Is the International Criminal Court really picking on Africa? – By Stephen A. Lamony
Fatou Bensouda's promotion to Chief Prosecutor of the ICC demonstrates the court's commitment to represent African voices for the victims of crimes committed in the continent.
Many observers and critics of the International Criminal Court (ICC) argue that the Court has focused entirely on Africa and needs to expand its investigations to other continents. Some cast the ICC as a colonialist tool that is biased specifically against Africans. But while it is true that each of the individuals charged by the Court have been Africans, these arguments overlook and overshadow the fact that African governments have been largely supportive of the ICC and were instrumental in its founding.
As many have noted, of the eight active formal investigations that the ICC has opened in it’s over ten years of existence, all of them have been on the African continent. It is easy, then, with just that information, to conclude that the Court and its prosecutors have focused on Africa. But contrary to common perceptions, the ICC’s interventions in Africa have in fact been called for and supported by African states. In four instances””in the Democratic Republic of Congo, Uganda, the Central African Republic and Mali””the situations were referred to the ICC prosecutor by those very states.
In those situations where investigations were opened on the volition of the prosecutor, there was also support from African governments. In Kenya, the prosecutor was given evidence of crimes allegedly committed during 2007-08 post-election violence by an international commission established by the Kenyan government. Even then, an investigation was only formally opened after the Kenyan government failed to meet an agreed upon deadline for starting its own prosecutions.
Likewise, the investigation in Cote d’Ivoire was supported by the Ivorian government, under the leadership of President Laurent Gbagbo which voluntarily accepted ICC jurisdiction in 2003.
The remaining investigations””in Darfur and Libya””were referred to the ICC prosecutor by the United Nations (UN) Security Council, with both referrals receiving support from African states sitting on the Council at the time.
Rather than seeking out cases on the African continent, the ICC opened investigations where it was asked to, and where grave crimes were being committed. As current ICC Prosecutor Fatou Bensouda has said: “The office of the prosecutor will go where the victims need us… The world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion.”
African support for the ICC
“My largest constituency is Africa and its state parties. I make every effort to liaise with them and be truly attentive to their concerns,” remarked Ambassador Tiina Intelmann, President of the Assembly of States Parties to the Rome Statute (the ICC’s founding treaty) recently. Her office has carried out exhaustive efforts to respond to any question from African states, whether they are ICC states parties or not.
African countries have long supported the idea of an international criminal court. Members of the Organization of African Unity (OAU) and later the African Union (AU) were actively involved in the ICC’s creation. During the 1998 Rome Conference negotiations, OAU Legal Adviser Tiyanjana Maluwa gave two justifications for Africa’s interest in the ICC: the continent’s historical endurance of atrocities such as slavery and colonial wars, and the memory of the 1994 Rwandan genocide, where the international community failed to take preventative action.
In Maluwa’s words, these experiences “strengthened Africa’s resolve to support the idea of an independent, effective, international penal court that would punish and hopefully deter perpetrators of such heinous crimes”.
This resolve has carried through to the present. African states have routinely responded positively to requests for assistance by the ICC during the course of proceedings. They have facilitated investigations and provided crucial support to their conduct.
For example, just last month Rwanda, which is not a state party to the Rome Statute, cooperated in facilitating the transfer of ICC suspect Bosco Ntaganda to the Court. Furthermore, in July 2012, six West African heads of state attending a meeting of the Economic Community of West African States (ECOWAS) in Burkina Faso called for the ICC to intervene and conduct investigations of alleged crimes in northern Mali.
The fact is that several ordinary African citizens do not share the same opposing views as some of their leaders on the ICC. While attending an expert roundtable meeting on the African Union, the ICC and the United Nations Security Council (UNSC) in Addis Ababa in March 2013, I was asked why heads of state and senior government officials feel they are entitled to immunity from prosecution?
The AU and the ICC: a shaky relationship?
The AU’s relationship with the ICC is admittedly far from perfect. The AU has supported UN Security Council deferrals of the investigations in Darfur and Kenya, and most notably instructed member states not to act on the arrest warrant for Sudanese President and ICC suspect Omar Al-Bashir, arguing that he has immunity as a sitting head of state.
But that is not the whole story. It is important to bear in mind that institutional relations are complex and take time to develop. As a case in point, the relationship between the ICC and the UN was foreseen in the Rome Statute, but the negotiations of a draft relationship agreement as a basis for discussions between both organizations lasted for two years. No such provisions were foreseen for the relationship between the AU and the ICC, so some tension between the two may be expected.
The ICC Office of the Prosecutor has said that overall the relationship between the ICC and the AU has been very good. Between 80 and 90 percent of the ICC’s requests for cooperation are directed to African states, including to non-states parties, and to date none have been refused. One could argue that the Court’s current cases could not have proceeded without the support and cooperation of the AU’s member states.
Crucially, members of the AU have also begun to assert the need to abide by their obligations as members of the ICC over their membership in the AU. Countries such as Botswana, South Africa, Burkina Faso and Niger have publicly affirmed the need to arrest ICC suspects on their territory. During preparations for the July 2012 AU summit in Malawi, President Joyce Banda announced that the arrest warrant against President al-Bashir would be acted upon if he were to attend, which led to the relocation of the meeting to Addis Ababa.
Where states have been reticent to cooperate with the Court, African civil society has pushed the issue. In Kenya, for example, civil society groups worked through the Kenyan judicial system to assert the government’s obligation to arrest Al-Bashir.
Africans support justice
With 34 states parties and 43 signatories to the Rome Statute, Africa is one of the ICC’s largest bases of support. With Egypt’s recent expressions of interest in joining the Court, that support looks like it will continue to grow in the future. Likewise, the African continent is well-represented on the ICC’s staff. Several Africans hold key positions in the Court, including the chief prosecutor, 5 of the courts judges are African including the first vice president and deputy registrar. Out of a total of 658 permanent ICC staff, 144 are African nationals, representing 34 African nations.
Critics of the Court all too often discount this participation. When they do, they lose sight of the fact that Africans are not the victims of a biased ICC, but willful supporters of the Court’s mission to end impunity for the crimes from which they have too frequently suffered.
Finally, the Rome Statute states the ICC should select the gravest situations under its jurisdiction. It is not about regional or geographic representation, and its not a subject of high politics, it’s the law: where there are crimes falling within its jurisdiction that are not being addressed by national jurisdictions, under the new system of international justice, the Office of the Prosecutor should step in if the Court is to do what it was set up to do.
Those 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? Arguably, it’s not about focusing on Africa; it is about working for the victims, and the victims are African. That is why the Court is a solution; its impartiality, its independence ensures the legitimacy of its intervention.
Stephen Lamony is a Senior Adviser at the Coalition for the International Criminal Court.
The views expressed here are mine and do not reflect the official position of the CICC.
[…] Ein stetes Begleitgeräusch der Arbeit des ICC ist zudem ohne Frage die grundsätzliche Kritik der einseitigen Ausrichtung des Gerichtshofs auf Fälle in Afrika. Eine aktuelle Replik zu dieser Haltung findet sich bei African Arguments unter dem Titel: Is the International Criminal Court Really Picking on Africa? […]
Mr. Stephen Lamony is trying to divert the issue. Africa’s complain against ICC is not about the less or more involvement of African states in the institution. They have a very clear point. ICC is connected to the UNSC and has become a stick against leaders who politically differ from the Western powers. Do you deny that ICC is serving as an instrument. We know that criminals from the genocide in Rwanda live in safe place in Europe and ICC has never raise this because these criminals are protected by powerful nations. Hey, the institution and the individuals working in this very instution are not serving the African poor, but the interest of other powers. The sooner or later we the African professionals will stop ICC to be replaced by an AU court.
Mr. Stephen has hit the nail on the head; and the performance of the AU in so far as the human rights and the interest and protection of Africans is concerned can be described as shameful. Sudan is the case in point. The fact that violations committed elsewhere has not dealt with by the ICC does not justify the kind of criticism based on such premise.
The ICC in my opinion is an effective deterrence of the African tyrants from committing atrocities against their own people. I would call for all Africans to find ways to strengthen and legitimize the role of the ICC.
Dear Editor,
It is with grave concern that I read the article entitled ‘Is the International Criminal Court really picking on Africa?’ by Stephen A. Lamony has been voted as the best African Arguments article of 2013. However, despite my appreciation for the concerns of the writer to African victims, the author, I must say, could easily be accused of ‘cherry picking’ the African Arguments on ICC and its role in Africa. The article, either due to lack of knowledge or as part of deliberate distortion of facts, I say this article has missed the vital arguments and concerns of Africans and observers of the work of ICC.
The increasing tension between the AU and the ICC’s role in Africa emanates from the following five specific factors: one, the politicization of the ICC’s judicial role through United Nations Security Council referral and deferral powers, compounded by the undemocratic nature of the same council and longstanding demands for its reform; two, the activist prosecutorial policy and selective prosecution pursued by the former chief prosecutor, Mr Luise Ocampo; three, the failure of the UNSC to formally respond to AU requests to defer trials for a year; four, widespread misunderstanding about the work of the ICC and the political misuse of referral of cases by African states; and, five, some discrepancies in the interpretation of the Rome Statute, particular on the rejection of impunity and application of immunity with regard to officials of non-states parties.
These factors could be summarized into two levels of argument and reservations on ICC.
Arguments on a higher plane ICC as a court that is strong against weak countries and weak against powerful states.
As per articles 12-15 of the Rome Statute, the ICC may initiate investigation either by the referral of a state party, willful acceptance of the ICC jurisdiction by a non-state party, prosecutor’s own initiative, or referral by the UNSC. The UNSC referral power enables the ICC to exercise jurisdiction when a state is not party to the Rome Statute. It can defer cases for a year continuously. While majority of the permanent UNSC members (USA, China, and Russia) are not state parties to the ICC, Articles 13 and 16 of the Rome Statute confer powers for referral and deferral of cases to the UNSC. These members of the UNSC apply rules on others that do not apply to them. For example, American citizens are shielded from prosecution by the ICC through bilateral agreements between the USA and other states, based on the American Service-Members’ Protection Act. Fairness demands that for a legitimate exercise of these powers they should first submit themselves to the same institution.
Some American, European and Middle Eastern officials have also been exempted from ICC investigation. Consequently, the ICC has been accused of being a tool of powerful states. Either due to the undemocratic nature of the UNSC or failure by the prosecutor to investigate cases outside Africa, many Africans regard this as a mockery of international justice.
Of the seven African cases before the ICC, only three were referred by African state parties to the Rome Statute. Two were initiated by the Prosecutor and two, Sudan and Libya, were referred by the UNSC. The president of Sudan and the former Libyan leader, Muammar Gadhaffi, became well-known for their political rows with the UNSC veto powers. By not investigating alleged crimes committed by non-African leaders and focusing only on leaders of countries such as Sudan, Libya, and Cote D’Ivoire, the ICC prosecutor and the UNSC have jeopardized the ICC project. Moreover, the ICC prosecutor failed to seriously follow-up the prosecution of many rebel groups for possible indictments.
The referral and deferral powers of the UNSC have brought the quintessential problem of international politics to the ICC. Africans and non-African alike argue that the referral and deferral power of the UNSC undermines the credibility and independence of the ICC by placing the court under the influence of those dominant global powers who will not submit to its jurisdiction. Ultimately, power-politics determine the decision to indict. ICC relations with the UNSC have reduced international justice to the selective justice of the powerful imposed upon the weak.
There are two solutions to the ‘arguments on a higher plane’. The first is to speedily reform the UN as requested by the AU and other emerging regional powers. The other option is to amend the referral and deferral powers in the Rome Statute. The Assembly of the States Parties (ASP) or the UN General Assembly, not the UNSC, should exercise the power of referral and deferral to the ICC. Clearly, these solutions to ‘the arguments on a higher plane’ are desirable, but improbable as states with veto powers are unwilling to relinquish their privileges.
Arguments on a Lower Plane
The peace-justice primacy dilemma: prosecutorial policy and interpretation discrepancies
‘Arguments on a lower plane’ relate to the old peace-justice primacy dilemma, the limits of discretionary prosecutorial powers, and discrepancies in the interpretation of some provisions of the Rome Statute. Without qualms, justice is essential for Africa. So is peace. Which one should be given primacy if circumstances dictate that we should prioritise one over the other—peace or justice? In this regard, we should ask: “is there a place for transitional justice?†Advocating justice is one thing; understanding the regional dynamics of peace and local priorities is another. There is no peace without justice, and justice cannot be served without peace or at the expense of peace. In less favorable circumstances, and in the case of Africa, one has to settle for less-ideal but also less unsatisfactory options. In some places such as Sudan, peace with some delay in the delivery of justice is preferable. In war, violations multiply and injustice breeds grievances, leading to more cycles of violence and injustice. In peace, however, there is a chance to pursue justice. In this regard a counterfactual question is: what if in 1994 South Africa under the leadership of Mandela had sought at all costs justice for the victimization that occurred during the Apartheid era? Would the UNSC have supported the persecution of Apartheid leaders?
Timing is vital for delivery of justice. Indeed in the case of Al Bashir, many Sudanese citizens argued that the ICC arrest warrant actually increased his popularity, at least in the short-term. Even Mr Ocampo himself privately admitted that the arrest warrant has increased the popularity of Mr Bashir as ‘crusader’. In Kenya, the last election in which Kenyatta and Ruto won, was considered as protest vote against the ICC.
On the other hand, the arguments at lower level could be addressed by improving the ICC’s prosecutorial discretionary powers.
Despite perceptions that the strongest opposition to the ICC emanates from the AU, its most formidable challenge comes from the ICC’s relationship with the UNSC and its former prosecutor, Mr Ocampo. Africa needs the ICC, and the ICC needs African States Parties.
African states are currently at the heart of all the debate about the ICC. While international justice aims at capacitating states to become ‘human rights protective regimes’, this can be achieved only through the accountability of violators of human rights. While we may have serious grievances and reservations about the nature and decisions of the UNSC and misgivings about the work of the ICC, African governments and Africans themselves have the long-term solutions to these crimes.
To keep the ICC at bay and address concerns about the misuse of the ICC by dominant powers, African states must first totally reject impunity and establish national and regional mechanisms that will ensure accountability even at the highest level of political office.
Dr Mehari Taddele Maru is an international consultant and Research Fellow at the NATO Defense College. He has also worked as programme manager for African Conflict Prevention and Risk Analysis at the Institute of Security Studies, and as programme coordinator and legal expert at the AU Commission. For more details on this topic follow the http://www.meharitaddele.info
Africa is as diverse as the views expressed on this blog. In keep on getting shocked an disappointed by an emerging trend I have noticed over the years on African Arguments. There is blatant attempt by some Africans like Mehari Taddele Maru and others to create the impression that they know every thing about Africa and just because they disagree with a view point that another African has expressed then views from the other African who doesn’t see things as the self anointed experts on Africa is wrong. This is a ridiculous and egotistic view of the world. Africans have different experiences in life, some have experienced very painful things that changed their lives, other have lived comfortable lives without the inconvenience of conflict and its impacts on their daily lives.
While all of us are entitled to our views, I would like to ask, who appointed Mehari Maru judge over other Africans. Any intelligent person will realize that his or her views may not be shared or tolerated by others. The fact that several Africans voted for this article as the best argument for the year despite Mehari Maru’s protest should inform him that the author is doing something right in the opinion of other Africans.There will always be spoilers like Mehari Taddele Maru who think that because they have a Ph.D they know everything, and hence still the thunder of others.
I will end by appealing to Africans to respect and tolerate other views by allowing intelligent discourse to continue on this forum whether you agree with a view point of not.
If disagree with what an author says express your independent opinion without trying to undermine others. it is only then that you will earn the respect that you seem to be craving for.