International Law
International law comprises a set of rules and principles that govern the interactions between states (1). These rules are established through treaties that form relationships between states. Established in 1945, the United Nations (UN) aims to maintain world peace, protect human rights, and support social and economic development (2). Despite these goals, the UN has faced challenges in preventing catastrophic conflicts and addressing ongoing crises, such as those in Ukraine and Palestine. The UN and the International Criminal Court (ICC) are global legal bodies that drive global justice.
Founded in 2002, the International Criminal Court (ICC) represents a significant development in seeking justice by prosecuting those responsible for crimes against other humans, war crimes, and genocides (3). The difference between the International Courts of Justice (ICJ) and the ICC is that the ICC focuses on individual behavior, and the ICJ focuses on state behavior. However, the resistance encountered by the ICC, notably from powerful states, raises concerns regarding the accountability of powerful global states (4). The American Service Members Protection Act of 2002 is illustrative of such resistance by authorizing the use of weapons through military coerciveness to liberate any US official or member from being arrested by the ICC. This resistance reflects the realist theory’s assertion that the international system is anarchic, and international governing bodies such as the ICC and UN can do nothing with powerful global states refusing to adhere fully (5). Recent events, such as the rejection by the Biden administration of the ICC’s determination of Israel’s actions against Palestinians as genocide, as well as Russia’s undermining of Ukraine’s sovereignty, underscore the impact of powerful states on international legal norms (6).
In May 2024, the Chief Prosecutor of the ICC, Karim Khan, applied for an arrest warrant against Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Galant, the Prime Minister of Israel’s Defence. Alleging their involvement in crimes against humanity committed in the state of Palestine’s West Bank and Gaza Strip since at least 7th October 2023 (7). The US supports Israel in this regard. Critically, the application of international law and its susceptibility to the influence of Western powers have transformed international legal bodies into tools for fulfilling state interests, thereby undermining their global impartiality. Similarly, Russia launched pre-emptive attacks on Ukraine after being intimidated by the USA’s influence in their region since Ukraine aims to strengthen allies with NATO (8). According to realists, the reason for Russia’s standpoint could be the security dilemma. If International Law can be susceptible to superpowers, this prompts one to question the legal quality of international law.
As much as it is rarely acknowledged, the Rome Statute, which established the ICC, contains provisions that limit the court’s authority. Notably, Article 98 of the treaty prevents the ICC from seeking the surrender of an individual from a state if doing so would conflict with that state’s international obligations (9). This provision has enabled the United States to establish bilateral immunity agreements with multiple countries, ensuring that US nationals cannot be surrendered to the ICC. Also, the ICC’s perceived lack of enforcement capabilities arises from its reliance on member states for arrests and evidence collection. This reliance renders the ICC vulnerable to non-cooperation, particularly from nations such as the US and its allies.
Furthermore, the political clout held by the permanent members of the UN Security Council, including the US, United Kingdom, France, Russia, and China, allows them to impede actions that might jeopardize their interests, thereby limiting the effectiveness of international courts. The misuse of veto power to shield nations from accountability was evident when the US exerted pressure on other Security Council members to obstruct attempts to refer its actions in Afghanistan to the ICC. As long as the US and its allies evade accountability for alleged crimes against humanity through geopolitical manoeuvring and institutional influence, the pursuit of genuine justice remains elusive (10).
International Law and African Union
The selective application of international law by the ICC, particularly in its focus on African leaders, has raised concerns regarding the court’s impartiality. While prosecutions of leaders such as Sudanese President al-Bashir, Kenyan Deputy President William Ruto, and Ugandan Joseph Kony may be deemed just and significant, the omission of prosecutions involving Western nations, and their allies has prompted questions. The influential role or link of international law within domestic legal systems stems from signing international human rights treaties, leading to the implementation of corresponding domestic measures and legislation. For example, the African Union Executive Council reviewed the OAU/AU Treaties and the need to establish an African Commission on International Law in Africa. This should also explain or answer how international law links to or is so influential within Africa and the AU (11).
Situated within a continental body consisting of 55 member states known as the African Union (AU), the African Union Commission on International Law (AUCIL) seeks to bolster international law principles and establish common avenues for international legal development. The establishment of the AUCIL was inspired by the common objectives and principles enshrined in the Constitutive Act of the African Union, notably Articles 3 and 4, which underscore the importance of accelerating the Continent’s socio-economic development through the promotion of research in all fields (12). It was also inspired by the common goal to strengthen and consolidate the principles of international law, agree on common approaches to international legal development, and continue to work towards maintaining standards in critical areas of international law. This commission also explains the link between the AU and international law.
Notably, a discernible power disparity exists between African nations and global powers such as Europe, America, China, Russia, and France. This shows the importance of the African Union’s role as a unified African voice and platform for Africa to engage with the international community. Aspiration 7 of the AU’s Agenda 2063 aims to position Africa as a powerful, united, adaptable, peaceful, and influential global participant and collaborator with significant influence in international affairs (13). This highlights the importance of African unity in countering external interventions that aim to create discord and impose pressures and sanctions on certain African nations. This strategic imperative is also crucial for advancing Africa’s regional integration and countering the use of illicit means through international law by global power states to further their interests.
The African Union (AU) seeks to establish a unified African economy, fostering augmented intra-continental trade and advocating for local industrialization and resource processing. The African Free Continental Trade Agreement is an example of one of the initiatives. They even plan to have one visa to be used when traveling amongst African states, making trade easy among Africans. This initiative can recalibrate international trade dynamics and confer economic empowerment upon Africa if carefully observed. However, it bears the potential to incite a security dilemma, according to Realists, as global powerhouses such as the United States, China, and France could perceive the ascent of Africa through the AU as a threat, prompting consequential reactions that may impinge upon global security, leading to a zero-sum game.
Agenda 2063
The African Union’s (AU) strategic plan, Agenda 2063, presents a visionary outlook for Africa’s transformation into a global powerhouse. However, one has been concerned about the slow progress in implementing this strategic framework. Agenda 2063, initiated in 2013, was only adopted in 2015, and the first progress report was released seven years later. This sluggish pace of development has weakened Africa’s competitiveness and reflects a lack of adaptability to the rapidly changing global landscape. The extended timeline for realizing long-term plans emphasizes the need for more urgency and accountability within the AU (14). There is a need for greater flexibility and responsiveness to changing circumstances in today’s business environment. Furthermore, the delayed implementation of Agenda 2063 raises concerns about the AU’s ability to keep pace with global economic dynamics. To effectively compete and thrive in the fast-evolving global context, African leaders need to expedite the execution of strategic plans, embrace adaptability, and demonstrate responsiveness to emerging challenges.
Africa’s Regional Integration and Measurement of Development
Africa’s advancement in regional integration has been hindered by challenges such as poor human development, inadequate infrastructure, colonial legacies, and the complex membership structures of various Regional Economic Communities. Moreover, the 4th Industrial Revolution’s technological advancements potentially disrupted Africa’s integration and development efforts. This may lead to disparities in technological capabilities among African nations and raise concerns about the future employability of unskilled workers who rely on manual labour. This raises questions about the preparedness and adaptability of African economies and labour forces to ensure sustained employment amid technological innovations.
The practice of gauging development through the lens of Western, European, and Asian industrialization poses a significant obstacle to Africa’s progress. Unlike these regions, Africa has grappled with the enduring legacies of colonialism and apartheid, which have impeded its advancement. Consequently, Africa lags significantly behind in terms of development. Given this historical context, African nations must prioritize resolving prevailing socio-economic challenges before embarking on a full-fledged pursuit of technological prowess. Notably, the prevalence of high crimes stemming from unemployment poses a plausible threat to Africa’s competitive edge in the global technological landscape. To illustrate, instances of machinery or robotics theft and subsequent disassembly for profit by individuals driven by desperation or corruption are foreseeable outcomes.
In terms of International law, Africa needs to aggressively align its Agenda 2063 ambitions with those of the African Union Commission on International Law; the alignment should be underpinned by political willingness, civil society engagements, institutional strengthening, sufficient policy implementation, and setting measurable, practical goals to see through Africa’s prosperity in within the international law remits. Africa should start by effectively and decisively addressing the topical challenges at a continental level so that the region can influence reform at an international level.
Bulelani is a final-year student at the University of Johannesburg majoring in Politics and International Relations.
Ndzalama Mathebula is an Assistant Lecturer from the University of Johannesburg, Department of Politics and International Relations.
