The ICC's Africa Problem: Why Nearly Every Early Case Involved an African State

The International Criminal Court, established under the Rome Statute in 2002 to prosecute genocide, war crimes, and crimes against humanity when national courts won’t or can’t, spent roughly its first decade of operation with an unbroken record: every single individual it formally charged was African. By the mid-2010s, the court had opened investigations into situations in countries including Uganda, the Democratic Republic of Congo, the Central African Republic, Sudan, Kenya, Libya, Côte d’Ivoire, and Mali, and its list of active arrest warrants and prosecutions was, for years, exclusively African, a pattern that became one of the most persistent criticisms leveled against the court by African governments, the African Union, and outside legal scholars alike.

The picture is more complicated than the raw numbers suggest, though not fully exonerating. A significant share of the ICC’s early African cases arrived through self-referral, meaning the governments of Uganda, the Democratic Republic of Congo, and the Central African Republic voluntarily asked the court to investigate crimes committed on their own territory, generally against rebel groups or armed factions the referring government itself was fighting. Côte d’Ivoire separately accepted the court’s jurisdiction on an ad hoc basis before formally joining. Only Sudan and Libya were referred to the ICC by the UN Security Council over their governments’ objections, and Kenya’s case originated from the court’s own prosecutor opening an investigation independently, a distinction scholars studying the pattern argue matters, since it means most African cases weren’t simply imposed on unwilling states from outside.

That distinction hasn’t satisfied critics who point to the court’s inaction elsewhere as the more damning half of the pattern. The ICC has faced sustained criticism for the situations it has been slow to pursue or has avoided altogether, including alleged war crimes by major world powers such as the United States in Afghanistan and Iraq, cases where the accused states either aren’t ICC members or have used political and diplomatic leverage the African states under investigation generally lacked. That asymmetry, prosecuting weaker states’ referred or investigated cases while larger powers face comparatively little accountability at the court, has fueled the argument that the “African bias” isn’t about racial or geographic targeting so much as about which states have the political weight to resist the court’s jurisdiction in the first place.

The frustration reached a formal breaking point in 2016, when South Africa, Burundi, and the Gambia all announced intentions to withdraw from the ICC within weeks of each other, and the African Union separately adopted a non-binding strategy encouraging mass withdrawal by its member states. Burundi followed through in 2017, becoming the first country to formally leave the court; the Gambia and South Africa both reversed their withdrawal decisions after domestic legal and political pushback. The episode didn’t collapse African participation in the ICC, most African states remain members, but it forced the court and its supporters into a sustained defense of its legitimacy that has shaped its outreach and case-selection strategy in the years since.