The Potential Emergence of African Universal Jurisdiction Legislation to Address Atrocity Crimes

[Godfrey Odongo is a nonresident senior fellow with the Strategic Litigation Project at the Atlantic Council.]

Introduction

Africa has witnessed several intractable armed conflicts, political crises and upheavals. including examples over the last four decades such as the 1994 Rwandan genocide and previous armed conflicts dating back to the 1990s. The International Committee of the Red Cross estimated in 2025 that Africa accounted for roughly 40% of the world’s armed conflicts, with some 50 ongoing clashes across the continent. In 2025 alone, the International Crisis Group reported that tens of thousands of civilians died in wars in Africa and millions were displaced from their homes in Sudan, the eastern Democratic Republic of Congo (DRC) and parts of the Sahel. 

Atrocity crimes – genocide, war crimes and crimes against humanity – perpetrated against civilian populations, including torture, sexual and other forms of gender-based violence committed on a widescale – have characterized these situations. Most of these have been largely unaddressed in terms of legal accountability. Outside of a handful of International Criminal Court (ICC) indictments and convictions, specialized tribunals on the situations of the Rwandan genocide, Sierra Leone and Central Africa Republic of late, select domestic prosecutions and an increasing, but still limited, number of universal jurisdiction cases regarding alleged crimes in Liberia, Ivory Coast, Rwanda and the Gambia, among others, before European national courts, impunity remains the dominant theme for atrocity crimes in Africa. 

Challenges and Limitations of the ICC Interventions in Africa

The very first cases before the ICC were African situations: the DRC, Uganda and Sudan. Such was the dominant subsequent representation of Africa in the Court’s docket during the first decade of the ICC that a backlash arose from African States charging that the Court was unfairly or disproportionately focused on Africa. A clamor and campaign for a mass withdrawal of African States from the ICC ensued. While this clamor has since died down, there still are occasional threats or measures by individual African countries to withdraw. Such as when three countries — Niger, Mali and Burkina Faso — announced in 2025 that they would withdraw from the Rome Statute. In late July 2026, Chad became the latest African State to announce that it intends to withdraw from the ICC reportedly because of the ICC’s ineffectiveness and “bias against African countries.  

The charge of an overly African-centric ICC has been substantially mitigated by the ICC’s more recent docket of new and active ICC investigations outside Africa. These include investigations on the situations in the State of Palestine, Bangladesh/Myanmar, Lithuania/Belarus, Georgia, Ukraine, Venezuela. However, the ICC’s process – from investigation to successful prosecution – can still be inordinately long. For example, the ICC has been seized of the situation of Sudan since 2004 when it first intervened to investigate atrocity crimes and issued arrest warrants, including for the former Sudan President, Omar Al Bashir, for alleged genocide, war crimes and crimes against humanity in Darfur. But it was only in late 2025 that the Court recorded its first and only conviction of any persons implicated in the perpetration of these crimes when it convicted Ali Kushayb, a senior leader of the pro-government Janjaweed militia, for war crimes and crimes against humanity. At the same time, over 20 years since the first indictments, other alleged perpetrators including the indicted former President have not been tried and the conflict context has evolved with the constant that atrocity crimes continue to be committed unabated. 

As a result of or in coincidence with the initial African campaign for withdrawal from the ICC, back in the early 2010s, in June 2014, the African Union adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights which would establish jurisdiction for a new (expanded) African Court of Justice and Human Rights – to investigate and prosecute genocide, crimes against humanity, war crimes, among other “transnational” crimes. However, the Protocol has thus far not garnered the requisite number of ratifications to enter into legal force.

Thus, given the lack of a regional or sub-regional accountability mechanism to address accountability crimes in Africa, the slow pace of ICC prosecutions and the reality that up to 40% of African States (23 States) are not parties to the Rome Statute, the future of legal accountability for atrocity crimes in Africa can be said to lie in strengthening domestic African legal frameworks and justice systems. 

The Potential and Limits of Domestic and Specialized Tribunals

There have been other mechanisms for accountability for atrocity crimes in Africa outside the ICC. Two of the UN legacy specialized tribunals that pre-date the ICC were in Africa: Rwanda and Sierra Leone. Most notably, Senegal, established an extraordinary chamber within its court system to try the former Chadian President Hissen Habre who was living in Senegal at the time of the prosecution for torture and other crimes against humanity in Chad in what remains the first time that the domestic courts of one country has tried and convicted the former leader of another country for serious international crimes under the principle of universal jurisdiction. More recently, some African states have set out to put in place potentially informative pathways for legal accountability for atrocity crimes within the national justice system or involving the deployment of specialized tribunals. The Gambia –where atrocity crimes are alleged to have been committed during the 1996-2016 authoritarian reign of the country’s deposed exiled leader, Yahya Jammeh, has established a Specialized Tribunal focused on the investigation and prosecution of Yahya Jammeh-era atrocity crimes as recommended by the country’s truth, justice and reconciliation process. Similarly, in Liberia – where there were alleged atrocity crimes committed during the 1980-2003-era of armed conflicts in the country – the government has publicly stated its commitment to establish a war crimes court to investigate and try these crimes on the back of recommendations from the country’s truth, justice and reconciliation process. In Guinea, the DRC and Uganda, among others, prosecutors have conducted investigations and prosecuted atrocity crimes within the framework of existing law and the country’s regular (non-specialized) courts. In Guinea in particular, a national court convicted Guinea’s former self-declared president Moussa Dadis Camara, and seven others, for rapes and killings of protesters in 2009, and reclassified charges from ordinary crimes to crimes against humanity in a trial that has been considered by Human Rights Watch and others as landmark trial of its kind. 

On the one hand, these country-specific examples provide potential pathways for other countries in the sense that the regular court system or specialized courts may be dedicated and uniquely equipped to address legal accountability for atrocity crimes. This is particularly the potential for specialized courts to address potential pitfalls such as a lack of technical capacity and knowhow and the likely political interference that may prove to be an obstacle to trials of this kind if the task of investigation and prosecution were left to the regular and likely unequipped existing national justice system. On the other hand, however, these examples are rare firsts and remain isolated examples in each country. In addition, the courts or specialized tribunals are limited in character and scope because they focus on atrocity crimes committed in a specific context and time. At a practical level, their implementation relies on rarely available significant political will and the potential assistance of international actors. Thus, while there remains scope for implementation of specialized hybrid tribunals with the support of the AU, the UN and other state actors, such as in the UN-backed Central Africa Republic tribunal whose work is ongoing, the current global political climate marked by an increasing decline in multilateral support and funding, including to the UN, makes the prospect of such hybrid tribunals much more remote. These limitations mean that the prospect for a more durable pathway for accountability lies in strengthening domestic accountability.  

The Normative Basis for Domestic Accountability and Universal Jurisdiction 

At the very least, customary international law stands for the proposition that atrocity crimes are of concern to the international community such that all nation states are obliged to prosecute these crimes whether committed within their borders or extra-territorially. In addition, several treaties, such as the UN Torture Convention, oblige state parties to either prosecute or extradite alleged perpetrators of violations, such as torture or other cruel, inhuman and degrading treatment (which are often a feature of war crimes and crimes against humanity). It is this CAT obligation that the International Court of Justice invoked to reiterate Senegal’s obligation to ensure that Hissen Habre was prosecuted, and led to the establishment of Senegal’s extraordinary chambers that tried Habre. 

Moreover, for the 33 African state members to the Rome Statute ICC membership means that the ICC is not only empowered to directly intervene in the investigation and prosecution of atrocity crimes but the Statute also imposes an obligation on State parties to put in place measures for the domestic or national investigation and prosecution of atrocity crimes. The rationale of positive complementarity is a key tenet of the Rome Statute system: that is, the ICC’s direct intervention is designed under the Rome Statute as a measure of last resort, if or when national domestic justice systems would be unable or unwilling to investigate and prosecute. Complementarity requires African ICC member states to put in place the necessary legal framework and domestic accountability mechanisms to prosecute these crimes when committed both within and outside their borders. Some African ICC member states, such as Kenya and Uganda, have enacted new legislation that seek to domesticate the Rome Statute and which provide a template for potential pathways for accountability, including universal jurisdiction. 

Separately, African States have collectively, under the auspices of the African Union, taken a few steps in the context of dealing with atrocity crimes. In 2016, the AU adopted the African Union Model National Law on Universal Jurisdiction over International Crimes which may be considered as a kind of African regional “soft law” provides a legislative framework or template to inform African states seeking to legislate for UJ for atrocity crimes. 

The Kenyan Example as a Template 

The Kenyan penal code and other laws have always criminalized elements of atrocity crimes. But in 2008 Kenya took steps to enact the International Crimes Act, in the wake of Kenya’s post-elections violence of 2007/8 and the ensuing process to establish laws and processes to remedy the impact of the violence, including alleged atrocity crimes in respect of which the ICC investigated and later issued indictments for a select cast of alleged high-level perpetrators. The 2008 Act’s purpose, as stated in the Preamble, is to “make provision for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes, and to enable Kenya to co-operate with the ICC …in the performance of its functions”. The Act provides that the Rome Statute has the full force of law in Kenyan law including specific provisions that require Kenya’s cooperation with the ICC with regard to assistance and the method of dealing with ICC requests; the conduct of an investigation by the Prosecutor or the ICC; (c) the bringing and determination of proceedings before the ICC; (d) the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters (section 4). It criminalizes genocide, crimes against humanity and war crimes, as committed in Kenya or elsewhere, and provides the Kenyan High Court with the jurisdiction to try persons accused of these crimes regardless of whether they are Kenyans or not, and provided there is a nexus with Kenya, including where or when an accused person is present in Kenya subsequent to the alleged perpetration of the conducts or omissions that constitute the elements of these crimes (sections 6 & 8 of the Act). Thus, it domesticates universal jurisdiction over these crimes. The practical impact of this legislation is yet to fully tested and there is an ongoing case, the first of its kind in Kenya, alleging police brutality as a crime against humanity against a handful of Kenyan police officers. More recently two civil society groups, Legal Action Worldwide and the African Center for Justice and Peace Studies, filed a complaint, on behalf of a group of Sudanese victims, to the Kenyan Office of Director of Public Prosecution requesting the office to open an investigation and potential prosecution of 10 high-level members of the leadership of Sudan’s Rapid Support Forces over alleged war crimes and crimes against humanity in Sudan.

The Kenyan template is instructive to other African contexts in several respects. First, it is the case that the general penal codes of more than half of African states codify the criminalization of one or more of the crimes of genocide, war crimes or crimes against humanity and this is regardless of whether the State has ratified the Rome Statute or not. However, it is also the case that mere codification or criminalization generally omits a comprehensive set of legal issues such as how national courts would deal with legal issues and theories that may be novel in domestic systems including issues of command responsibility, waiver of official immunity and other defenses; and whether national courts have universal or concurrent jurisdiction over atrocity crimes, all primary issues under international criminal justice and which may undercut the potential for accountability if unaddressed. In addition, for African Rome Statute member states, compliance with complementarity obligations under the treaty requires comprehensive national legal reform to ensure consistency between national law and the Rome Statute. 

At this time when the exercise of universal jurisdiction over atrocity crimes has been a growing feature in many Western justice systems and as applied to African situations such as Liberian war crimes being litigated in Swiss courts, among others, there have not been any universal jurisdiction cases launched and tried before African courts other than the high profile Habre trial. In these circumstances and given the well-documented limited capacity of the ICC’s direct intervention and the limited relevance of specialized tribunals, it is the case that strengthening national legislative frameworks and national justice systems provides the best pathway to address the legacy and continued reality of unaddressed atrocity crimes in Africa. In this regard, Kenya’s and other similar examples are highly informative for the prospect of legal accountability particularly regarding the potential of universal jurisdiction to provide accountability for atrocity crimes at national levels.