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Africa, The ICC And The Pursuit Of International Justice

The Annual Conference of the African Union(AU) which ended in Addis Ababa, the Ethiopian capital Wednesday, February 1, had not only harsh words for the International Criminal Court but a disturbing message that spells imminent doom for the United Nations (UN) establishment.

In a resolution at the end of the Summit of Heads of States, 34 African leaders who attended voted for Africa to quit the ICC enmasse in what they referred to as the “unfair” treatment of Africa by ICC.

Although Nigeria and Senegal stoutly opposed the resolution, preferring a “coordinated withdrawal” after due consultations with the UN for reformation of the Court, the chances of mass withdrawal seem imminent as South Africa, Burundi and strangely The Gambia, whose citizen, Mrs Fatou Bensouday is the Chief Prosecutor at the Court, have already announced their withdrawal to give vent to the resolution. The three countries had since 2016 indicated intention to quit the Court which they accused of targeting only Africans for prosecution.

The implication of last week’s resolution is that should African countries massively withdraw from the ICC, the Organization will easily crumble since a sizable number of the 124 members who signed to ICC protocol are African states. Nigeria and Senegal which opposed the withdrawal resolution favoured a reorganization of the ICC along regional laws, a veiled preference for a purely African Criminal Court.

The “mass withdrawal” resolution did not come as a surprise as ICC appears to have played into the hands of its antagonists at least from the African region. Since its inception in 2002 as a Court of last resort on crimes against humanity, following the 1998 Rome Statute, the ICC has 32 cases all of which are from Africa. Among the cases, Kenya’s president, Uhuru Kenyatta, and his deputy, William Ruto, are being charged for alleged crimes against their countrymen for instigating the post- election violence which claimed at least 1000 lives. The most celebrated has been the case Sudanese President, Omar al Bashir, who was referred to the ICC by the Security Council of the UN for trial for his alleged human rights abuses in the Darfur crisis. The Sudanese President has however, continued to go about freely and evaded arrests in all African countries he has visited to attend AU functions and other bilateral and multilateral engagements.

Other Africans either indicated or charged before the Court include: Bahr Abu Garda, Abdallah Banda, Ahmed Haroun, Abdul Rahim Hussein Saleh Jerbo, Ali Kushyab(Dafur, Sudan); Mohammed Ali,Henry Kosgey, Joshua Sang, Francis Muthaura(Kenya); Jean Pierre- Bemba(Central African Republic); Charles Ble Goude, former President Laurent Gbabo and his wife Simone Gbabo( Core d’ Ivoire); former Libyan President, the late Muammar Gaddafi and his son Saif al- Islam and Abdullah Senussi( Libya); Germaine Katanga and Thomas Kubanga Dyilo, Mathieu Ngudjolo Chui and Bosco Ntaganda, Sylvestre Mudacumura (Democratic Republic of Congo); Joseph Kony, Raska Lukwiya, Dominic Ongwe, Okot Odhiambo and Vincent Oti (Uganda); Ahmad al-Mahdi( Mali); Calloxte Mbatushimana( Rwanda).

Of all these only al- Mahdi of Mali and the former Chadian Dictator, Hissene Habre was convicted May 30, 2016 in Senegal and sentenced to life imprisonment. Other convicts are awaiting sentences.

It is the over concentration on Africa that has raised the question of regional bias since citizens of other regions of the world have not been brought to the Court for any alleged crimes.

The ICC President, Bensouday has however, defended the Court on the basis that it has “opened preliminary probes” into alleged crimes in Palestine,Ukraine, and opened a formal investigations in Georgia war, Afghanistan, Colombia and Iraq. However, no charges have been brought against any suspect in those regions. It is this seeming inability of the Court to assert its authority in other parts of the world that has made Kenyan president, Kenyatta, to be critical of its work. Kenyatta is indeed seen as the force behind the “mass withdrawal” resolution which passed at the recently concluded AU Summit.

A closer assessment of ICC would reveal its inherent weakness from the very foundation as the legal instrument setting it up gives the Court powers only over countries that have either signed its Treaty or accepted its jurisdiction. In that wise therefore, the Court has no jurisdiction in countries like Israel, Iraq and Syria which did not sign the Treaty.

Another way by which ICC can take up a case is through reference from the UN Security Council, which has historically referred only the case of al- Bashir in 2009. The UN referral has remained problematic over ICC’s inability to arrest the Sudanese leader nor the inability of the UN security, Council to give bite to its decision on al- Bashir.

And in the cases in which ICC has brought charges against suspect, the tedious and cumbersome processes have made it impossible to sentence or even convict suspects. This explains why the Court has issued only two sentences since its inception but has gulped over $1billion of UN budget since its inception about 15 years ago.

The move by AU may pay off afterall as the ICC is not opposed to a regional Court on human rights abuses and crimes against humanity in the manner being canvassed by a section of the AU. In a recent media interview, Bonsouday made it clear that “Setting up a court to try these atrocity is also not against ICC principles. In fact, the ICC is a court of the last resort. We will be encouraged by national jurisdictions taking up their responsibility to investigate and prosecute these crimes.”

Although desirable, the reform of the ICC to meet the expectations of a majority of the African states may not be achievable in the immediate future as the new Secretary- General, Antonio Guterres, who recently assumed office is yet to settle down to the tough task of reforming critical UN institutions such as the ICC. Even if he were to initiate the process, the UN Security Council reserves the right to sanction new rules or powers for the Court. And given the new foreign approach of the new US president, Donald Trump, it’s difficult to determine the direction which such a process would take with the traditional influence of the US in UN affairs.

In the circumstance, African countries, particularly political actors need to observe the national laws of their respective countries pertaining to human rights and sanctity of life. Political leaders, security agencies and public office holders can avoid a charge at the ICC by simply avoiding actions and inactions that compromise the principles of fundamental rights of citizens, the alleged breach of which tend to bring them face to face with the long arm of international law. African political leaders most learn to accept democracy and its principles which include respect for laws and protection of the human rights, fundamental freedoms and liberties of citizens. This is the surest way to avoid an appointment with the ICC.


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