The (Non-)Use of African Law by the International Criminal Court

Abstract

Abstract All defendants before the International Criminal Court (ICC) to date have been African, with their alleged crimes having been committed, at least partly, on African soil. When turning to national laws to resolve issues of interpretation in these cases, should the ICC see whether it can use laws of the African state in which the crime occurred? This article argues that it should, but observes – from a dataset of 16,192 citations containing over 200 citations to national laws – that it rarely does. Instead, it turns much more often to Western European and US laws. This phenomenon, the article suggests, troublingly reflects and perpetuates the marginalization of African and other global South laws from what constitutes international law. The article also argues that the Rome Statute requires the ICC to at least examine for appropriateness the laws of a subset of these neglected systems (‘the national laws of States that would normally exercise jurisdiction over the crime’) when identifying general principles of law. There are several compelling reasons to extend this examination requirement to African and other global South country laws more broadly, and even when not dealing with general principles of law, and few reasons not to.