Abstract
It is close to a decade now that tensions continue to obstinately persist between the International Criminal Court (ICC) and the African Union (AU) to the point of numerous threatened en masse withdrawals by African States from the Rome Statute. This, automatically following in the wake of an all exclusive
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African caseload comprising influential African Heads of State, all of whom have been indicted by the ICC. As a result of these ongoing tensions a legitimacy crisis of the ICC in Africa has been predicated on this basis with the foremost accusation labeling the ICC as a neo-colonialist organization bent on derailing peace and sovereignty in Africa. The main aim of this thesis is therefore to determine whether the ICC is indeed suffering from such a legitimacy crisis particularly within the African Union, and then by extension in Africa, and to subsequently explore and reduce this legitimacy crisis under the common identified legitimacy deficient fault lines. As such, this research aims to address identified rifts, propose solutions and enhance the legitimacy and efficacy of the ICC and its Prosecutor within the African Union and most importantly within Africa. The end goal of this thesis is thus to facilitate what might be considered a type of political reconciliation between both institutions, a rebuilding of the fractured relationship that now supposedly exists between the ICC and AU. The latter goal of reconciliation is considered crucial not only for the development and protection of human rights in Africa, particularly in terms of combatting impunity, but also is considered pertinent for an in depth understanding of human rights and its trajectory on the African continent which necessitates a deeper acknowledgement by the ICC and affiliated proponents on the dynamics that shape the African response to pivotal ICC criticisms. The core research question under investigation in this book is therefore: “Which factors are currently contributing to the presumed erosion of the legitimacy of the ICC and its Prosecutor in Africa and how can they be redressed?” This main research question is further divided into three sub questions two of which stem out of the findings emanating out of the first sub question. The first sub question begins by addressing the section on the institutional legitimacy of the Court and examines the question “How do African leaders and more so the African Union perceive the legitimacy of the ICC and how do they build their own legitimacy? In follow up to this question the second sub question focuses on the jurisdictional legitimacy of the Court and asks the question “How can a balance be found between local justice and the jurisdiction of the ICC?” And finally the third and final sub question investigates the topic of cultural legitimacy as it relates to the ICC and posits the question “How can international criminal law be adapted to deal more effectively with “African” cultural paradigms?” The methodology used to answer these questions relies on an innovative mix of legal and social science methods, comprising the qualitative method of grounded theory. Ethnographic material also served as an additional source augmenting the legal analysis made.
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