Peter Fabricius
Foreign Editor
The relationship between the International Criminal Court (ICC) and Africa is hanging by a slender thread. The AU had already decided in 2009 that its members should not co-operate with the court because of its indictment of Sudan’s President Omar al-Bashir.
Last year the AU came close to deciding that its members should withdraw from the ICC altogether because of its refusal to defer its prosecution of Kenyan President Uhuru Kenyatta.
A high-level seminar was conducted by South Africa’s Brenthurst Foundation and America’s Africa Center for Strategic Studies in Addis Ababa last month to consider whether Africa’s relationship with the ICC was retrievable.
The vehemence of the attacks on The Hague-based ICC was sometimes startling as many participants condemned what one called the “geography of justice,” the ICC’s exclusive prosecution, so far, of Africans.
All eight of the “situations” or countries where the ICC is pursuing cases are African: Sudan, Kenya, Democratic Republic of Congo (DRC), Central African Republic (CAR), Ivory Coast, Mali, Uganda and Libya.
“The ICC has become the greatest threat to Africa’s sovereignty, peace and stability,” and “the ICC is a colonial institution under the guise of international justice” were some of the comments.
Speakers recalled how Kenyatta had likened the ICC indictment against himself to the imprisonment of his father, Jomo Kenyatta, the founder of Kenya’s independence, by the British colonial powers. And how a former African leader had compared the ICC to the slave trade because both had seized “black bodies from the continent”.
Though such analogies might be objectively and legally illogical, they expressed a subjective, emotional and political truth.
The ICC’s methods of selecting cases had been deliberately designed from the start to ensure that Western powers never ended up in the dock.
For example the principle of complementarity – whereby the ICC only takes up cases when national or regional courts are unwilling or unable to do so – meant that culprits in Western countries would be unlikely to be prosecuted by the ICC because their own national or regional courts would inevitably be deemed competent to adjudicate them instead.
The UN Security Council’s power to refer cases to the ICC for prosecution and to decide whether or not cases could be deferred had also been designed to provide protection to big powers, it was claimed. And the major powers – including China, India, the US and Russia – were not members of the ICC anyway.
The Western powers had also protected themselves from the ICC by so far failing to implement the crime of aggression, though this was scheduled to come into effect in 2017.
The US and its allies had by such stratagems absolved themselves of worse atrocities than any committed by Africa, such as Nato’s cluster bombing of Serbia in 1999.
And so the ICC was accused of seeking regime change, not objective justice, in its indictment of Kenyatta particularly.
Critics said the ICC’s justification that the Kenyan courts were unwilling and unable to prosecute him should have fallen away after Kenya adopted its new constitution and reformed its judiciary.
The ICC had also violated African sovereignty by flatly rejecting the AU’s appeals to it to defer the indictments of Kenyatta and Bashir at least while they were still in office.
And if the ICC was not actually seeking regime change, it was simply using helpless Africa as a convenient laboratory to establish international justice, picking the “low-hanging fruit” of African perpetrators who could not defend themselves.
Or at the very least the West was pursuing justice blindly through the ICC, recklessly disregarding the disruptive effects that pursuit was having on Africa’s own efforts to achieve peace and stability.
The indictment of two sitting presidents by the “human rights fundamentalists” of the ICC was particularly destabilising to Sudan and Kenya, it was claimed.
One participant suggested that if the ICC had been in existence in the early 1990s, and had treated South Africa as it was now treating Kenya, both outgoing President FW de Klerk and incoming President Nelson Mandela would have been indicted for crimes against humanity- instead of being jointly given the Nobel Peace Prize.
To this long and often vitriolic charge sheet, the ICC champions countered that the ICC was performing a vital service for Africa by at last arresting the impunity for atrocities which warlords and leaders had enjoyed on the continent for so long.
And how could the ICC be picking on Africa when African governments themselves had referred four of the eight situations which the ICC was prosecuting – DRC, CAR, Uganda and Mali?
It was true that the UN Security Council had referred the Sudan and Libya cases, while the ICC prosecutor himself had launched the Kenyan and Ivorian prosecutions. But he had done so in Kenya only after Kenya itself had failed to prosecute the perpetrators of the post-2007 election violence, for five years.
It was only when the ICC indicted a sitting head of state, Sudan’s President Omar al-Bashir, that the AU turned against it, the implication being that leaders were happy with the ICC until they felt personally threatened.
To the criticism that the ICC was undermining African sovereignty by prosecuting its leaders, the ICC’s defenders retorted that international justice was not only for African leaders but also African people – and especially for victims – and that these mostly supported the ICC.
And to suggest that even the Kenyan people had rejected ICC interference by voting Kenyatta and his running mate William Ruto into office last year after they had been indicted, ignored the fundamental principle of the separation of political and judicial powers.
“You can’t argue that international criminal justice must be subjected to political considerations and still speak for judicial independence,” one said.
So is there a way out of this logjam on the ICC? What could be done to reconcile these two fiercely opposed views?
Even strong defenders of the ICC agreed that its exclusive focus on Africa – the “geography of justice – would have to end. They blamed the UN Security Council rather than the ICC itself for this imbalance.
But the solution was to strive for more justice by extending the reach of the ICC to other parts of the world, rather than to contract justice by reducing its scope in Africa.
In particular, the blanket amnesty from ICC prosecution for sitting heads of state which the AU sought last year when responding to the Kenyatta indictment, would be a major reversal of Africa’s long quest for an end to impunity.
Some suggested that ensuring the ICC prosecuted non-African cases might not be as hard as it looked and that African countries should at least make a concerted effort to lobby for this.
However, others suggested that it might not be helpful to get bogged down on the double standards of the UN Security Council in relations with the ICC, as double standards were common in such international institutions and not much could be done about it.
The Nuclear Non-Proliferation Treaty, for example, was profoundly unfair but it was widely supported by many countries which recognised the inequality yet also felt the world was a safer place with it than without it.
Likewise, the question should be asked whether the ICC could still serve international criminal justice even if it was not perfect.
Considerable consensus emerged that perhaps the best way to tackle the ICC’s imbalance was for Africa to boost its own national and regional courts and judicial system generally.
Obeying its imperative of complementarity, that would mean that the ICC would have to leave more and more cases to Africa, eventually “withering on the vine.”
Much support was expressed in particular for the proposed extension of criminal jurisdiction to the African Court so it could prosecute the sort of cases now being heard by the ICC.
The AU is now debating this proposal and the seminar felt that Africans should throw a lot more support behind it – and that the ICC itself should devote more of its energies to strengthening African courts.
However, this proposal has run into its own problems. The seminar heard that the draft protocol to criminalise the Africa Court’s jurisdiction includes a raft of crimes much wider than the narrow focus of the ICC on the gravest atrocities – war crimes, crimes against humanity, genocide and soon, perhaps, aggression.
The proposed jurisdiction for the Africa Court would also include crimes such as the dumping of toxic waste, corruption, and effecting unconstitutional changes of government.
Many of these are economic crimes, of the kind that are usually committed by non-Africans against Africa. This suggested the protocol had been drafted more as a protest against the ICC, deflecting blame back whence it had come, rather than as a practical way of giving the African Court criminal jurisdiction.
The encouraging thing is that despite very caustic criticism of the ICC, neither the AU nor the participants in this seminar, called for Africa to pull out of it.
But something clearly needs to be done to ensure that doesn’t happen.