Investigating the Topography of African Resistance to the ICC: Between Sovereignty and Atrocity Crimes

International criminal law (ICL) holds individuals criminally liable for acts committed in service to the state. While this practice permits the adjudication of atrocity, it also erases context and often serves to absolve structural, institutional, or governmental responsibility for crimes. By making individuals answer for collective crimes, ICL is blind to how defendants are constructed by, and representative of, states. This paper examines the problem of state responsibility in ICL through an analysis of African state resistance to the ICC and other international judicial institutions. The contemporary African push-back against the International Criminal Court (ICC) is a mainstream topic in ICL. Yet such push-back is often discussed as if it were homogenous, when it is not. Certain criminal justice practices have engendered widespread opposition in Africa but others have not: Al Bashir’s indictment by the ICC has been loudly and publicly challenged by African ICC member states, while Chad’s ex-president Hissène Habré was quietly, and uncontroversially, sentenced to life in prison by a hybrid tribunal in Dakar. The paper identifies patterns of African resistance to international criminal justice to theorize the balance between individual responsibility and collective context in African constructions of sovereignty. The paper demonstrates how African constructions of sovereignty, particularly the balance between the individual and his community, explain which instances of international criminal justice are politically acceptable. It concludes by analyzing the Malabo Protocol’s granting of sovereign immunity and the African Union’s introduction of sovereign term limits as an alternate to international criminal law’s proffered rule of law constraints on sovereign behavior.