For the Heads of State and all Africans who claim that the ICC is being unfair to Africa, i have a few questions for you;
- Are the crimes being handled by the ICC against Africans true or false?
- If you claim that ICC is being unfair to Africans, what alternative(s) are you looking at?
- Is the ICC to blame for the impunity in Africa?
- Is this a question of a court of discrimination or leaders escaping justice?
Late last month, the old folks running African states gathered in Addis Ababa as the rituals of diplomacy and continental relations dictate, to discuss issues affecting Africa and possibly find solutions to the problems. As usual, the men dressed in Italian suits and making resolutions from a Chinese building while preaching about African Nationalism, still blame imperialism for Africa’s contemporary problems even after fifty years ever since the white man left.
The African Union (AU) Chairperson- Elect President Robert Mugabe, the white man’s public enemy number one, vowed to mobilize his fellow heads of state to pull out of the International Criminal Court (ICC) by the end of his one year term as chairperson citing the court as a tool of western imperialism and a court biased about Africa.
This is however not the first time the AU is threatening to pull out of the ICC. On October 11 and 12 2013, the AU held an extraordinary summit to discuss its relationship with the ICC. Although the court’s supporters were able to defeat a proposal to withdraw en masse from the ICC, member states voted unanimously to declare that heads of state should not be tried while in office, a clear blow to accountability for international crimes on the continent.
Since the summit, the ICC and the UN Security Council have made important decisions that will continue to affect the court’s standing in Africa and particularly in Kenya. African countries remain central to the success of the court, with 34 having ratified the Rome Statute. But after several tumultuous weeks, the ICC’s future in Africa is quite uncertain.
At first glance, the claims of African leaders that the ICC is “hunting Africans” appear well-founded. Firstly, since the court’s creation in 2002, all its cases have been from African countries, and it has only convicted one man, an African warlord from the Democratic Republic of the Congo. Secondly, everyone currently wanted by the ICC is an African, including two sitting heads of state, President Kenyatta(charges we dropped mid December last year) and President Omar al-Bashir of Sudan, who has been a fugitive from the court since 2009 over alleged war crimes in Darfur. Some African leaders argue that the ICC is discriminatory as it has failed to file charges against the leaders of Western nations or Western allies while prosecuting only African suspects so far. Mr Kenyatta has recently accused the court of being ‘the toy of declining imperial powers’ and argued that to prosecute leaders while in office could damage state governance.
However, if we look deeper into the workings of the ICC, the accusations of discrimination from African leaders ring a little hollow. Of the eight official investigations currently underway in the ICC, all of which are from African countries, four of them originate from referrals by the states themselves. And while all current investigations have been in African countries, there are examinations by the court across the world, including in Afghanistan, Colombia, South Korea and soon Israel (if Palestine’s request goes through). Furthermore, the chief prosecutor in the court since June 2012 has been an African woman, Fatou Bensouda, from The Gambia.
Despite the fact that all the ICC’s current cases are in Africa, accusations of racism or discrimination are far-fetched. Genuine violations of human rights have taken place in all the countries in which investigations are on-going which cannot be ignored. President Kenyatta and other Kenyan politicians successfully manipulated the ICC cases to bolster their recent election campaigns by fuelling negative sentiments towards the court. Leaders, whether African or not, can’t be allowed to use these sentiments and the unfortunate coincidence of the ICC cases all being African at this moment, to escape justice.
Further more, contrary to the rhetoric of anti-ICC governments in Africa, the court is not a Western entity that targets Africans. In fact it was founded with the strong support of Africans. The ICC is a permanent tribunal meant to try international crimes: genocide, war crimes, crimes against humanity, and crimes of aggression. Moreover, it is a court of last resort, designed to step in only when domestic courts cannot or will not prosecute a case relating to these international crimes. When the ICC was created in July 2002, Benin, Botswana, the Central African Republic, the Democratic Republic of Congo, Gabon, the Gambia, Ghana, Lesotho, Mali, Mauritius, Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa, and Uganda had already signed on to the Rome Statute, making them some of the earliest supporters of the ICC. In all, 34 African countries have ratified the document.
In practice on the other hand, the AU’s position seems likely to weaken the order, stability, and integrity of African nations. It would leave individuals accused of massive human rights violations in office without any clear judgment as to their guilt or innocence, damaging their legitimacy and encouraging impunity for lower-level crimes (and the last time i checked, most African states have no Presidential Terms limit). Victims would be denied justice, and citizens in general would be less able to hold their leaders accountable for alleged abuses.
Not only have most of the gravest conflicts taken place in Africa but the countries that were not investigated are not party to the Rome Statute. This eliminates Algeria, Ethiopia, India, Indonesia, Iraq, Myanmar, Nepal, Pakistan, Palestine, Russia, Somalia, Sri Lanka, Syria, Thailand, Togo, Turkey, Yemen and Zimbabwe. Others such as Liberia, and the Philippines only signed up after their conflict had ended. Others such as Columbia, Georgia and Mexico can be eliminated due to Complementarity (where the states are willing to investigate themselves).
At the most fundamental level, many of the world’s atrocities of recent times have occurred in Africa, where weak government and mass war are rampant. Taken per head of population Africa has the most conflicts of any continent and unlike Asia its most brutal conflicts have occurred in the last couple of decades. As such, it is not surprising that a focus has existed in Africa from the ICC.
That the ICC has not been as strong in other continents is not evidence of bias against Africa, rather that they have work to do in other areas. But the victims of atrocities in Africa deserve their perpetrators to be brought to justice. As such, Africa is not a ‘victim’ of the ICC, but the greatest beneficiary. Africa had the greatest desire and push for international assistance in obtaining justice, and are now receiving that. This simply shows that Africa is forging a path that other regions should follow in terms of its acceptance of international criminal law.
The ICC must stand firm for two crucial reasons. Firstly, granting the heads of state immunity from ICC jurisdiction would only lead to leaders becoming even more desperate in holding onto power, creating the potential for further human rights abuses in the future. More importantly, the court must not set the precedent that people can escape justice by being in office, not only could this allow leaders to commit atrocities while in office safe in the knowledge they could escape justice indefinitely, but for the simple reason that justice deferred, is justice denied.
In conclusion, The African Union should be working hard to ensure that there is no impunity in Africa. If Kenyatta and Ruto (or any other African leaders) are innocent, they should not be afraid to get their day in court. Any discussion at the AU about mass withdrawal from the ICC could be tantamount to self-delegitimization and a road to self destruction.
Therefore, Africa pulling out of the ICC? Please don’t waste my time, just buy me a rolex and add me more tea leaves because am still hungry.