The ICC maintains that it is a legal institution and so is apolitical. This assertion does not stand up to scrutiny, writes Westen K Shilaho.
The AU was reported to have adopted a “strategy of mass withdrawal” from the International Criminal Court during its recent summit in
Addis Ababa.
Although the resolution was non-binding, its significance was political. South Africa, Burundi and Gambia announced their intention to withdraw from the Rome Statute Treaty last year. The new Gambian government has since reversed its position.
Nigeria and Senegal expressed confidence in the court. Nigeria, one of Africa’s anchor states, is one of a number of AU member states in support of the ICC that argue for reform from within.
Zambia also seemed to distance itself from the resolution.
Mozambique reaffirmed its ICC membership.
The AU Summit in Joburg in June 2015 was the most dramatic with regard to the protracted row between the ICC and the AU.
The presence of Sudanese leader, Omar al-Bashir, threw the summit into a tailspin after a Joburg-based civil society organisation, the Southern African Litigation Centre, petitioned the court to order South Africa to arrest and hand over Bashir to the ICC in fulfilment of its obligations as a signatory to the Rome Statute.
This forced Bashir to flee the conference venue and hurriedly fly back home. South Africa’s high court and Supreme Court of Appeal noted that the government should have arrested Bashir.
The saga compelled South Africa to withdraw from the ICC.
Pretoria argued that its obligations to the ICC were impeding its conflict resolution efforts in Africa, since its mediation role across the continent and its obligations to the court were irreconcilable.
In yet another legal setback, the Constitutional Court ruled this month that the government’s decision to withdraw from the ICC was “unconstitutional and invalid” because the executive had bypassed Parliament.
Although Burundi has not changed its decision, President Pierre Nkurunziza is embattled and ruling a divided country that could relapse into civil war.
In all three countries - South Africa, Burundi and Gambia - the decision was an indictment of the credibility of the court as much as of the rulers in question.
The AU has advocated for the ICC's reform while urging member states to strengthen
their judiciaries.
Functioning judiciaries and an effective regional court would obviate the need for the ICC to intervene in African conflicts.
Owing largely to executive interference, Africa’s judiciaries are often differential in dealing with human rights violators.
This has meant that the ICC has often stepped in as a court of last resort.
Expanding the AU’s African Court of Justice and Human Rights to have jurisdiction over crimes under the Rome Statute is laudable, but is yet to be finalised. Even if its jurisdiction were to be expanded, African presidents would enjoy immunity before the court, in accordance with the Malabo protocol adopted during the 2014 AU summit.
The ICC has to navigate a tenuous line between politics and the law since it operates in a political environment. Beginning with the Nuremberg (1945-1946) and Tokyo trials (1946-1948), international criminal justice is controversial because of its lopsidedness. The concern over “victor’s justice” has been a historic leitmotif in international criminal law.
Leaders and citizens of powerful nations and their allies tend to operate above the law: a luxury their counterparts in Africa and other developing countries and the vanquished can ill afford.
It is not possible to depoliticise the ICC because within its jurisdiction are crimes whose masterminds are political actors.
The court maintains that it is a legal institution and so is apolitical. This assertion does not stand up to scrutiny. Evidence-gathering and the implementation of arrest warrants require the co-operation of governments. How many people to indict and when to indict in a conflict situation are political decisions.
The UN Security Council has influence over the operations of the ICC, yet three of its five veto-wielding permanent members - China, Russia, and the US - have yet to ratify the Rome Statute.
As such, the ICC is both a judicial and a political institution.
The suspicion with which some African rulers regard the ICC stems from the humiliation Africans endured over centuries. The legacy elicits a siege mentality and makes African rulers fetishise sovereignty.
Slavery, colonialism, apartheid and even neo-colonialism evoke suspicion against the ICC and similar Western-dominated institutions. Some African rulers and their supporters perceive the court to be an adjunct of imperialists out to humiliate Africans. It does not help matters that 9 out of 10 countries with cases before the court (Georgia is the 10th) are African.
The fact that five are self-referrals has not debunked the narrative that the ICC focuses almost entirely on atrocities in Africa while ignoring them elsewhere.
It is anomalous that the US, Russia, and China have a say in the ICC's operations and yet do not recognise the court, thus denying it universality and legitimacy.
However, the notion of absolute sovereignty is ahistorical and chimerical. Nations have traditionally interfered in each other’s affairs.
Ultimately, justice and peace reinforce each other, while impunity is a threat to the rule of law and stability.
* Shilaho is a National Research Foundation Pan-African research fellow at the University of Johannesburg’s Institute for Pan-African Thought and Conversation.
** The views expressed here are not necessarily those of Independent Media.