Introduction
It has been more than thirteen years since the International Criminal Court was established and started its operation on most serious crimes of international concern, namely Genocide, crime against humanity, crimes of war and aggression. The Court was established by virtue of the Rome statute as a permanent international criminal tribunal independent from other United Nations bodies. To date, all cases that have been investigated by ICC are from Africa, specifically on Uganda, the Democratic Republic of Congo, the Central African Republic, Mali, Sudan, Libya, Kenya and Cote d’Ivoire. African countries generally have cooperated in the early stages of the establishment of ICC.
Nowadays, however, it seems that the relationship between ICC and Africa is turning into a growing trend of contention. It has been a point of discussion in the academia and in the international politics as to whether the court is indeed exclusively targeting Africa regardless of their contribution and cooperation for its creation and advancement. Some commentators also argued that it is “a mechanism of neo- colonialist policy” or “post-colonial court”, especially after the issuance of arrest warrant against the current president of Sudan- Al Bashir. The former chairperson of the AU Commission, Jean Ping, expressed his displeasure on the relationship between the court and some countries in the continent as it is “unfair that all those situations referred to the ICC so far were African”, and “it seems that Africa has become a laboratory to test the new international law.” Similarly, the Benin president in 2009, the Rwandan president and the Ethiopian prime minister in 2013 have portrayed their dissatisfaction on the functioning of the court as a new form of imperialism that seeks to undermine powerless states in terms of politics and economic development. The AU has also expressed its dissatisfaction by rejecting a request to open an ICC liaison office at the head quarter of the AU, Addis Ababa.
As a result, in 2008 the AU in its 11th ordinary summit at Sharm El-Sheikh, Egypt adopted a protocol on the establishment of African Court of Justice and Human Right (ACJHR). At the time of publication five countries, namely Libya, Mali, Burkina Faso, Congo and Benin have signed the protocol. After six years, on October 2014 the AU has adopted a draft protocol on the statute of the ACJHR which specifically extends immunity to heads of governments, states and other officials before the court. While the document is still important particularly in creating regional systems for pursuing international criminal justice, it still poses a great risk on the integrity of the African court and ensuring justice for victims of serious crimes under international law. The immunity exemption clause has been criticized as it contradicts with the AU’s human rights law regime and Article 4(h) of its constitutive act which calls for intervention in case of gross human right violation.