The International Criminal Court will remain a viable institution, but a confluence of interests resistant to its prerogatives will restrict the court's ability to investigate and prosecute crimes against humanity in Africa. The International Criminal Court's latest debacle began at the African Union summit in South Africa on June 14-15. Human rights activists and several Western governments, including that of the United States, criticized the South African government for failing to comply with its International Criminal Court treaty obligations when it declined to arrest Sudanese President Omar al Bashir at the summit.
The South African government, led by the African National Congress, responded to these criticisms with five arguments. First, Pretoria asserted that the African Union's principles provide immunity for all summit activity and that South Africa should not have been expected to detain the Sudanese president. The government also said compliance with the International Criminal Court is voluntary, even for signatory members. Third, it argued that the court focuses disproportionately on conflicts in Africa and Eastern Europe. It also pointed out that the court is no longer used as a tool of last resort in prosecuting crimes against humanity and is improperly used as the most favored method of prosecution. Finally, Pretoria accused the court of no longer acting as a fair and independent institution.
There is no consensus in Africa as to whether the International Criminal Court has abused its role or whether it has been prevented from carrying out its proper role. Nevertheless, the states opposed to or resistant to the court are gaining influence on the matter. Namibia, for example, has said sitting leaders should be granted immunity from prosecution. Ethiopia has argued that the principle of immunity during participation in African Union gatherings should stand. Kenya's position has been more nuanced: It refused to make its leaders available to prosecutors investigating the violence that followed elections in 2007 until the cases against current President Uhuru Kenyatta and Vice President William Ruto collapsed.
Several other African governments resist the International Criminal Court as well, likely because their leaders fear being prosecuted for crimes that they may have committed. Zimbabwe's government, for example, fears multiple charges of crimes against humanity for the ruling Zimbabwe African National Union-Patriotic Front's actions against its political opponents. Other sitting governments likely fearing prosecution for alleged crimes committed during their rule include Ivory Coast, Rwanda, the Democratic Republic of the Congo, Ethiopia and Eritrea.
