Prosecuting International Crimes in Africa - PULP - University of ...

282 Chapter 13
countries has tended to weaken the states’ capacities to effectively and
efficaciously investigate and prosecute the crimes within their own
territories. It is also arguable that the three referrals that have been made
to the ICC are premised on a candid appreciation of the limitations that the
referring states would face if they were to investigate and prosecute the
matters themselves. Thirdly, and connected to the second point, it is often
the case that in weak states, the competing demands on national resources
do not allow for the allocation of sufficient resources to investigate and
prosecute the offences in question. The most common deficiencies in this
connection are the lack of finances and personnel. Lastly, bearing in mind
the fact that the ICC is established as a court of last resort, its relevance for
Africa is pronounced in those instances where other means of resolving the
conflict have been tried but failed. It is clear, for example, that various
reconciliation mechanisms, including amnesties, have been tried and
failed in the DRC, CAR and Uganda. It is for such situations that the ICC
retains great relevance as an instrument that can bring about an end to
impunity.
It must, therefore, be clear from any analysis of the developments
surrounding the ICC and Africa that the Court is not necessarily picking
on African states for persecution and victimisation in an imperialistic
manner. Those that emphasize the fact that the Court is only investigating
African situations deliberately fail to concede the fact that the Court is also
investigating situations in Colombia, Afghanistan and Georgia, among
others. 29 Needless to state that, should the evidence from these
investigations meet the necessary threshold, the Court will be obliged to
issue warrants and commence prosecutions. Only if the Court fails to
proceed in, for example, Afghanistan, Georgia and Colombia, in spite of
massive evidence of the commission of the Rome Statute’s crimes, would
it be plausible to argue that the Court is picking on African Countries. It,
therefore, behoves African countries, as active participants in the creation
of the edifice that is the International Criminal Court, to continue
supporting the Court in all manner possible. It is within this spirit that one
must understand the resolution adopted by the African Commission on
Human and Peoples’ Rights in which it urged member states of the AU
(then OAU) to ratify the Rome Statute urgently. 30 It is also important that
in its Resolution the African Commission on Human and Peoples’ Rights
also urged member states of the AU to rapidly incorporate the Rome
Statute into their domestic systems.
29 Coalition for the International Criminal Court (n 14 above).
30 ACHPR /Res 59 (XXXI) 02: Resolution on the Ratification of the Statute of on the
International Criminal Court by OAU Member States (2002).