Africa and the International Criminal Court: A drag net that catches only small fish?

By William Muchayi

The appearance of William Ruto, Kenya’s Vice President before the ICC and only to be followed by his boss Uhuru Kenyatta in November at the Hague , has once again reignited the debate on Africa’s relationship with the court.

Not only has it worsened the already fragile marriage between the two, but, it has also given ammunition to critics who for long, have resented the alleged partiality of the institution. Since its birth in 2002, all cases so far launched have been against Africans, with notable figures on the list including Omar Al Bashir [Sudan], Jean Pierre Bemba [DRC], Joseph Kony [Uganda] , Muammar Gaddafi [Libya], Laurent Gbagbo [Ivory Coast] and many others.

Rather than being viewed as an instrument to fight impunity and human rights abuses globally, critics of the court are quick to label it as a colonialist tool that is biased specifically against Africans. In this mindset, the ICC is viewed as nothing else but just an extension of the West’s imperialistic desire to control former colonies and those in Africa in particular.

Professor William Schabas queries:

“Why prosecute post-election violence in Kenya or recruitment of child soldiers in the DRC, but not murder and torture of prisoners in Iraq or illegal settlements in the West Bank?’ Tony Blair, the former British prime minister and George W. Bush [jnr], the former American president, the chief architects of the botched Iraq invasion were never indicted by the ICC nor were they referred to it by the United Nations Security Council [UNSC], in spite of the ample evidence available to justify legal proceedings against the two.

“In the eyes of African critics, the court’s focus on Africa just perpetuates the old and tired perception of the continent and its people as brutal, barbaric, chaotic, monstrous, savages and the theatre of ICC crimes. Rather than being viewed as an international criminal court, its critics laugh at the idea as they would want to call a spade by its name, hence the preferred name the ‘International Criminal Court for Africa.”

Echoing the same sentiments, Chairperson of the African Union Assembly, Ethiopia’s prime minister Hailemariam Desalegn, at the recent AU Summit voiced his concerns: “African leaders came to the consensus that the ICC process conducted in Africa has a flaw. The intention was to avoid any kind of impunity but now the process has degenerated to some kind of race-hunting rather than fight against impunity.”

African leaders object to the UN Security Council’s powers to refer cases to the ICC, as in the case of Omar Al Bashir of Sudan in relation to the Darfur crisis, lack of transparency in the ICC proceedings, the need for clarification on the immunities of officials whose states are not party to the Rome Statute which gave birth to the court as well as the lack of regional input in determining whether or not to proceed with prosecutions.

Not only that, Africans are of the view that the ICC’s approach which tends to focus more on prosecutions than resolution of disputes between warring factions limits discussion within the domestic sphere, hence the approach becoming counterproductive. To back this argument, Uganda and Darfur crisis come into the fore.

The indictment of Joseph Kony of the Lord’s Resistance Army [LRA] in Uganda[2005] by the ICC is seen as an impediment to the peace process in the country as Kony refuses to enter into peace negotiations with the Ugandan government unless the ICC revokes its indictment. That also applies to the Darfur region where the indictment of Omar Al Bashir is viewed by African leaders as counterproductive as it stalls the peace process since the Sudanese strongman is seen as part of the solution to the crisis.

That being said, accusations levelled against the ICC by its staunch critics appear hollow more so when one considers the fact that most cases investigated by the court are self-referred. Out of the 18 cases that the ICC is currently handling, 12 were initiated upon the request of countries concerned while six were launched based on the referral of the United Nations Security Council [UNSC].

It is the Ugandan government that referred Joseph Kony to the ICC and not the other way round. In the same token, the ICC never requested the indictment of Jean Pierre Bemba, but, the warlord was referred to it by the DRC government just like Laurent Gbagbo by the Ivorian government. In any case, the ICC encourages self-referrals as opposed to it taking the initiative in prosecutions.

As John Washburn reiterates, ‘This is not a question of picking on Africa. The UNSC referred Darfur; and the other countries came forward voluntarily.’

The ICC does not have a mandate to prosecute the USA or Israel in spite of their appalling human rights records as the two fall out of the ICC’S jurisdiction. Referral of any of the above two countries to the ICC by the UNSC is almost impossible as the move is guaranteed of being vetoed by one of the five permanent members of the Security Council of which the US is one of them.

The ICC will only intervene as and when a national government lacks either the will or capacity or both to prosecute a crime committed within its jurisdiction. The Kenyan government failed to prosecute perpetrators of the 2007-8 politically motivated violence that left about 1200 people dead hence the need for the ICC’S intervention.

In Cambodia, the government set up the Cambodia Tribunal [officially known as the Extraordinary Chambers] to prosecute perpetrators of the 1975-1979 atrocities committed by the Khmer Rouge regime. In the same way, Bangladesh and Guatemala set up tribunals to try perpetrators of war crimes, genocide and other human rights abuses with or without the assistance of the United Nations.

In the former state of Yugoslavia, Slobodan Milosevic was tried by a tribunal set up in the country and not by the ICC. Africa lacks the will and capacity to try perpetrators of war crimes and genocide, hence the need by the ICC to intervene. Hundreds of innocent victims perished in Zimbabwe during the 2008 atrocities but none of the perpetrators of the crimes was ever held accountable up to today.

Where is the justice for the wronged? Africa’s failure to establish strong , viable and credible institutions that address cases relating to crimes against humanity, genocide and war crimes is the main reason she has become the focal point of the ICC and this has nothing to do with race. In any case, the ICC does not supersede the authority of national courts; rather it is a ‘court of last resort.’

The African court, established in January 2004 should have enabled African states to address human rights issues within the continent, thereby, avoiding being the target of the ICC. Unfortunately, like other countless dysfunctional African institutions, it has failed to carry out or implement its mandate to monitor states’ compliance with the African Charter on Human and People’s Rights.

As if that is enough, the court lacks funding, leaving it an elephant institution. The cost of a single international criminal trial is estimated at nearly US$20 million and this astronomical figure is almost double the combined approved 2009 budgets of the AU Commission and the African Court. Until when African nations are mature enough to be able to fund their own institutions and establish credible and vibrant infrastructure necessary to successfully prosecute international crimes, the ICC will always have a central role in the continent.

Inaction by Africans is no substitute for action. If African national and regional courts fail victims, international courts like the International Court of Justice [ICJ] or the ICC will always have a role to play. As the current ICC Prosecutor Fetou Bensouda remarked, ‘’The office of the prosecutor will go where the victims need us…..As Africans we know that impunity is not an academic abstract notion.’’

African leaders who mourn about the ICC’s intervention in the continent must realise that the only viable solution for the continent to evade the wrath of the court is by establishing credible institutions that address human rights abuses backed by the will to fight impunity. Kenya’s attempt to pull out of the ICC is both ill- informed and unfortunate for she is to blame for failing to prosecute known murderers as she lacks the will to do so.

As one critic pointed out, there is a popular outrage ‘throughout Africa against the impunity with which a growing number of regimes have been resorting to slaughter and brutalise their population.’ In this context, the ICC is more than welcome by the defenceless who happen to be the majority.

William Muchayi is a pro-democracy and political analyst who has written for several publications. He can be contacted on [email protected]