The International Criminal Court’s relationship with Africa: An unfair bias?

The International Criminal Court (ICC), which will soon be celebrating its twelfth anniversary, has received extensive media coverage and attention of late due to its interventions in Kenya and its prosecution of recently-elected Kenyan President Uhuru Kenyatta and Deputy President William Samoei Ruto in relation to the 2007-8 post-election violence. At a time when the Court is facing unprecedented challenges and threats, as well as accusations of an unfair bias toward the African Continent by the African Union (AU), Conectas Human Rights, who has followed the 2013 Assembly of the State Parties (ASP) also known as ASP 12[1] and the other recent developments with regard to the ICC, examines the context of these challenges.

BRIEF OVERVIEW OF ICC

The establishment of the ICC is the fruit of decades of efforts to establish a permanent, independent, international institution vested with the mandate to prosecute individuals accused of the gravest crimes of international concern, namely war crimes, crimes against humanity and genocide. The Court was founded in mid-1998 during the Rome Conference at which more than 160 world governments and over 200 NGOs were present. The majority of the Conference’s attendees believed that the creation of a permanent, international criminal justice mechanism to hold individuals accountable for heinous human rights violations would be a great achievement in global governance. The Court’s founding treaty, the Rome Statute, entered into force on July 1, 2002 after being ratified by 60 countries. So far, 139 States have signed the treaty, while 122 of them have ratified it.

AFRICA’S RELATIONSHIP WITH THE ICC

To date, the ICC counts 34 (out of a total of 55) African nations among its State Parties, and eleven[2] more African countries have signed but have yet to ratify the Statute. The African Block, which represents the largest regional grouping of countries within the ICC, actively participated in the establishment of the Court and was instrumental in bringing it into being.

During the first few years of its existence, the ICC enjoyed a friendly, cooperative relationship with the AU, with several African governments referring situations to the Court. But all that changed when Sudanese President Omar al-Bashir was indicted in 2009 after the situation in Darfur was referred to the ICC Prosecutor by the United Nations Security Council (UNSC), prompting the AU to adopt a hostile attitude towards the ICC and call on its member states to adopt a policy of non-cooperation under the threat of sanctions.[3]

The impending trial of President Uhuru Kenyatta and the trial of Deputy President William Ruto, whose cases were initiated proprio motu by then-ICC Chief Prosecutor Luis Moreno-Ocampo in 2010, have only served to further sour relations between the two institutions. Some African leaders are now claiming that the Rome Statute violates their sovereignty and have issued accusations that rather than pursuing cases on the basis of universal demands, the ICC and the UNSC are doing so on the basis of political expediency. This begs the question: Is there any truth to the AU’s claims of an unfair bias?

As is oft-asserted in response to the AU’s claims, most of the African cases currently before the Court were referred to it by African governments themselves, and to borrow the words of Dr. Ademola Abass, author of “The Proposed International Criminal Jurisdiction for the African Court: Some Problematic Aspects”[4] and the AU’s first expert on Regional Mechanisms, “The African states’ claim that the Rome Statute undermines their sovereignty flies in the face of their voluntary submission to that treaty.” It is also no secret that violent conflicts that have visited truly heinous human rights abuses on the African populace have long afflicted the Continent. As the Coalition for the ICC’s Senior Adviser on AU, UN and Africa Situations, Stephen Lamony, astutely points out in his article, “Is the International Criminal Court really picking on Africa?”[5](voted African Arguments’ best article of 2013), “[t]hose who argue that the Court is targeting Africans should stop and think for a moment: there are more than 5 million African victims displaced, more than 40,000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of Africans raped. Should the ICC ignore these victims?”

The answer to this question should be a resounding and unequivocal “No!”. Those responsible for these crimes must be held accountable, and their victims, who have either lost their lives or been left physically and psychologically maimed, deserve justice. At the time of writing, tragedies, which have been characterized as war crimes and crimes against humanity, are unfolding in the Central African Republic (warnings have been issued by the international community that the situation has the potential to degenerate even further into genocide) and in South Sudan.

Steve Lamony recalls how in his first speech at a Summit of the Organization of African Unity (OAU) held in 1986, then just-elected Ugandan President Yoweri Museveni issued criticism of the body’s members for standing idly by while an estimated 750,000 Ugandans were killed either directly or indirectly by a succession of brutal regimes that had ruled the country since independence in 1962 (including those of the notorious Idi Amin and Milton Obote). “Tyranny”, Museveni said, “is color-blind and is no less reprehensible when it is committed by one of our own kind.” He rejected the principle of non-interference in internal affairs and argued that Article III of the OAU’s Charter “should not be used as a cloak to shield genocide from just censure”, further warning that “African silence in the face of gross abuses undermines Africa's moral authority to condemn the excesses of others, like the Pretoria regime.” It is ironic and quite sad that today, President Museveni is one of the Court’s fiercest critics, and yet, as Lamony asserts, impunity in Africa is just as big a problem today as it was two decades ago.

Therefore, the International Criminal Court is as relevant as ever. This is not being called into question. However, atrocities have unfolded and continue to unfold in other parts of the world, such as Syria, and the victims of those crimes equally deserve justice.

The Security Council has been vested with the power to refer cases to the Court over which the Court would not otherwise have jurisdiction, but while there have been loud calls for the Security Council to refer Syrian President Bashar al-Assad to the ICC, certain permanent members have threatened to use their veto power to ensure that the situation remains beyond the Court’s reach. In the words of Max du Plessis, senior research associate at the International Crime in Africa Programme (ICAP) at the Institute for Security Studies (ISS) and author of the paper “Universalising International Criminal Law: The ICC, Africa, and the Problem of Political Perceptions”[6],

“One cannot merely claim that the African cases before the Court are there because they deserve the Court’s attention. They do. But while crimes in Syria, or Palestine, remain beyond the ICC's reach, it is impossible to claim that the international criminal justice project is truly universal in its aspirations, or free from the vicissitudes of international politics. Ultimately, it is a question of fairness and equality. […]It is thus in the interests of justice and credibility of the ICC that the Court stretch its work beyond Africa. By doing so, the Court will deny the powerful African elites the diversion that they use to cover up their crimes.”

Perhaps it is time a more public debate was held among civil society on the role of the Security Council in referring and deferring cases to the ICC, especially in light of the fact that 1) rather than necessarily facilitating the Court’s access to universal jurisdiction, some of its most powerful members are keeping certain cases beyond the reach of the Court and 2) three[7] of the five permanent members are neither States Parties to nor signatories of the Rome Statute. Or, perhaps in addition to the Security Council, the Human Rights Council should also be vested with the mandate to directly refer situations of international concern to the Court. At the very least, there should be a more spirited discussion about whether the permanent members should be allowed to use their veto power to circumvent the ICC’s ability to take on certain cases.

AU 2013 EXTRAORDINARY SUMMIT ON THE ICC

On October 11 and 12, 2013, the African Union convened the Extraordinary Summit on ICC to discuss its relations with the ICC and the possibility of withdrawing from the Institution en masse. Though the immediate threat to pull out has been averted (at least for now), some African leaders and officials in attendance expressed their view that Africa was been unfairly targeted by the ICC (currently, all the 8[8] situations before the Court are from the Continent) and their disappointment with the Court and the UNSC for not taking their requests for deferrals seriously; the AU had sought deferrals in the situations of Darfur, Sudan and Kenya in the past, but the bid to postpone the Kenya trials has failed on two occasions (in 2011 and 2013) at the Security Council.

The two main issues that were discussed at the Summit were that of immunity for sitting Heads of State and complementarity. AU members unanimously decided that sitting Heads of State and other high-ranking officials should be granted immunity from ICC prosecution during their tenures, and they went a step further by officially declaring “[t]hat to safeguard the constitutional order, stability, and integrity of Member States, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term in office.”[9] Moreover, the decisions to request the inclusion of a special segment at the 2013 ASP entitled “Indictment of Sitting Heads of State and Government and its consequences to peace, stability, and reconciliation”, as well as to pursue a UNSC deferral in the Kenyan cases, were taken. While acknowledging that Africa is one of the most unstable regions in the world, the AU insisted that its leaders needed to devote their undivided attention to governing and could not afford to be distracted by trials. Additionally, leaders affirmed that the ICC is a court of last resort and highlighted the importance of complementarity and homegrown solutions. To this end, one of the most critical decisions adopted during the Summit was the fast-tracking of the African Court on Human and Peoples’ Rights (AfCHPR)’s expansion process- and more specifically the merging of the existing AfCHPR and the African Court of Justice into the African Court of Justice and Human Rights- to try international crimes such as genocide, crimes against humanity, and war crimes. This decision was preceded by one taken during the XXI AU Summit to “seek ways of strengthening African mechanisms to deal with African challenges and problems.”[10]

Apart from the reasons publicly proffered at the Extraordinary Summit, what might be some of the other reasons for African leaders’, including aforementioned Ugandan President Museveni’s sometimes vituperative criticism of the Court? In the words of Steve Lamony, “Leaders and senior government officials in Africa fear the extension of the arms of law. The reasons for this are centuries of colonialism and absence of accountability for crimes committed and hypocrisy and double standards of justice-supporting States.”

Lamony also makes a very interesting point regarding the AU’s criticism of the Court. While it can undermine the Court and be counterproductive, a silver lining that Lamony identifies is that in addition to spurring the international community to ensure that cases outside of Africa that deserve scrutiny are being pursued, it also pushes the continent to re-examine the strengths and weaknesses of its own mechanisms and to ensure “that justice and accountability are effectively sought within Africa, thus allowing the Court to operate as it was truly intended, as a court of last resort.”[11]

It is important to note that following the AU Extraordinary Summit, the Kenya Human Rights Commission and the Kenya Section of the International Commission of Jurists addressed a letter to the chairperson of the African Commission on Human and Peoples’ Rights (ACHPR) in which they affirmed “that recent developments at the just concluded Extraordinary Summit of the African Union calling for the United Nations Security Council to defer the Kenyan cases will have a devastating effect on victims’ quest for justice and is inconsistent with the Rome Statute of which African States form the majority of state parties.”[12] In the same letter, the signatories warned that the decision to grant sitting Heads of State immunity from prosecution was setting a dangerous precedent that could potentially erode the entire African human rights system, and they called upon the ACHPR to “consistently and proactively call upon African states to embrace criminal accountability as an integral component in the fight against impunity.” In fact, not only does this set a dangerous precedent for the African system, but for the global quest to end impunity.

Though the AU as a block has been calling for non-cooperation, many African States continue to cooperate with the Court in its investigations. At least one State - Botswana - has broken ranks with the AU and publicly voiced that it does not stand with the AU in its decision that sitting Heads of State should be beyond prosecution during their tenures. Moreover, many prominent African figures, among them Kofi Annan and Bishop Desmond Tutu, and African CSOs have rejected the view that Africa is being unfairly targeted by the Court. In the run-up to the Extraordinary Summit, over 130 civil society organizations addressed a letter[13] to African leaders calling on them to support the ICC. The letter’s signatories urged leaders to affirm the continent’s commitment to the protection and promotion of human rights and to the rejection of impunity, as reflected in Article 4 of the AU’s Constitutive Act.

Hearteningly, the final draft of the future African Court of Justice and Human Rights protocol doesn’t, at least for now in any case, include immunity for sitting Heads of State or senior government officials. However, certain African governments and the AU Commission are pushing for an amendment to the draft protocol[14] to include immunities for Heads of State during their term in office (article 46B in the former draft). This amendment will be presented for adoption to the Conference of African Ministers of Justice and Attorneys General scheduled to take place in late May or early June, before the next AU Summit, which is slated to take place in Malabo, Equatorial Guinea, in June/July of this year.

OUTCOMES OF UN SECURITY COUNCIL RESOLUTION AND 2013 ASSEMBLY OF STATE PARTIES (ASP)

On November 15, the UNSC voted on a Security Council resolution pushed by Council member Rwanda, with the backing of Togo and Morocco, to defer the cases of Kenyatta and Ruto under article 16 of the Rome Statute. The resolution failed to garner support, with seven members voting in favor, while the other 8 members abstained.[15]

In the lead-up to the 2013 ASP (November 20-28), several amendments to the Statute were proposed by Kenya, including to article 134 on Rules and Procedures of Evidence to exempt those holding extraordinary duties and responsibilities from personally attending their trials in order to fulfill their governing obligations. Kenya’s proposed amendments to article 27 to grant sitting Heads of State and other high-ranking government officials exemption from ICC prosecutions during their term(s) in office didn’t make it on the agenda because they weren’t submitted in time, but Kenya intends to pursue them this year before the next Assembly of State Parties meeting (ASP 13). The Kenya Amendments submitted to the Office of Legal Affairs last November were circulated to UN member states on March 14, 2014, and the Permanent Mission of Kenya to the UN is asking the Working Group on Amendments to start discussions on their proposals.

WHAT’S NEXT FOR AU MEMBER STATES IN RELATION TO THE ICC?

The AU appears intent on pushing forward with the implementation of the decisions taken at its XXI and Extraordinary Summits with regard to the ICC, namely strengthening and capacitating African judicial mechanisms to deal with the crimes that currently fall under the ICC’s jurisdiction. During the 22nd AU Summit, which was held from 21 to 31 January in Addis Ababa, a closed session was convened on January 31 to discuss, inter alia, the implementation of Decision Assembly/AU/Dec.482(XXI) on International Jurisdiction, Justice and the International Criminal Court. Another agenda item of this closed session, “Consideration and adoption of draft protocol on the African Court of Justice and Human Rights, in implementation of decision Ext/Assembly/AUDec.1(Oct.2013) on Africa’s Relations with the International Criminal Court”[16], was eventually removed because it is not yet ready for deliberation.

At least one State Party has already taken steps to withdraw from the ICC. On September 5, 2013 the Kenyan Parliament adopted a motion to repeal the International Crime Act, which domesticates the Rome Statute. Therefore, though some African States may not pull out of the Rome Statute for now, it could happen, possibly in the not-too-distant future. Certainly, this potential move will have serious implications and consequences for the Continent, the ICC, international criminal justice mechanisms in general and the fight against impunity.

There are those who have questioned the ability of the African Court to adequately handle crimes of international concern when, in their view, it has yet to make a real impact on the Continent.[17] Not only has the Court been slow in passing judgments, but where it has done so, many of the rulings have been on matters that are “inconsequential”, or the judgments have been unenforceable as they pertain to countries that have not ratified the Court’s Statute. Currently, only 26 of the 54 AU member states have ratified the Statute. Moreover, as Professor Dr. Ademola Abass argues in his aforementioned article, the likelihood that African leaders will muster the necessary political will to empower the African Court and permit its prosecutor free reign within the ambit of the law is very slim. He suggests that the best assurance for international criminal justice is for the ICC to carry out its mandate as responsibly and impartially as it can.

Now, assuming African Judicial Mechanisms, eventually vested with the mandate and the capacity to prosecute crimes of international concern, and ratified by all member states, take the task of fighting and ending impunity on the continent with the utmost dedication and seriousness, then this is arguably a very good thing: African solutions to African problems and the strengthening of the African human rights system. As things stand, it appears there is quite a ways to go before the African Court will have the necessary capacity and jurisdiction to do so in a satisfactory manner. Nonetheless, it should be noted that there has been a positive development in this regard; in 2012, Senegal, in partnership with the African Union, established a special court to prosecute ex-Chadian dictator Hissène Habré, sometimes referred to as “Africa’s Pinochet”. Habré, who has been living in exile in Senegal for the past two decades, has been accused of presiding over the systematic torture and murder of thousands of Chadian citizens from 1982 to 1990. In July of last year, the Extraordinary African Chambers formally charged him with torture, war crimes and crimes against humanity.

However, if these mechanisms are used instead to enable leaders in getting away with criminal behavior, then it will be a very sad day, indeed, for the continent and more largely the global quest to end impunity. The precedent that the AU has set by calling for immunity for its sitting Heads of States is a disturbing sign that this intergovernmental body might not be as fully committed to fighting impunity as it claims, despite its constant reiteration of “the unflinching commitment of Member States to combating impunity and promoting democracy.” If justice is to be truly universal, then it should pertain to all, regardless of their official capacity.

It is, therefore, of fundamental importance that Civil Society Organizations throughout the world and particularly in Africa continue to press African State Parties to reaffirm their cooperation with the ICC and urge the AU to address its grievances with the Court constructively through the available channels, including through proposals that seek to broaden and strengthen rather than narrow and weaken the jurisdiction of the Court. We must also call on the AU and the ACHPR to embrace criminal accountability, including of Sitting Heads of State, as part and parcel of the fight against impunity, while encouraging States to strengthen their national judicial mechanisms and processes to try cases of national concern domestically, because as the Rome Statute itself asserts, the ICC is a court of last resort. And lastly, we must all call on our respective countries to affirm their commitment to this universal criminal justice project, which, though it may not be perfect, represents a monumental global step in the fight against impunity.

END NOTES

[1] see http://tinyurl.com/n4wassl
[2] Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea-Bissau, Morocco, Mozambique, São Tome & Principe, Sudan, and Zimbabwe.
[3] Assembly of the African Union, “Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC),” Assembly/AU/Dec.245 (XIII), Sirte, July 3, 2009, para. 10.
[4] See http://tinyurl.com/nczz9r7
[5] See http://tinyurl.com/nkqt5pz
[6] See http://tinyurl.com/omnhojh
[7] China, the Russian Federation, and the U.S.A.
[8] See http://tinyurl.com/ao7xekx
[9] See http://tinyurl.com/qzktgjz
[10] See http://tinyurl.com/nlngl82
[11] Lamony, Steve. “International Justice and the ICC: Neither ‘Europe’s Court for Africa’ Nor ‘Africa’s Court.”
[12] See http://tinyurl.com/oz7swmf
[13] See http://tinyurl.com/ogklrbr
[14] For full draft protocol see: http://tinyurl.com/nq6t3gb
[15] Members who voted in favor: Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, and Togo. Members who abstained: Argentina, Australia, France, Guatemala, Luxembourg, the Republic of Korea, the United Kingdom, and the United States. For more information, please visit http://tinyurl.com/mz2lk4r
[16] See http://tinyurl.com/mo353l4
[17] See http://tinyurl.com/k3e8a7k

* Arlette Afagbegee works at Conectas Direitos Humanos (http://conectas.org/en), an international human rights organization based in São Paulo, Brazil, whose mission is the protection and promotion of human rights in the Global South (Africa, Asia, and Latin America).

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