in the case of al-Bashir/Kenyatta and Africa's regard for the ICC will 
have more references. 
2 This study may initiate further research of this particular topic. 
3 Th is study may improve policy making for future leaders to consider all 
clauses of the agreements before signatories are endorsed and the 
implication it may bring to them and their countries. 
4 Individuals will be better informed about the cases of the ICC other than what 
journalists from television networks and newspapers report on. 
1.12 Research methodology and methods 
As indicated in 1.8, the research is subjected to secondary data collection and 
restrictions. The research therefore uses the qualitative approach for the study in 
order to adequately address the research question. The choice of the design is 
informed by the research problem, which requires an in-depth description , evaluation 
and analysis of the ICC's involvement in Africa and the response of the continents 
leaders to the efforts of the Court with particular emphasis on the case of Presidents 
al-Bashir and Kenyatta . The study uses the 2002 Rome Statute as the base of the 
foundation of Africa's involvement with the ICC as well as the binding clause of the 
agreement of the Court. The researcher presents the two cases to identify the 
inconveniences within the relationship between the ICC and AU . The objectives of 
the research are centred on the case study of Al-Bashir and the warrant of arrest that 
was issued by the ICC in 2009 and African leaders' unwillingness to arrest him, and 
now recently the objection to the prosecution of Kenyatta by the AU . 
The research explains what African leaders had agreed upon when ratifying the 
Rome Statute and their expectation when contributing to the creation and on-going 
support of the ICC. It also evaluates the reaction that has been received from 
Africans towards the two cases. Another issue is why they have come to regard the 
ICC as a tool for the West, which undermines and is unfairly focused on Africa , and 
leads to accusation of the ICC having double standards. The thesis also provides 
criticism of the AU and its disregard for justice and impunity. 
The ideal research method would have been to collect new data in the field through 
meeting with civilians, ambassadors, governments and Court officials, and Heads of 
States from all mentioned countries. However, due to safety and confidentiality of 
certain information and economic constraints, that type of data is unattainable. In 
order to address the above mentioned constrains in a much more practical manner, 
which would allow the researcher to arrive at a complete analytical conclusion 
regarding the hypothetical propositions, a content analysis will be used. The study 
therefore relied on secondary sources to determine the findings of the study. 
1.13 Structure of dissertation 
The study is made up of four chapters . 
Chapter One: Introduction, background of the study, problem statement, research 
question, aims, objectives, data collection , method of data analysis, limitations and 
delimitations, scope of study, significance of the research and the research 
methodology. 
Chapter Two: Theoretical framework and literature review. 
Chapter Three: Analysis of data. 
Chapter Four: Conclusion , recommendation and summary. 
1 r= 
Chapter Two 
2 Theoretical framework and literature review 
2.1 Introduction 
This chapter presents the theoretical framework of the study and the literature review 
on the topic. The theoretical framework explains the theory the study uses to explain 
the literature and findings of the research . The literature review evaluates literature 
related to the study topic, therefore describes, summarises and clarifies the 
relationship between the ICC and the AU . 
2.2 Theoretical framework 
This research has been carried out under the theoretical framework of systemic 
theories of politics and international relations . This systems approach to international 
relations and political science is defined by Weitman (1975: 35) as: 
"A system of action is a set of variables so related, in contradiction to its environment, that 
describable behavioural regularities characterise the internal relationships of the variables to 
each other and the external relationships of the set of individual variables to combinations of 
external variables". 
Thus the systemic theory of political science and international relations brings out the 
decisive factors of the relationship between the ICC and the AU . It brings out the 
relations of the African leaders who the ICC has requested to be arrested even with 
their distinct features , explaining the relationship that the ICC has had with Africa , 
and its effectiveness. The case studies regarding al-Bashir and Kenyatta contrasting 
the behavioural regularities characterised by the internal relationships in Africa 
among countries , organisations and groups with the external relationship they have 
with the ICC and the Western world . 
Theorising based on systems brings together two fundamental approaches to 
international relations theory (Dougherty & Pfalzgeaff Jr, 1997: 100). The first is 
termed reductionist and it focuses on actors and the interaction that takes place 
between them, whether they are individuals, groups of people such as nations, or 
bureaucratic units. Its focus is the development of explanations and theory at the 
level of the individual participants or units. The second approach emphasises the 
1 C. 
structure that provides the framework within which such interaction occurs. Structure 
is said to have a decisive impact on the interaction of the actors. According to 
structural theory, the actions of individuals or groups, when aggregated , produce 
patterns of behaviour that may be fundamentally different from the behaviour 
patterns of individual. The structural approach attempts to explain how the structures 
within which actors exist affect the interactions between the actors, and how and why 
changes in the structure take place. This structural approach is termed holistic or 
systemic because it is based on the development of the explanations at a more 
macro level of analysis which is why the research follows this approach. 
The holistic approach focuses on all actors within the structure of the relationship 
between Africa and the ICC at a micro level. This thus includes all members of the 
ICC Statute and organisation, African heads of state, organisations and blocs on the 
continent as well as individual citizens as participating contributors to the study. This 
approach looks at the individuals who have been presented with arrest warrants , the 
"perpetrators" as the ICC refers to them. It also focuses on the leaders of Africa , 
organisations in Africa as contributors to the study and the victims of these "heinous" 
crimes. The holistic approach considers the entire structure of the relationship all 
these parties have with the ICC and the framework in which these relations take 
place. It incorporates all actors of the structure including outside influence as the UN 
Security Council and the West while still considering the use of the neorealist-
structural-realist theories by all actors. 
With the realities of human activities within international politics there is no one 
theory that may be said to explain the entire relationship between the ICC and the 
AU . The dynamics in social sciences and legal studies that are incorporated in this 
study bring about a need for the use of several theories . Neorealism theory is one of 
the theories used in the study, particularly to carry out the interests of the AU and the 
ICC within their individual structures. According to Waltz, neorealism embraces that 
anarchy is the ordering principle that defines the structure of the international 
system. It does this by the distribution of the capabilities which is measured by how 
many great powers there are in the international system (Frankel , 1996: 391 ). 
The current state of affairs that characterises the relationship between the ICC and 
African states is one in which states seek their own interests and will not subordinate 
their interests to another state or, in this case as characterised by the contemporary 
world order institutions. Both the AU and the ICC are assumed to want to ensure 
their own existence as this is a requirement to pursue both institutions' goals of being 
a united independent Pan-African institution for the former and an international 
independent Court seeking justice in the name of international law for the latter. 
Neorealist theory therefore not only determines the interaction between the ICC and 
the AU as described in the structural approach but rather the objectives of each 
institution as well. 
Two schools of thought have or are emerging in the ICC in relation to Africa thus far; 
according to Mahmood Mamdani the court is simply another form of neo-colonialism. 
This is an imperialistic institution that is very focused on the poor in the south and 
targeting particularly those in Africa. He further goes on to explain that with Africa , 
the legalistic approach that the court is using is not the best approach. It is 
anticipated that it would not produce the expected results when dealing with issues 
such as Justice, reconciliation , post-war reconstruction , and human rights violations 
on the troubled continent (Ehighalua, 2010: 4). 
The two schools of thought, though vaguely highlighted in the systemic theory, are 
captualised by the peripheral realism theory. The view of neo-colonialism that is said 
to be resulting in the relationship of the ICC and AU has more roots in the 
imperialism and dependency theories, which provide the background of the African 
peripheral status. The peripheral realism theory outlines the concept. This view of 
international relations provides for the occupational structure of interaction in IR as it 
views the international system as some form of an emerging hierarchical structure. 
This is based on the perceived differences between states: those that rule , those that 
obey the rules and those that rebel against them. This foreign policy theory 
introduces the viewpoint of states which will be in the forefront of giving orders and 
then states that do not give orders but rather follow the rules in the international 
system and which suffer the most should they not follow. Hence periphery African 
policies are formed and applied in such a way that the countries' national interests 
are defined in terms of development rather than empowerment. This is because 
confrontation with those with power is being avoided as witnessed in the ICC/AU 
relations. Sovereignty is not understood as freedom of action; instead it is the cost of 
10 
using that freedom that resulted in the AU Extraordinary Summit in 2013 not having 
any withdrawals by African nations from the ICC (Escude, 1998: 55). 
All these theories on their own do not capture the essence of the relationship 
between the ICC and AU but are all represented within the study to better convey the 
relations of the two institutions, at all levels of international politics with particular 
importance, however, placed on the systemic theories of politics and international 
relations which the study uses to assess the relationship of the ICC and AU on 
whether it is one of inconvenience. The systemic theory of politics and international 
relations is in itself not the only ideal theory to convey the relations between the ICC 
and AU . It may be better assisted by both the structuralism theory and rationalism 
theory. 
The structural theory places emphasis on the fact that for an object to have structure 
it must have united parts under ordered relations. This would mean parts themselves 
are not important, but their significance is evident in the relations among them. The 
relations between the ICC and AU are themselves significant in order to achieve a 
structure that will maintain both parties' interests. The structural theory explains that 
meaning does not necessary remain unchanged when parts change, but it remains 
unchanged when it comes to systemic change of parts. The theory explains the 
relations significance that systemic theory does not (Stephen , 1991 :403). 
Rationalism theory views states as being included in an international society not just 
simply an international system. In this instance states become a part of th is 
international society when they begin to accept the various principles and institutions 
governing the international system in which they conduct their foreign relations. Both 
the ICC and AU are institutions that according to rationalism have proven some 
commitment to the thought that maybe it is inappropriate to promote one's national 
interest without having any sort of regard for international law and ethics. Therefore, 
in order for international society and it structures to remain intact both institutions are 
to address their relation of inconvenience (Beavis. 2014). 
1n 
2.3 Literature review 
2.3.1 Introduction 
Following the human rights abuses strategies adopted by the German Kaiser during 
VWVI and the 1915 Turkish campaigns against the Armenians, the need for 
international Justice was explored and the preservation of human rights developed . 
War in its own violates human rights at personal , national and international level and 
states are unable or unwilling to bring perpetrators to justice in accordance to 
international law and provide redress to victims. International law goes beyond the 
domestic legal terrain where national sovereignty is subordinated to the higher 
principles that ensure sustainable peace and security and the respect of human 
rights internationally (Mensa-Bonsu , 2015: 35). To safeguard the principles of 
international law and enforcement of international justice, the ICC was established to 
enforce universal human rights standard and bring about accountability from 
offenders, be they states or public official. African states have been a great part of 
the establishment of the ICC, however the relationship between the ICC and AU has 
been disintegrating in the recent years. Since the Sudanese President Al Bashir's 
2009 indictment the relationship has deteriorated and with the latest indictment of the 
Kenyan President Uhuru Kenyatta the relationship seems to be crumbling. The AU in 
2013 had an extraordinary session of Assembly where the future of the ICC and 
Africa was discussed with particular focus on the Kenyan President and his deputy's 
indictment as standing Head of State and his Deputy William Ruto. From the 
developments made from the cases and summits, this thesis will discuss the AU's 
stand point on the issue of ICC's prosecutions in Africa as well as the ICC's 
interpretation of the cases based on literature presented in this field by various 
writers and sources as well as their recommendations for the current situation 
between the ICC and AU in accordance to international law. 
2.3.2 The situation in Sudan and ICC's case against al-Bashir 
Dating back to the British colonisation of the country Sudan has always been a 
troubled nation. Mutua (2010) explains that the factors to be considered are the deep 
divide between the Arabised north and the black African south . These conflicts he 
says are rooted in the country's religious and racial conflicts as well as the 
competition that seems to occur over resources in the country. Another problem for 
"If'\ 
this weak but violent nation has is the dictatorship of its leaders. These problems 
have combined create one of the most horrific humanitarian crises in the world 
today. Though today the country has separated and become North and South 
Sudan, it had a previous long-running conflict between the two territories. Even 
though at the time the conflict had toned down, the government of President Omar 
al-Bashir has been convincingly accused of war crimes, crimes against humanity, 
and genocide in the Darfur region which is in West Sudan and home to the black 
African Muslims in the country. 
The government security together with the Janjaweed which is an Arab militia have 
been said to be responsible for the atrocities experienced in the region. Following 
these events, within their Chapter VII powers the UNSC expressed their concern 
about the region being a possible threat to international peace and security as well 
as stability within the region . Therefore in July 2014 the UNSC recommended the 
deployment of the international presence in the region with monitors, as well as the 
protection force proposed by the AU to the Durfur region in Sudan (Edstrom & 
Gyllensporre, 2013: 183). 
Subsequent to raising concern , the UNSC within their powers referred the case to 
the ICC and had the Darfur situation reported to the ICC, which then launched their 
pre-trial investigations even though Sudan was not party to the court under article 
12, but as a result of Chapter VII powers from the UN Charter, the ICC was within its 
jurisdiction. With the pre-trial investigations taking place, an arrest warrant was 
issued for al-Bashir in March 2009 for war crimes and crimes against humanity in 
Darfur. Then in the following year in July 2010, a second arrest warrant was issued 
for genocide committed in Darfur (Mutua, 2010: 4). The warrants of arrest for the 
Sudanese President are · for his alleged role as either an indirect perpetrator or 
indirect co-perpetrator in the genocide that took place in Darfur. He is accused of 
having a hand in the killing, causing of bodily and mental harm as well as 
deliberately inflicting conditions of life which would result in physical devastation to 
victims in Darfur. These alleged crimes also had five other Sudanese officials 
charged , of which Bahr Abu Garda has already appeared before the court voluntarily 
while the others remain at large. They have also been charged with war crimes and 
crimes against humanity (Bassiouni , 2011 : 206) . 
'11 
International Criminal Courts (2010) reports explain that the Pre-Trial Chamber I 
issued an arrest warrant for Omar Al-Bashir for seven counts of crimes against 
humanity and war crimes before Judge Cuno Tarfusser, Sanji Mmasenono 
Monagenf and Sylvia Steiner. The judges concluded that the arrest warrant for al-
Bashir under article 58 (1) of the Rome Statute was one of importance to ensure that 
three of these conditions were made possible. Firstly was that he eventually appears 
before the court, secondly to keep him from interfering in ongoing investigations and 
lastly that he does not continue with the very crimes he is accused of. In his 
individual capacity al-Bashir has been held criminally responsible on ten counts: five 
counts of crimes against humanity, two counts for war crimes and lastly three counts 
of genocide (International Criminal Courts, 2010) . 
The jurisdiction of the ICC over international crimes committed in Darfur is due to 
Security Council Resolution 1593 which gives them the right to continue with the 
case and eventually prosecute al-Bashir despite Sudan not being party to the Statute 
(Human Rights Watch , 2010) . The first warrant of arrest did not include genocide as 
decided by the pretrial chamber. The OTP appealed this decision stating that the 
material investigated proves the need to include it and accused the chamber of using 
inappropriate standards to have this declined in the first place. The question is, how 
many other inappropriate standards are there that the pre-trial chambers of the ICC 
will make with other cases. What standards were they using to prove that this is to 
be declined? Anyway, the OTP managed to have this turned around and in 2010 a 
new arrest warrant that included genocide was issued for al-Bashir. 
al-Bashir has had restricted movements since the warrant of arrest was issued. 
Many countries like South Africa have declared that they will arrest him should he be 
on their territories. He ·has not been attending many international meetings as the 
invitations do not go out to him due to the warrants. Countries all over the world 
specifically those in the South, mainly Africa , fear to have him enter their states even 
though they do not really agree with his indictment. This takes us back to the issue 
presented by peripheral realism theory where those that follow orders fear to rebel 
against those that give orders because they cannot afford to bear the costs that 
follow thereafter. Al-Bashir has been denied invitations to several international 
meetings and several states, including South Africa , which has vowed to arrest and 
turn him over to the ICC should he set foot on their soil. 
..,.., 
The President of Sudan after the indictment counteracted this decision to have him 
arrested by expelling humanitarian agencies and further escalating the violence in 
Darfur. Though he had restrictions in movements they were not unanimous, as in 
Nairobi he was invited to the 2010 promulgation of the new constitution on 2yth of 
August by the government of Kenya. Both African countries and the West 
predominantly the European Union (EU) criticised Kenya for its failure to arrest him 
and going against its duties under the Rome Statute (BBC News Africa , 2011 ). And 
in 2013 he visited Nigeria for an AU summit on HIV and Aids but left early due to 
calls for his arrest. Nigeria's action in allowing him to participate in the summit was in 
line with instruction from the AU's decision not to cooperate with the Court in 2012 
(Aljazeera, 2013) , a stand the AU decided to take which may be considered to be a 
milestone for the fragile institution at the hands of those who rule. 
Although reluctant to pursue their ambitions, many Africans have openly rejected 
and criticised the warrant of arrest against al-Bashir, clearly disregarding the efforts 
of the ICC (Du Plessis, 2010: 11 ). The Arab League has been very vocal about its 
support for the Sudanese President, the AU also made strides in 2009; despite 
Botswana's protest it passed a resolution to reject the ICC's arrest warrants against 
al-Bashir. Africa 's most populous state, Nigeria, openly supported this resolution , 
and even South Africa invited him for President Zuma's inauguration but secretly 
asked him not to attend, stating later that they invited the Sudanese government but 
not al-Bashir. This could be considered to be a step in the right direction as far as the 
AU goes; with two of the continent hegemonic countries backing al-Bashir, they 
showed a united front. 
Even though rumoured to have had widespread intimidation of voters and fraud , the 
April 2010 Sudanese elections saw the re-election of al-Bashir assisted by the 
boycott from the opposition . In 2012 the African Union changed the venue for the 
annual meeting to accommodate al-Bashir as Malawi had promised to arrest him on 
arrival after being threatened with sanctions by the West should they not arrest him. 
This followed after Malawi was questioned by the ICC on allowing al-Bashir to visit in 
November of 2011 . The now deceased President Bingi wa Mutharika of Malawi was 
one of several leaders on the continent that were vocal in their condemnation of the 
court for investigating war crimes only in Africa disregarding the rest of the world. 
(BBC News Africa : 2011 ). Malawi experienced what it cost to not obey the rulers 
following the 2011 visit, which showed other states what they stand to endure should 
they follow suit. This is no wonder small, dependent countries like Botswana dare not 
go against those at the top of the food chain . Since his re-election the Sudanese 
President's movements still remain limited and Sudan remains unstable with the 
secession of South Sudan becoming an independent state and numerous attempts 
for his arrest continue as he is still at large. 
The main complaint about al-Bashir's case by African states is that he is a sitting 
Head of State. The fact that the ICC has continued to pursue a case against a sitting 
Head of State, furthermore that of a country that is not even a signatory to the 
Statute of the ICC is the problem. This has brought about concerns to other African 
leaders, including those that are party to the Statute. Though the ICC has proven its 
Jurisdiction in this case, article 98 and 27 of the Rome Statute provides evidence for 
head of state immunity under customary international law. The dissatisfaction with 
this case is seen in the various responses given by African governments, its leaders 
and the AU 's bold statement of taking a decision to disregard the courts mandate, 
even with states party to the court. In this sense, a clear picture is painted by the 
responses of Africans to the developments of the case against a Head of State and 
the position they hold as the complainants against the ICC's methods. 
2.3.3 The Kenyan situation and the ICC's case against Uhuru Kenyatta 
Kenya like many other African countries has had longstanding troubles such as 
issues of historical injustice, inequalities whether social , cultural , economic or 
political , violent crisis and like all others on the rise, issues of unemployment rates 
going high and corruption increasing as political power is monopolised by an elite 
few in the country. These problems resulted in an unprecedented inter-communal 
violent crisis that erupted after the December 2007 general elections in Kenya. 
These violent events resulted in over 1,000 Kenyans dead and almost 700,000 
displaced. The AU in an effort to assist with the problem called in its Panel of 
Eminent African Personalities led by Kofi Annan as the chairperson to lead 
mediations which led to a power-sharing agreement between President Mwai 
Kibaki's Party of National Unity (PNU) and the then-opposition Orange Democratic 
Movement (ODM) (Lynch, 2013: 4) . 
In the mediation process that saw the end of the 2007-8 post-election crisis, it was 
established in the negotiations that there was a need to have a few commissions of 
inquiry in this matter by both PNU and ODM officials. The AU Panel of Eminent 
African Personalities would oversee the inquiries which included the CIPEV. This is 
to say that the court allowed the country to investigate its own cases in its own 
capacity, using its own judicial authority. The CIPEV, after working on its own 
investigation and from existing documentation about the violent attacks that 
appeared to have occurred due to the issues faced by the country as in many other 
African countries, was made to believe otherwise. It concluded that, though it might 
be true that the post-election violence came as a surprise in some parts of the 
country, in many others they seemed staged , more like they were organised to 
happen the way they did. Additionally the commission found that the country's state 
security agencies as institutions formed for the protection of the country failed to 
protect the country. These institutions were expected to anticipate, prepare and 
therefore contain the violence in 2007. It was declared that they themselves were 
guilty of acts of violence and human rights violations (Lynch , 2013: 5). 
The findings of the commission led to the recommendation of a special tribunal to be 
formed , which was then mandated to prosecute and brings to trial those who had 
been held responsible for what was said to be crimes committed to overcome 
chronic impunity in the country that became considered the reason for the post-
election violence. This was followed by a number of failed efforts by the Kenyan 
government to form a special tribunal and through a new popular slogan in the 
political world 'don 't be vague, let 's go to The Hague ' names of those suspected to be 
responsible for the crimes were handed to the ICC's prosecutor's office. This was 
done in 2009, by 2012 then Deputy Prime Minister Kenyatta and now Vice President 
William Ruto were alleged to have had indirect co-perpetration of the violent murders 
that were identified as crimes against humanity (Lynch, 2013:6) . 
The ICC was now involved in the Kenyan case whereby the prosecutor could 
exercise her power to refer a case before the court. The Kenyan government with a 
few of its members implicated challenged the admissibility of the cases the court had 
in March 2011 (Lynch, 2013:6). The government maintained that it had full power to 
conduct its own prosecution relating to the violence of 2007 as a new constitution 
had been adopted in Kenya. Kenya would then be at liberty to have the cases 
investigated within its borders because the constitution also meant that they had 
legal reforms that would assist in achieving this. The Pre-Trial Chambers (PTC) on 
30 May 2011 denied the Kenyan government the opportunity to do so, arguing that 
the investigations were already done on their side whereas the government had yet 
to start conducting investigations. This decision by the PTC was confirmed by the 
ICC Appeals Chamber in August 2011 which then allowed all those accused to 
remain free including Kenyatta and Ruto while pending trial. They were free from 
ICC custody, so they had the opportunity to campaign for the 2013 presidential 
election. 
Uhuru Kenyatta and William Ruto benefited from this time out of custody when they 
were elected President and Vice President of Kenya. After being elected into power 
through a generally free and fair election Kenyatta and Ruto took advantage of the 
situation and questioned the cases opened against them by the ICC. This situation 
was different from before, there was now an obvious conflict between popular 
sovereignty as expressed through the ballot box at the elections and ICC's call for 
international law and justice. The newly elected president was voted into power by 
his country to lead the nation, he now is a sitting Head of State like al-Bashir facing 
the possibility of prosecution . How is the President to lead his country if facing 
possible jail time it was argued at the AU summit in May 2013. The issue of Kenyatta 
and his Deputy was on the agenda and the Assembly debated this case, which 
undermined the sovereignty of Kenyan nations as they voted for their leader to be 
Kenyatta. This they said threatened the stability of the country and the success of 
reconciliation. The AU Assembly decided to adopt a request to the ICC to refer the 
case back to Kenya and allow it to make its own prosecution as it had requested 
initially (Dersso, 2013) . 
The ICC suspended this request by the AU as the Trial Chamber continued to issue 
the President and his Vice with dates to appear in court and information how the 
proceedings will be conducted. This showed that the ICC had no intentions of 
considering the appeal made by the AU and completely disregarded the positions 
held by both men. When the Vice President's trial began the AU sent another letter 
to the ICC reiterating its earlier communications, and briefly requesting the court to at 
least allow the Deputy to attend cases that he would manage. This might have been 
in respect of the position Ruto holds in his country as Deputy President as per the 
constitution, nonetheless the AU was making its presence felt but to no avail. This 
was apparent in the ICC's response to the AU when it explained that this was not 
within its legal framework; it is to be considered that this is a court which is within its 
rights not to have to consider the day-to-day dealings of the accused . This brought 
the ICC/AU relation to its knees when the AU called a summit to deliberate on this 
issue following Kenya's request to have the summit, which was supported by the 
majority of the members voting by a two-third majority (Dersso, 2013), (Maru , 2013). 
2.3.4 Proceedings of the Extraordinary Session at the AU in Addis Ababa 
The summit commenced at a point when the relationship between the ICC and the 
AU was somewhat at a crossroads, with rumours circulating that this meeting was 
planned to organise for a mass withdrawal from the ICC by member states of the 
AU . The summit did take place and as a collective the African states decided to 
create an executive council which would set up meetings with the five permanent 
members of the UNSC in order to better deal with this issue following the failed 
attempts to deal with this issue with the ICC directly. As the UNSC with article 16 of 
the Statute has the power to make referral and deferrals as they did with Sudan, the 
AU anticipated that they would be able to make all the necessary changes for the 
Kenya and Sudan cases because both accused are Heads of States. This was to be 
done before Kenyatta's trial in the hope that it could be stopped from happening. 
Kenya was ordered by the Assembly to send a letter endorsed by all African States 
Party to the Statute to the UNSC requesting deferral of its case (AU , 2013). 
The argument raised at the summit to motivate the request of a deferral on both the 
Kenya and Sudan cases was derived from the principles of national and international 
law. The law indicates that Heads of States and senior officials still in office are 
granted immunity during their elected term. This implies that as long as an accused 
is still serving their term in office they are not to stand before any international court 
or tribunal. The reason as detailed at the summit was that this would undermine the 
country's peace and stability plan as well as its sovereignty. By endorsing this , the 
AU aims to safeguard the integrity, constitutional order, peace and stability of its 
member states. Therefore it stood as one in proclaiming that no AU serving Head of 
State or any person acting or entitled to act in such a capacity, will be requested to 
stand trial by any international court or tribunal while still serving their term in office 
.,.., 
(AU , 2013) . This united declaration was emphasised by the Assembly mainly in 
regard to the indictment of Kenyatta and Ruta being that they would be the first 
sitting Head of State and his deputy to be tried in an international court as al-Bashir 
is still at large. To justify this further the Assembly emphasised Kenya's critical role in 
African politics and the fight against terrorism and how a trial would distract and 
prevent the two leaders from fulfilling their duties to the nation as per the constitution 
regionally and nationally. 
The summit similarly brought back to the AU drawing board a way in which Africa 
could contribute to solving its own problems or predicaments it is in with the ICC 
through fast tracking its proposal to have an African Court on Human Rights . This 
was a possible measure outlined to resolve this issue of Heads of States by also 
including immunity for those in office suggested at the ICC amendments at the 
Assembly of State Parties. The establishment of the court was not a new suggestion 
by the Assembly. It initially came in 2009 when the AU strived for ways to claim 
independence from the ICC's intervening tactics and its promoters. Drafts to amend 
the protocol of the Statute of the African Court of Justice and Human Rights 
(ACHPR) to expand its jurisdiction began in 2010. 
The jurisdiction would now include international and transnational crimes. This would 
add a criminal jurisdiction over the international crimes of genocide, war crimes and 
crimes against humanity as at the ICC. In addition to that, the African court would 
include several transnational crimes such as terrorism , piracy and corruption. This 
came as a possible solution by the AU , however given the African continent's record 
of impunity, dictatorships and corruption, is it really a worthy development to end 
impunity and bring about justice? (Dersso, 2013), (Du Plessis, 2013: 8) . 
Even with procedures in place to set up an independent court by expanding the 
obligations of the ACHPR to include international crimes, the AU Assembly echoed 
their unwavering commitment to fight impunity, promote human rights and 
democracy, and the rule of law and good governance on the continent. The 
Assembly chairperson reaffirmed this when he said "Our goal is not and should not be a 
crusade against the ICC, but a solemn call for the organization to take Africa 's concerns 
seriously". It was validated by the AU Commission Chairperson Dr Nkosazana 
Dlamini-Zuma who explained that it was critical for the Assembly to remain within the 
-,o 
legal framework of the Rome Statutes. By these two bold statements, rumours of a 
complete withdrawal from the ICC were squashed. The Assembly also reflected on 
the actions of the AU in respect to the 2007 post-election violence in Kenya, the 
progress made by the AU Panel of Eminent African Personalities leading a mediation 
process and ending with a National Accord and Reconciliation Act where there was 
an agreement reached to consolidate the government. This was to show that the AU 
does have capacity to handle the issues on the continent without interference. 
However, the AU still relies heavily on the sponsorship, manpower, expertise, 
equipment, etc. of those they don't want interfering in the AU cases (AU , 2013). 
2.3.5 The reviews of the summit and overall literature on the ICC/AU relations 
Consequential the anticipated mass withdrawal from the ICC by member states of 
the AU did not pass. Kenya was the only member, given its circumstances, that was 
ready to proceed with the withdrawal. However, none of the other members, not 
even one country came out and openly declared withdrawal from the court. It cannot 
be said that it comes as shock that African countries fear the possibility of not being 
at the feet of the might, Western countries. African countries survival depends highly 
on their Western counterparts. Individually they do not stand a chance, but 
collectively Africa may have a chance to make changes to these conditions. 
The challenges between the West and South are yet to be conquered. The debates 
about the ICC and AU relationship always come to the power struggles of the two 
different worlds . In academia and at public level , criticism of the court, its cases and 
the Chief Prosecutor, or having opposing views to those of the ICC is deemed to be 
anti-ICC. This would mean support of everything the court stands against; the 
support of impunity, injustice as well as al-Bashir. On the other hand, criticism of the 
court as associated with an anti-Africa, nee-colonial tool for the West, pre-dominant 
powers and generally seen as an attack on Africa. These criticisms seem sensible. 
Closer exploration into the topic, however, reveals that these criticisms are to a large 
extent misplaced, biased , and more often than not, incorrect. These claims are the 
motive for what has resulted in the ICC/AU relationship , the reason it is the 
inconvenient relationship it is today (Maru , 2013). 
There has been numerous literature with diverse interpretation of the relationship 
between the ICC and the AU in recent years , literature that has come to explain what 
,n 
the relationship between the ICC and AU is about, how this relationship came to be, 
who are the parties involved in this relationship and why the relationship is what it is 
today and possibly explain what it may become. This literature evaluates the 
involvement of the ICC in Africa from the ratification of the Rome Statute to the 
current state of affairs. It examines the impact of the Court in the events occurring on 
the African continent, the Court systems in dealing with the events and the outcomes 
of these occurrences. The outcomes are examined from the context of the 
contribution of African states, those parties to the Statute and those that are not, the 
impacts of these outcomes on nations and the responses of the leaders of Africa and 
their populations. This thesis provides a clear understanding to assist with the 
assessment of the current condition of the ICC/AU relationship from past to present 
and the future. 
Du Plessis and Murithi have both taken a diplomatic stance in their individual work. 
They make use of the structuralism and rationalism theories to provide justifiable 
observations of the relationship between the ICC and the AU. They place emphasis 
on the two institutions needing to have a fundamental structure where all parties to 
this structure are united under ordered relations which places more significance on 
the relationship the two have. Du Plessis and Murithi both provide a background of 
the ICC/AU relationship from the beginning, documenting the events as they 
happened in order to provide a substantial analysis of where the two institutions are 
today. Both writers substantiate both African leaders and ICC's views of the 
relationship . They explain how the ICC/AU have come to the observations they 
express today and also give supporting evidence of reasons and validations as per 
the Rome Statute and AU Constitutive Act, while at the same time providing 
recommendations as to what could better the relations between the ICC and AU. 
The relationship between the ICC and the AU started on an unlevel playing field as 
proclaimed by Du Plessis (2010: 3) and Murithi (2014: 187). The two institutions 
came together in respect of their similar mandates of addressing issues of impunity 
that have become an immense problem on the African continent. The AU and ICC 
share a responsibility to safeguard accountability for violations, atrocities and harm 
caused to the people of Africa and provide justice to the victims of these injustices. 
Nevertheless, there is a point of separation for the two institutions. The former is 
generally a political entity; by being so, the AU is expected to always descend to a 
... I\IJ I 
more political approach to the issues it needs to address. When formulating a 
solution to the problem of impunity, violations, atrocities and harm caused on its 
territory, it goes without saying that the AU will seek first political actions such as 
reconciliation , peace,· security and stability before condemnation. The latter being a 
court of justice on the other hand will first condemn before providing solutions. The 
court in its nature is there to prove innocent or guilty, find the wrongs and then make 
them right in a legal framework. It is understandable that the court will therefore 
handle the same problem by pursing international prosecution as it is mandated to 
work under the written laws of the Rome Statute which is its foundation . 
The two institutions seem to not be meeting each other half way. In order for a way 
forward to be achieved there should be a possibility of both AU and ICC to see eye 
to eye in respect of each other's mandate. The AU is to consider that in law, justice 
is to be accomplished apart from the identity or position held . It should become more 
distinct in the situations in which it would reach agreement and support the ICC 
involvement to encourage accountability for violations and crimes on the continent. 
Subsequently the ICC is to come to terms with the fact that it is operating in an 
international political milieu although it claims it does not. It is however a very large 
aspect of the political spheres and international politics whether it likes it or not and 
needs to start embracing political lessons of its past wrongdoings and blunders by 
acknowledging the efforts of the AU of peace and stability (Murithi , 2014: 188). 
The ICC presenting this Afro-centric attention in its cases does not assist the 
conflicting institutions relationship . This focus on Africa has generally created a 
somewhat distorted opinion among African leaders in the AU about the real 
intentions behind the establishment of the court. The political interference within the 
ICC by non-party nations can be traced back from 2002 when African leaders raised 
concerns about the self-exclusion of the powerful nations from the Rome Statute. 
This objection questions the intentions of the court, and whether or not its creation 
would contribute to the increasing supremacy of the world 's greatest powers. This is 
an observation with factual findings as since the creation of the ICC and even before, 
there have been past and present crimes against humanity committed as a result of 
war and conflict throughout the world ; however, none have been cases of the ICC. 
The exclusive focus has been on Africa with one being a self-initiated intervention 
the PTO with Chief Prosecutor Luis Moreno Ocampo as head , two of which were a 
"11 
UN Security Council referral and lastly the submission of African countries (Murithi , 
2013: 2). (Keppler, 2011 :6) and Du Plessis (2010: 40). 
Although it is true that most crimes against humanity have occurred on African soil 
given the hydra-headed political instability in Africa , hence the focus by the Court on 
the continent, it is however, of importance that the ICC starts to maintain equality 
and promote universal justice in the international system. The ICC's ability to do so 
has been weakened in a few cases. An example is of how UNSC referred the ICC to 
investigate al-Bashir and it thus credibly accused him of having committed war 
crimes and crimes against humanity and genocide in Darfur. The ICC therefore has 
reason and ability as it is in its jurisdiction despite Sudan not being party to the 
Court. It is because of that the leaders of Africa question the ICC, considering that al-
Bashir is a sitting head of state and not even party to the ICC. Thus even though it 
may not be possible to fully point out all the horrific crimes that have been committed 
by the imperialist powers since the creation of the ICC, these crimes have not been 
tried at The Hague. The most awful of the crimes committed is the 2003 invasion of 
Iraq. The question however, is why leaders like Tony Blair and George Bush have 
not been subject to this jurisdiction for war crimes and crimes against humanity in 
both Iraq and Afghanistan? How come these leaders of the most powerful nations in 
the world are still not indicted? How does their case differ from that of al-Bashir? 
(Inside Story, 2012) 
Other obvious cases are that of Syria and Israel (Du Plessis, 2013: 3) . The UNSC is 
able to refer cases to the ICC. However, international politics in reality has proven 
how the members of the UNSC have the opportunity to inflict their own views, pursue 
their political agendas internally in the ICC and apply their powers in a bid to promote 
self-interests and hence the lack of universal law application in the ICC which 
Africans question. 
The crimes that have been allegedly committed in Syria by its leader, President 
Bashar al-Assad credibly qualify to be referred to the ICC. Reports were made in 
2012 expressing an increasing abuse of human rights in Syria. By 2013 the death toll 
was increasing , with mass murders, multiple violations of human rights and even 
concerns about the use of chemical weapons in the country continuing at the hands 
of the Syrian government led by President al-Assad. This has led researchers to 
question the deadlock the UNSC has indicated. The question asked is why the 
Security Council has not made any referrals to the ICC about its concerns in Syria. 
Are the events at Syria not the same if not worse considering the use of chemical 
weapons as those in Sudan and Kenya? Why have Russia and China committed 
themselves to protecting al-Assad by threatening to veto to keep him safe? These 
are questions leaders of Africa ask and why this same treatment cannot apply to 
them? The situation in Syria despite an international awareness campaign by 
countries worldwide, which includes such diverse partners signing the letter to the 
UNSC from Switzerland requesting that Syria be referred to the ICC, has not been 
referred . This issue has given credibility to the AU's accusations of the ICC's focus 
on Africa. 
The other case that brings questions of concern to the validity of the court and 
credits the AU accusations is the Israel/Palestine conflict. One could actually think 
that this would be at the top of the list for the ICC being that these are two different 
countries , with one generally oppressing the human rights of the other and 
completely violating international law as well as obstructing international peace and 
security. As a surprising outcome the Prosecutor has done nothing about this case. 
No investigation has been opened in respect of Operation Cast Lead -the codename 
for the killing of hundreds and wounding of thousands in Gaza by Israel in 2008. 
The Prosecutor clarified this in reference to article 12(1) of the Rome Statute and 
how the court did not recognise Palestine as a state for the purpose of the court's 
jurisdiction as per paragraph 3 of the article. Does the court only recogn ise states it 
chooses to recognise as it did both Libya and Sudan under article 12 without the 
countries being party to the Statute and Libya being one of the most vocal countries 
about not wanting to be a part of the ICC; why not Palestine then? Palestine made a 
declaration to allow jurisdiction of the court in accordance with article 12(3) for the 
purpose of the Prosecutor's investigation, possible trial and prosecution of Israel for 
violent acts committed in Palestine since 2002. Even with the corrections made to 
the Prosecutor's claims by Palestine, Israel is yet to be referred to the ICC. The 
Prosecutor's failure to act is accredited to the possible wrath the case will cause in 
Washington and in many powerful European states (Du Plessis, 2013: 4) . 
The ICC has thus proven from previous events within the relationship that it has no 
regard for the African standpoint. According to many in the AU this is a Court that 
has failed to apply its laws universally so it therefore cannot be given the label of 
being a court. How is a court's jurisdiction selective to some and does not apply to 
others. Even when invited to intervene it fails to do so, but cannot respect the 
request from Africa to just allow a leader of a country to finish his time in office and 
then go for prosecution . The AU never said cancel the possible prosecution, but 
rather hold off on the case for the period a leader is still in office to allow him to do 
his constitutional duties as elected by the people of his nation . The point made by 
Africans is that if requests for accountability are made for African leaders then it 
should apply equally to Western nations as well as Russia and China, even those 
they protect like Syria and Israel. 
This unfair treatment by the court on the African continent keeps increasing and 
grows tension between the ICC and the AU . The worst part of it is that most of the 
issues of concern are not even produced by the court but rather by interfering forces 
from outside. The issue of how the Court and the UNSC have disregarded requests 
from the AU to exercise article 16 of the Rome Statute and use its Chapter VI I 
powers to make a deferral of both cases of al-Bashir and Kenyatta in 2009 and 2013 
in respect of them being sitting Heads of States has caused animosity. The AU in 
2009 at a summit decided not to cooperate with the court in coordinating al-Bashir's 
arrest which was the beginning of the AU/ICC souring relationship. The AU/ICC 
relationship though still civil was crumbling when rumours of a mass withdrawal from 
the court occurred and the reiteration of a continued lack of cooperation with the 
court was announced. Failure to cooperate with the Union was the threat of 
sanctions from African states. AU has thus clear determination to achieve the goal 
set out, but their efforts have gone to waste as they aimed at achieving the UNSC's 
deferrals of both Sudan and Kenya case from the ICC but Ruto still faces trial and 
Kenyatta is to follow Maru, (2013), Dersso, (2013) and Murithi , (2013: 4). 
Maru (2013) and Dersso (2013) have both rather focused on the rationalism theory 
which considers states to comprise international society and not only of the 
international system. The two writers describe the relationship of the ICC and AU 
from the view of the international society providing the laws that bind the states as 
per the various principles of the institutions that govern them. They explain that from 
..,,, 
a legal standpoint African states which are party to the Rome Statute have already 
accepted the jurisdiction of the court on their leaders and therefore consensually 
accepted Article 27 of the Statute. This allows for the prosecution of Heads of States, 
even those still in office. Of the total of 122 states that are party to the Rome Statute, 
members of the AU consist of a third of the ICC which legally does not justify the 
AU 's request for Article 16 for the UNSC to defer the cases of al-Bashir and 
Kenyatta . 
All states parties to the Rome Statute remain bound by the law of the Statute. 
According to Maru (2013) and Dersso (2013) there might be no chance that the 
options requested by the AU in its relations to the ICC would yield the outcomes that 
the AU expected . The assumption to be made from these writers literature is that of 
peripheral realism theory where in the "international society" of rationalism a 
hierarchical structure exists. Their work explains that in this structure Africa must 
obey in accordance with the orders given by those who rule. 
This disregard presented by the ICC and UNSC for the AU 's request has continued 
since the Sudanese case and as witnessed at the extraordinary session in 2013 the 
ICC and UNSC continue to disregard the AU and in 2014 Kenyatta and Ruto are 
facing trial proceedings and al-Bashir remains at large but still Head of State of 
Sudan. The ICC once again excluded itself from the political connotation and held 
that the AU's requests had a resolution that was rather more political in its statement 
following the legal procedures of the Court itself. The problem with this as echoed by 
the AU is that by indicting or arresting Heads of States not only does the ICC neglect 
state sovereignty but it also undermines the African peace process, security 
possibilities and maintaining of stability as the ambitions of the continent. It further 
disrupts ongoing peace processes and peace rebuilding in those individual countries 
(Sudan/Kenya). The problem is that the individuals and leaders that are called to 
The Hague are the same people who will be called to engage in the processes of 
rebuilding peace in the country and they need to be present to lead , and sign the 
agreements made, and continue to ensure the implementation of those agreements 
(Lynch, 2013: 5) and Murithi (2013: 3) . 
Although the ICC/AU relationship has been tainted, Keppler (2011 : 7) and Murithi 
(2013: 4) explain that despite the setbacks that the relationship between the 
'.lC 
institutions has experienced , there are still signs of positive relations, with others 
noting how some in the AU are continuously poisoning the relations. There are 
countries within the AU that have taken advantage of the situation of the conflict 
between the ICC and AU and using the disregard for the AU's request and the 
unequal justice application of the ICC to paint the court as an imperialistic tool that 
should be opposed . This has been the case with the North African States namely 
Libya and Algeria ; though there is a somewhat unanimous view of these opinions 
some countries are using it to embrace their interests rather than act in the interests 
of all. 
Patel (2013) has expressed these views further by going against the view that there 
is some kind of conspiracy that the ICC has formed against Africa. There is no 
conspiracy neither is the AU to be thought of as an African rights defender against 
the mighty Western nations. He claims that the AU is nothing more than an exclusive 
club for the presidents of African nations out to protect each other as members of the 
elite club such as al-Bashir and Kenyatta . By getting the two leader out of the 
prosecutions this will ensure the protection of the other members in future should 
they have any legal problems. This claim goes with the point that an African leader 
will now maintain staying in power for extended terms to avoid prosecution and the 
victims of those leaders will never get justice as they will now have to wait for the 
leader to retire from office in order to get justice as the leader stays in power for 
more terms than he should. This is not new to African leaders as they have forced 
themselves to stay in power from independence to today. The Arabic uprisings in 
North Africa were a result of presidents who do not want to give up their power. 
Presidents like Robert Mugabe still maintain power. How then will a person like that 
ever be taken to court, as it is this very technique argued against that al-Bashir is 
using to stay out of the ICC. 
Patel (2013) has expressed a neorealist theory approach to this ICC/AU relationship , 
where he focuses on African leaders motives as compared to the good of their 
nations. In his work Patel reveals that African leaders aim to survive by maximising 
their relative power where only they gain, with their biggest priority being about 
warranting that the Presidents themselves are protected from justice whatever the 
cost, as compared to development, good governance or even respecting basic 
rights. The notion of having a sitting Head of States provided with immunity from 
,c 
facing prosecution for genocides, war crimes and crimes against humanity does not 
protect the people but it is self-serving on the part of the AU leaders. It is 
unacceptable to do so, given the kind of encouragement it would then create for all 
those in power to never leave and therefore use all they have to continue being in 
power at all cost including coups, murder, intimidation, even fraudulent elections. 
Patel's work communicates the fear of a completely powerful AU without the ICC 
given the history of the continent. 
The dispute that the Court is being anti-African and unfairly targeting Africans, 
although there is some truth to it, it is not entirely correct as realised . This results in 
the fact that to date Africa has the most instability and highest rate of conflict and war 
than any other regions of the world. Therefore it is worth concluding that it is bound 
to have the most cases of crimes against humanity than any other region. The 
majority of the cases investigated will be from the continent; many of which came as 
self-referral by African states themselves, the other two were UNSC referrals (Darfur 
and Libya) and the last of these was the Prosecutor acting independently by 
investigating Kenya and the Ivory Coast. Even with this being the case the bulk of 
the African officials and views on public debate maintain that this is a ploy by the 
West on Africa. This is because the ICC has failed on numerous occasions to act 
elsewhere in the world even when requested to, while protecting leaders from 
powerful countries as well as those that they protect and their less powerful 
counterparts when it is deemed necessary to prosecute them. 
However, even with all the negativity that surrounds the ICC/AU relationship there 
has been diverging African opinion about the ICC, proving that the Court 
nevertheless continues to enjoy strong support across the continent. There may not 
be many, but African states have continued to ratify the ICC treaty. Tunisia is one of 
the countries that have acceded to the ICC treaty increasing the numbers that 
occupy the Assembly of the court to 32. Other party states have also been working 
with the liaison office of the court in Addis Ababa even with the resistance requested 
by the AU (Keppler, 2011 : 7). Botswana has been the most vocal of the countries or 
maybe the country that has continued to disregard the AU's request for non-
cooperation with the court which resulted from the 21 st Summit. These actions 
reiterate that not all African countries are against the ICC as some have a continued 
hope that it will bring about changes for them with backing from the civil society. 
..., "7 
2.3.6 The ICC/AU relationship: the way forward and future aspects 
However, even with all the positivities that have occurred within the AU/ICC relations 
there still remains a high degree of disregard for the ICC as an institution among 
Africans. The unfortunate part though is that in actual fact, because of Article 27 of 
the Rome Statute African states who are party to the Statute put themselves in a 
compromising position when ratifying the Statute. This is because the article allows 
for Heads of States and their colleagues to be brought to justice even when in office. 
The only way to reverse this, would be through an amendment process of the Rome 
Statute. This in consequence means that even with all the issues surrounding the AU 
and its decisions concerning the ICC, the AU summit request will however still not be 
considered and is not legal. Kenyatta and Ruto will have to continue and allow their 
trials to commence as they are bound by the laws of the court (Dersso, 2013). The 
same thus applies to President al-Bashir. The only other option the AU will have in 
regard to the cases of Kenya and Sudan is having the UNSC defer cases. 
Unfortunately there is no guarantee that this chance will ever present itself, nor is it 
guaranteed that the results be those expected by the AU . 
Being unable to revoke article 27 of the ICC Statute should not be the point of 
departure for the AU in respect to its relationship with the ICC. The AU is urged to 
remember the reasons it became Parties to the court and why the continent needs 
the court by simply looking back into its history. The inability to protect the 
constitutional duties of the President should not be a reason to act hastily as echoed 
by the Chairperson of the AU hence the continued relations even in times of 
disagreement. The AU and ICC are to work together and the AU is to respect the 
laws of the court as it has a third of its members as signatories of the ICC. AU 
members contributed immensely to the establishment of the court and because of 
this there is an ensured promise for justice to millions of victims of human right 
violations throughout the continent. This progress is not to be undermined by a 
selected few who seem solely interested in self-gain. Having deferrals will only keep 
justice away, which might also lead to repeats of these monstrous crimes committed 
in Africa and allow impunity to continue (Amnesty International, 2013). Event such as 
the 1994 Rwanda genocide are to remain in the past, with the presence of the court 
maintaining this reality does not seem that far-fetched. It is because of these issues 
that the relationship between the two organisations needs to be reviewed . 
The essence of both institutions is the overcoming of impunity, serious crimes that 
have international concern and the violation of human rights. It then goes without 
saying that a mass withdrawal from the ICC by Africans and the continuation of 
inconveniences in the relationship will hurt both Africa and the ICC. Africa for one 
has the highest incidences of flawed systems, human rights violations internationally 
and for reasons such as these there should be no doubt about how Africans need 
the ICC. Many of Africa's states genuinely want to end war crimes, crimes against 
humanity and genocides, being the largest bloc that ratified the ICC Rome Statute 
validated that as well as Africa 's continued support of the Court. The Court is able to 
assist in discouraging many political entities from continuing to commit these crimes 
and hence one-third of the ICC state parties are also members of the AU proving 
that the ICC too needs Africa (Maru , 2013) . 
Maru (2013) and Murithi (2013: 9) declare that, while it is evident that Africa appears 
to be at the heart of most crises situations requiring the intervention of the Court it is 
worth mentioning that the Court is not doing itself a favor by continuing the biased 
nature of: 1) only having cases in Africa when it fails to intervene in Afghanistan , 
Chechnya, Gaza, Iraq, Sri Lanka, Colombia, Nepal and Syria, 2) allowing referral 
and deferral powers to the UNSC of which three of its members are not even parties 
of the Rome Statute (US, China and Russia) 3) continued support of prosecutorial 
policy that were encouraged by the former ICC Prosecutor Mr Ocampo, and lastly 4) 
to come to the party in terms of the AU's political nature and respect the need for 
political declarations within the AU. 
The ICC needs to also respect the obligations of the AU to its members and stop the 
interference of Western states in the issues of the Court, and because of such 
motivations the AU ought to keep putting pressures on the ICC and also on the 
UNSC to start addressing Africa and AU's major concerns. The AU has regional bloc 
advantage and through that, the AU is to ensure that its concerns about the Courts 
operations and its frequent request for reform as the withdrawal of the UNSC referral 
and deferral powers to be rather transferred to the General Assembly of States 
Parties to the Statute or if not the UN General Assembly would be a better fit as 
compared to the UNSC. And at the same time it is to develop mechanisms that will 
strict enough for Africans to ensure accountability of all states parties of the ICC. It is 
thought that these actions will enable AU/ICC relations to move forward and expect a 
better relationship will emerge. 
2.4 Conclusion 
This chapter presents the theoretical framework of the thesis , which makes use of 
Weltman's systemic theory of politics and international relations to better portray the 
relationship between the ICC and the AU. The systems theory is used to generally 
explain the relationship , however, in social sciences there is no one theory to explain 
human activities let alone the entire relations between the ICC and AU. The thesis 
therefore makes use of numerous other theories to counteract and support the 
systemic theory as the neorealism and peripheral realism theories and the 
structuralism and rationalism theories. The chapter also reviews the literature of 
various authors in related topics and how they have conveyed the relationship 
between the ICC and the AU . It makes note of the work of seasoned authors such as 
Du Plessis and Murithi, Maru, Dersso, Patel and Keppler to explain the current state 
of affairs of the relationship between the ICC and the AU. The literature review 
documents the situation in Sudan and ICC's case against al-Bashir, the Kenyan 
situation and the ICC's case against Uhuru Kenyatta, the proceedings of the 
extraordinary session at the AU headquarters in Addis Ababa. Then the reviews of 
the summit and overall literature on the ICC/AU relations and lastly the ICC/AU 
relationship: the way forward and future aspects. These are used to explain the 
relationship of the ICC/AU, the factors influencing the current position of the 
relationship and the future of the relationship . 
Chapter Three 
3 Data analysis 
3.1. Introduction 
From the secondary data collection method used in the study, the data analysis will 
therefore follow a descriptive method to analyses the data provided from the 
literature review and therefore make an assessment of the relationship between the 
ICC and the AU. This method will be used to answer the three research questions in 
summary in this chapter: 1) what is the relationship between the ICC and the AU , 
with focus on Africa? 2) what are the factors influencing the current position of the 
relationship? 3) How does the future for the ICC/AU appear from the current 
relationship? The chapter ends with the conclusion of the work providing insight, 
observations and recommendations . 
3.2 The involvement of the ICC in Africa and the response of the AU to the 
Court's efforts and a way forward 
The relations between the ICC and AU regarding Africa appear to be 
inconvenienced. The strong stand in support of the ICC that characterised Africa's 
positions in the early stages of international criminal justice is less evident today. 
This transformation tracks a broader 'push-back' in contradiction of the ICC on the 
African continent. Countries in Africa have been actively involved in the 
establishment of the ICC and the Rome Statute since the negotiations for setting up 
the court began in 1998. Africa's support can be traced back to 2002 when the Rome 
Statute was entered into and 31 , of a significant proportion of supporters of the 
Statute were Africans and the number rose recently. The relationship has however 
deteriorated through the years following recent events. The year 2009 was arguably 
the most disorderly in the ICC/AU relations. The start of this disorder began with the 
warrant of arrest that was issued to the Sudanese President Omar al-Bashir by the 
court on charges of crimes against humanity, genocide and war crimes committed in 
the continued Darfur conflict. 
That was the flashpoint of the conflict between the two institutions with suggestions 
from the AU that the ICC is an imperialistic tool for the Western powers to use by 
specifically targeting cases in Africa and therefore discrimination against it. This the 
,, 1 
AU explained as having undermined its ability and the ability of its national leaders to 
resolve the problems on the continent. There were then numerous complaints and 
criticisms of the court, mainly because of the UNSC's referral of the Sudanese case 
to the court and the indictment of the country's first citizen. Through the AU, African 
states therefore called on the UNSC to invoke article 16 of the Statute and therein 
defer the ICC from investigation of al-Bashir. 
The matter escalated following the presidential elections in Kenya in 2013. The 
elections ended with the victory of President Uhuru Kenyatta being democratically 
elected by popular votes. The problems occurred when the newly elected President 
Kenyatta took advantage of the cases opened against him and his deputy by the ICC 
when tension between popular sovereignty and demand for international justice 
occurred. At the AU summit he expressed these views and was exceedingly 
supported by his fellow African leaders. Kenyatta and Ruta were both accused of 
contributing to the crimes committed against humanity during the 2007-8 violence in 
Kenya in 2010 when the Prosecutor Ocampo announced their indictments together 
with six other people. Following this an AU summit was launched and the AU 
adopted a decision to not work corporately with the ICC should it not refer back to 
Kenya the case it had against its President and his deputy. 
The Security Council chose not to consent to the request made by the AU for both 
the deferral of the Sudanese investigation and in the case against Kenya, the ICC 
suspended the appeal. Complaints by AU members intensified about how the 
Security Council is ignoring Africa's calls for peace while putting law and justice 
before progress of nations. And after the Kenyan case an extraordinary summit by 
the AU was convened in 2013 to further debate the future of the relationship Africa 
had with the ICC. At this point the African perception of the ICC was unclear. The 
ICC had disregarded the AU 's request for the deferral of the cases of two Heads of 
States. The AU questioned Head of State immunity under customary international 
law known as article 98 and 27 of the Rome Statute. The ICC counteracted this 
through Article 27 of the Statute which explained that as long as a nation signed the 
statute it is bound for prosecution by the existing rules of the ICC even for a high 
ranking official like a President. Africa once again had reason to question the ICC's 
operation with regards to Africa. 
Due to the failure of this law applying universally, Africans came to the conclusion 
that the ICC was unfair and unjust, focusing solely on the African continent when the 
court was required elsewhere in the world, as in Gaza, Iraq and Syria to name a few. 
The court allowed interference by Western powers and emerging powers in its 
proceedings. Africa saw this as a witch-hunt against it thus creating an 
uncomfortable and questionable atmosphere within relations between the two 
institutions relations. All these events combined eventually to bring about a threat of 
complete African withdrawal from the ICC during the period pending the 
extraordinary summit in 2013. Many resolutions and conclusions were made at the 
summit however, the decision of African withdrawal from the ICC did not occur. This 
might be fortunate or unfortunate but what it means that there still remains a 
relationship between the AU and the ICC even if it is one of inconvenience. 
The factors affecting the current position of the relationship between the ICC and the 
AU may be rooted in globalisation as a result of the post-Cold War era which now 
appears exclusively to pay special attention to Africa. The controversy that surrounds 
the court may be related to the order of the international system, which is 
characterised by liberal capitalistic policies that only aim to benefit the powerful to 
the detriment of the less powerful. Professor Mamdani pointed out that this "new" 
international humanitarian order is not really "new". It is drawn from the background 
of Western capitalism, where in the 18th and 19th centuries during the colonial 
expansion, leading powers such as Britain, France and Spain had claimed that they 
were protecting the "vulnerable groups" while expanding their colonial power on the 
African continent during the scramble for Africa . The same reasoning is used in what 
many may call the neo-colonial era of Western domination of peripheral African 
states, creating a new age of the scramble for Africa (Amusan & Oyewole, 2014). 
From independence African nations have only received political independence but 
even so, the nations' policies are still a consequence of the ex-colonial powers. 
Africa has never really been "about Africa for Africa" as all of its actions were 
triggered from above (imperialist nations in the West) . Africans are unable to 
produce a complete African stance on Africa affaires. They are compelled to always 
follow what their western counterparts allow. This is achieved through the debt trap, 
foreign aid and the ever so powerful Structural Adjustment Policies. Africa however 
cannot help itself given its lack of expertise and effective institutions and systems, 
technological disadvantage and low level economies and above all , the high level of 
corruption in African countries (Amusan & Oyewole, 2014). The corruption level in 
Africa seems not to be assisting the AU's case as critics of the AU in the ICC 
situation portray the AU as a club of presidents which seeks to protect its members 
at the cost of the victims. Even at the establishment level of the ICC, African leaders 
were not only aiming for peace and stability in their countries, but rather to use the 
ICC as an instrument of checking against rebels and to silence oppositions that may 
restrict their terms in power. 
Given the nature of the world order and the events that have occurred between the 
ICC and AU there is no doubt that there is foul play. The court came into existence 
under the illusion that it would assist Africans and was glorified by NGO's as being a 
good initiative to assist Africa with the atrocities of the conflicts that had emerged . 
The truth is that the ICC does not have the wellbeing of Africa at heart but rather 
maintains its existence by employing Western policies to assist its budget and 
expand power into Africa . The fact is that although the Statutes so highly regarded, it 
came into effect with less than half the world 's nations ratifying it, 60 out of 189 UN 
Assembly members. These were states that did not even have that much impact in 
international affairs. This number is not enough for a court to claim it has worldwide 
jurisdiction, more so, for it to claim this jurisdiction even over citizens of countries 
that did not sign the treaty such as Sudan. These imbalances have all contributed to 
the factors that make the relationship between the ICC and AU what it is today. 
The continued disregard of AU requests by the ICC to the deferral of standing Heads 
of States in respect of their national sovereignty has proven the imbalances and 
contributed to the perception of the ICC being unfair and unjust. The ICC's inability to 
equally apply policies it has in Africa internationally has even worsened the relations. 
This focus on Africa is justified as all of the court cases have truly only been in Africa 
while in the meantime there are "vulnerable groups" elsewhere around the globe. 
The court is unable to politicise its institution to correspond with the nature of the AU , 
while similarly the AU is expected to respect its judicial nature but it cannot waive its 
power in respect of African peace-keeping and national stability. The interference of 
western nations as explained is a major implication of inconvenience. The UNSC 
should not have veto power over the courts dealings. Only two out of the three 
members are party to the Statute with no representation of African nations within the 
Permanent five. How this can continue is beyond rational reasoning. An institution 
that has power over the court's proceedings should at least have members that are 
parties to the ICC. 
The future for the ICC and AU's relationship has evidently been given another 
chance by the AU 's lack of withdrawal from the court. With this new opportunity both 
institutions need to consider the implications of their actions and how these actions 
affect their relationship . It is however, of great importance that the two institutions 
realise that in order for them to coexist there needs to be changes made in their 
relations. These changes would include the ICC acknowledging the factors that have 
created the current state of affairs and changing its systems to accommodate the 
AU . The AU is to make changes too. The continental body is to ensure that its 
members abide by the rule of international law, strengthen their policies and systems 
regarding human rights to avoid indictments and respect of the ICC Statute as 
agreed during ratification . The AU is also to ensure that the reform of the ICC is fast 
tracked and that changes to the systems of the ICC are made in order to avoid 
external interferences and injustice to African nations. Changes made by both 
institutions will reaffirm the relationship and hopefully bring about effectiveness to the 
court's impact on the continent without opposition from African leaders. 
3.3 Conclusion 
Rising out of a number of temporary and other failed tribunals, the International 
Criminal Court was established by the international community in 1998 to be a 
successful international tribunal which would be permanent and take to trial 
perpetrators of the most dreadful crimes, seeking justice for victims of these crimes. 
It was to have a Jurisdiction that covered crimes committed against humanity, 
genocide, war crimes and aggression. When the Rome Statute came into power in 
2002 July it was signed by 139 states while only ratified by 113, a significant 
proportion of the countries that ratified were the African continent. African nations 
formed the growth that led to the establishment of the court, and were fully involved 
in the making of this institution which however, they have in recent years come to 
disregard and accuse the Court of being "unfair and unjust" against them. 
When assessing the relationship that exists between the AU and the ICC currently, it 
is worth noting that Africans themselves signed the Rome Statute with no super 
AC 
power enforcing this but rather for the simple reason of the court being necessary for 
the continent. Africans themselves ratified and signed the Statute with no Western 
power threatening to take away foreign aid, increase debt collection, nor even to 
boycott their products among other possible threats. This is to say that African states 
had to have known what they were getting themselves into before ratifying the Rome 
Statute. Senegal was one of the first countries to ratify the Rome Statute, after that 
followed many others like South Africa which included the Statute as one of the well 
respected laws in the land . Regional blocs like SADC contributed largely to the 
enforcement of the Statute and Non-governmental Organisations (NGO's) from 
around the continent lobbied for it. This is to say the very same Statute that has 
come to be a problem for African states, was one that was favored by them from the 
beginning. How then had the Statute come to be regarded as unfair and a tool of 
western powers targeting Africa? Africans must take note that they wanted the ICC's 
creation and they contributed to the establishment and therefore should have 
included all their values, views, requests, recommendations and interests from the 
beginning as they thought they did . The Western nations did , why not Africa? 
It wouldn 't be wrong to state that Africa in the course of enforcing the principles of 
the ICC on their continent repeated the same mistake they make in all institutions 
they join. Falling behind in what they signed up for, it has been seen in Africa's 
relations with the IMF, World Bank, WTO and in individual bilateral agreements they 
joined. African states always find themselves to be the tails following the lead of 
other powers. This may have resulted from the clearly undisputed environment 
created by the international system of North and South, where the rich get what they 
want and the poor beg and shadow them. Even though this is the case, Africa better 
start making some changes in the way it runs its agreements and start leading their 
continent instead of always following . 
The Rome Statute evidently explains that the jurisdiction of the ICC is either 
summoned or triggered by self-referral, referral from the UNSC and the OTP for any 
of the crimes it covers. This therefore explains why and how it can indict President 
al-Bashir despite the criticism from African states. The cases being investigated and 
launched by the ICC are from Africa. The Sudan-Darfur conflict case, was 
recommended to the court by the UN Security Council as it possibly merged with the 
foreign policies of the very institutions that referred it, the US and European powers. 
AC 
The Kenyan case was the first that the Prosecutor investigated "independently" and 
referred it to the ICC following the CIPEV findings . As a collective these 
investigations somehow seem to coincide with a reintroduced drive of the US and its 
European counterparts to take control of African raw material once again. Recently 
emerging powers like Russia and China are following suit in regards to take over the 
struggling South, not only in Africa but judging the two states protection of Syria, 
mixed interest come to mind. 
The UNSC referred the ICC to investigate al-Bashir and it thus credibly accused him 
of having committed war crimes in Darfur as well as crimes against humanity and 
genocide. The ICC therefore has reason and ability as it is in its jurisdiction despite 
Sudan not being party to the court as in Kenya, but Kenya is a State Party to the 
Statute as its withdrawal is still pending. It is because of these indictments that the 
leaders of Africa are questioning the ICC's prosecutions, as these are sitting Heads 
of State and one (al-Bashir) is not even party to the ICC. Therefore, Africa seeks for 
the deferral of these cases having openly requested this in the summit in 2012 for al-
Bashir and in 2013 for Kenyatta. 
Africa is within its right to request deferral. One of the biggest reasons for the current 
state of the AU/ICC relationship is because of the lack of universalising in the ICC. 
That the court's cases have mainly focused on Africa is no secret, though it may be 
true that Africa composes the highest number of cases of human rights offences, 
therefore committing the most crimes that constitute the ICC Statute; it is however 
also a fact that Africa is not the only region that does. Tony Blair and George Bush 
have not been subject to this jurisdiction for crimes of war and crimes committed 
against humanity in Iraq or even Afghanistan. How do their actions differ from that of 
al-Bashir's and Kenyatta? Inside Story (2012) revealed that 240 communications 
about the invasion of Iraq was received by Moreno-Ocampo in 2006 but he then 
published a letter acknowledging that he had received them but yet the court has not 
shown any signs of acting on them and he is no longer in office. This is where 
African should start drawing the line, stating the facts and bringing Justice and 
fairness to nations around the world such as Chechnya, Sri Lanka, Colombia, Nepal, 
Gaza, China, Ukraine, Russia , Vietnam and Syria. 
,1 "7 
In its discouragement of the Court during Clinton's administration the US mentioned 
the danger of politicised prosecutions of the ICC. The US claimed that the court was 
autonomous as an institution answering to nobody, no state nor institution. Therefore 
it concluded that without external checks on the court and its prosecutor, there is not 
enough protection for nation states against the possibility of politicised prosecution or 
maybe other abuses as well. President George W. Bush on the other hand went 
further than Clinton when he adopted the American Service Members Protection Act 
2002 and went against the ICC. It became known as "The Hague Invasion Act". The 
Act was formulated in such a way as to protect the US and US citizens (the troops) 
from going to The Hague by threatening all American lawyers not to assist in any 
cases that may result in those protected under the act going to the ICC. To 
aggravate their stance on the ICC the US even made members of the Statute sign 
bilateral immunity agreements which would then exempt US citizens from being sent 
to the ICC by other states, those who did not sign were cut off from foreign aid. It 
used its power as an international hegemonic power to endorse and pursue the very 
danger of politicised prosecutions they warned against (New Africa magazine, 2012) . 
The warn ings against political prosecutions that the US was so vocal about, by 
states who wish to follow a political vendetta , was exposed by the actions of the US 
when it had an anti-Sudan agenda by pushing forward the UNSC to refer al-Bashir to 
the ICC. It proved its own point about the ICC, however; only those that are weak 
and under attack for their minerals will be on the receiving end of this political 
agenda, as in the General Agreement on Trade and Tariffs (GATT) and other 
international institutions such as the IMF, World Bank and WTO. It is not possible to 
divorce politics from international organisations and it becomes selective to those 
who are politically favoured , wanting assistance from allies, while for some reasons 
withholding it from other states (Balaam & Dillman, 2011 :140), as in the case of 
Africa which in all mentioned institutions remain inferior while others have 
preferential treatments and use economic power to achieve their foreign agendas. 
It is commendable that Africans have shown unity in the disagreement with the ICC 
even in countries like South Africa which state that they will abide by the law of the 
court but still remain reluctant to make an arrest, and Nigeria which announced its 
intent to support the AU 's resolution on not cooperating with the ICC. There needs to 
be greater change then unity to bring forth equality to the ICC and prevention of 
,. 
,,o ... a'-f\.! ll-i 
outside influence. There are events occurring in other parts of the world that require 
just as much attention as the prosecutor of the ICC gives to Africa. There is an 
imbalance in the justice system of the court and the ICC together with those who 
lead and control it need to start taking it seriously and concentrate on other parts of 
the world and not only Africa . The AU needs to continue urging for a reform for the 
ICC to eliminate the influence on the court of powerful nations through the UNSC. 
Regardless of these findings, it is however concluded that there still remains the 
possibility of the ICC/AU relationship being a "win-win" situation for all if all 
necessary measures are taken. 
AO 
Chapter Four 
4 Summary, recommendation and conclusion 
4.1 Introduction 
This last chapter is divided into three sections. First is the summary which gives a 
discussion of the findings. Then the second part is the recommendations of the study 
explaining possible solutions and other topics that can be studied from using this 
research. The last section is the conclusion which simply sums up the discussed 
topic and ends with the list of references. 
4.2 Summary of the study 
The first chapter produced the introduction to the study by discussing the 
background of the study, problem statement, research question, aims, objectives, 
data collection, method of data analysis, limitations and delimitations, scope of study, 
significance of the research and the research methodology. 
The second chapter discussed the theoretical framework of the study and the 
literature review. The study used a theoretical framework of systemic theories of 
politics and international relations. The systemic theory was then incorporated and 
contrasted with the neorealism theory and the imperialism and dependency theories 
under the umbrella of the peripheral realism theory. 
The literature review provided a detailed discussion of all the previous studies done 
on the topic of the ICC and AU's relationship of inconvenience. The review 
discussed the ICC/AU relationship from the genesis of the relationship to the 
indictments of the Heads of States of Sudan and Kenya. It further examined the 
developments made from the cases and the results of these cases on the 
relationship between the two institutions, the way forward based on literature 
presented in this field by various writers and sources, and their recommendations for 
the current state of events in the ICC/AU relationship. 
The third chapter explained that from the type of data collection the study used the 
charter analysis data using the descriptive method of analysing data. This method 
was used to answer the three research questions: 
,..,... 
1) What is the relationship between the ICC and the AU , with focus on Africa? 
2) What are the factors influencing the current position of the relationship? 
3) How does the future for the ICC/AU appear from the current relationship? 
The fourth chapter provides the study with a summary, recommendations and 
conclusion . 
4.3 Recommendations 
If the ICC does not want to become another failed international tribunal , it needs to 
start making some changes predominantly in its relations with Africa and so does the 
AU . Africa is a continent that has witnessed the most heinous crimes. The instability 
of many countries' politics, civil wars and genocides as well as many other atrocities 
have occurred on the continent. It is thus important to note that African nations 
should be celebrating the work of the ICC rather than denouncing it. It is realised 
that the ICC has managed to prosecute perpetrators for crimes they committed 
against humanity therefore giving hope to the victims of their actions. However, with 
the same importance it must be stated that there needs to be changes within the ICC 
and AU in order for their relationship to continue in cooperation and integrity. 
The claim of the ICC's unfair focus on Africa may be highly exaggerated , but has 
some truth. It is important to evaluate the cases of Africa conducted by the ICC 
particularly the case studies of al-Bashir and Kenyatta . The Court in its short life has 
had two prosecutions; that of DRC's rebel boss Thomas Lubanga Dyilo and Libya's 
blood diamond king Charles Taylor, giving the ICC credibility and showing that it 
does promote justice. However, the case of Taylor is deemed to be relevant to the 
cases of the two currently indicted presidents of Sudan and Kenya. Like al-Bashir 
and Kenyatta , Taylor was a head of state when the Court was investigating him. 
However, in the case of Taylor, with interference from the US and the UN, Taylor 
was out of office before he got his indictment. This shows how effective the ICC 
could have been if it had followed this route in the case of al-Bashir and Kenyatta 
and his deputy Ruto as well (Du Plessis, 2010: 38) (Vine, 2012) . 
This brings us to the question of why does the ICC have authority over a head of 
state despite immunity of a Head of State as proclaimed under customary 
l'."1 
international law by article 98 and 27 of the Rome Statute. This law was set out to 
protect the sovereignty of a nation and its leader as regarded by international law. 
How is a country to have the quality of having supreme, independent authority over 
its territory if it is constantly interfered with by the Court? The ICC should respond 
and respect Africa's request through the AU's call for the UNSC about possibility of a 
deferral the ICC's indictments of al-Bashir and Kenyatta by summoning article 16. 
However, in this case the Assembly is requesting the UNSC to honour its request. 
Unfortunately or fortunately the above mentioned suggestions were not followed and 
the ICC has found itself sleeping with the lions as the AU has brought it into 
disrepute and it has exposed the AU for also possibly being a leaders' club then a 
continental organisation considering its population. The constant involvement of the 
western nations and emerging powers in the cases and referrals to the ICC as in the 
case of al-Bashir, despite his country not being party to the Court, should be 
minimised. The UNSC's power of referral and deferrals should rather be transferred 
to a body that would be representative of the State parties, an organisation such as 
the State Parties as the General Assembly to the ICC or rather the UN General 
Assembly. It should not be left to the judgment of the UNSC of which three of its 
members are not member states of the ICC. And the continued support for former 
ICC prosecutor Mr Ocampo's policies needs to be ended and rather the prosecutor 
should universalise his cases aimed at international justice to include other regions 
of the globe and not only focus on Africa by making a case where one law applies to 
the powerful while another applies to the weak. By doing so the current prosecutor 
Bensouda may assist the Court to demonstrate that it is credible as a judicial 
institution which is protected from external influence. 
As African states were highly involved in the internal creation of this international 
institution , they should be able to make references and contribute to the shaping of 
the future of the ICC, call for changes and improvements of the Court's systems and 
with that a better relationship and acceptance between the ICC and Africa will 
emerge and the international tribunal that was longed for at its establishment will 
therefore come to pass. Yet again the AU may focus on fast tracking the institutions 
of the African Court and therefore withdraw completely from the ICC, though it is 
highly unlikely. 
c-, 
4.4 Conclusion 
This thesis has discussed the creation of the ICC and the ratification in 2002 of the 
Rome Statute by many states from African and other sectors of the continent. It has 
shown how the Court and its Statute which was largely supported by Africans in the 
hope that it will restore peace and security to the continent has come to be under 
serious scrutiny and criticism from the very countries that helped establish it. The 
Court has come to be regarded as a tool for the West unfairly focused on Africa 
while having double standards. This is then said to be undermining Africa rather than 
helping it solve its problems in terms of the Sudanese and Kenyan President's 
indictments by the Court, by putting justice over peace and conflict resolution . This is 
the standpoint of Africans while in all fairness the very introduction of the court was 
that it will recognise that Africa has experienced grave crimes that have threated its 
move for peace and security as well as the well-being of the entire world . It is 
therefore expected of the court to further elaborate how it will contribute positively 
towards peace in Africa's borders, beyond only ensuring the punishment of 
perpetrators and the crimes committed (Murithi , 2013: 8.). 
The relationship between the ICC and AU declined after the indictment of President 
al-Bashir based on the UNSC referral and took a further nose dive after the 
indictment of President Kenyatta and his Deputy. The Rome Statute has clearly 
proven that the case against al-Bashir is legitimate, but the issue is that AU 
representing African states, called on the UNSC to defer the court's investigations 
against sitting Heads of States by invoking article 16 of the Rome Statute and this 
has not been dishonored by the UNSC. Sudan did not become party to the ICC 
Statute and Kenya is in the process of attempting to withdraw from the Statute. 
However, to date the Security Council has disregarded the AU's request for the 
deferral of both the al-Bashir and Kenyatta cases. The former still has an arrest 
warrant against him and the latter is to be on trial. It is true that Africa is a continent 
that has experienced atrocities for centuries and the ICC was to be an institution that 
restores peace to the continent. Although justice has been witnessed through the 
prosecution of Lumbanga and Taylor, the AU aims to proclaim and emphasise that 
"these are sitting Heads of States". However, at the same time the exploitation of the 
ICC by Western powers and emerging powers and the geographical restrictions of 
the Court cases all seem to be a major concern and setback to AU/ICC relations . 
What this thesis has shown is that the relationship between the two institutions (ICC 
and AU) has proven to indeed be one of inconvenience for both parties. The one is 
faced with the overwhelming responsibility of being an international judicial 
organisation aimed at promoting a legal stand point and pursing justice, while the 
other is a political organisation emphasising peacekeeping and political 
reconciliation . From the start the relationship was in trouble. The inability of the ICC 
to politicise its interaction with the AU , the request for deferral as well as the UNSC 
involvement in the ICC and its focus mainly on Africa and the AU 's continued 
disrespect of the ICC's ruling - the resolution of non-cooperation and the refusal to 
arrest, have all brought about the current state of affairs of the ICC/AU relation . 
There has not been a key event such as a withdrawal of an AU member state from 
the ICC to completely write off the possibility of salvaging the relationship nor is there 
a sign of the culminating of the relations either. And because of these reasons it is 
recommended that the ICC and the AU both reorient their stance towards each other 
in order to create a way forward. 
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