Africa’s confused relationship with ICC

By Sanderson N Makombe

African Presidents and the African Union leadership evidence a paralysis of decision making with regard to the relationship they wish to have with the International Criminal Court (ICC), if the voting for Libya’s referral to the ICC is put in context.

It is consequential to point that all cases currently before the ICC involve African states. Uganda, DRC and the Central African Republic are all ICC members who unilaterally referred their situations to the ICC.

Kenya, a state party, however did not self refer but the ICC prosecutor instituted investigations proprio motu (without invitation).Sudan, and now Libya, are non state parties referred to the ICC by the United Nations Security Council.

In July 2010, at the AU summit in Kampala, Uganda, the organization (AU) attacked Moreno-Ocampo (ICC Prosecutor) for securing an arrest warrant against Sudan’s Al-Bashir for genocide. The AU requested the UN to suspend the arrest warrants against al-Bashir.

Some even called for withdrawal of all cooperation with the ICC. Chad and Kenya, despite being state parties to the ICC, deliberately opted not to arrest Bashir when he visited their territories in clear violation of their legal responsibility arising from being a state party to the ICC.

In Uganda there are currently concerted efforts, both within and outside, lobbying the UN Security Council to defer investigations and prosecutions of some Lord Resistance Army commanders, ostensibly, based on the need to promote peace rather than justice.

The UN Security Council on 26 February 2011, unanimously passed Resolution 1970 (2011), referring the `situation` in Libya to the International Criminal Court (ICC).The three African states in the Security Council all voted affirmatively for the referral: South Africa, Nigeria and Gabon .

Just over a month ago the AU, led by the same South Africa, asked the Security Council to defer the case brought by the ICC prosecutor against six senior Kenyan officials for crimes committed in the last disputed election there.

The irony could not have been lost. The same South Africa voted to refer Libya to the ICC. No doubt when the serious business of investigating and  prosecuting the alleged criminals commences the same governments will be throwing spanners in the work of the ICC and lobbying for deferrals ,hiding under discredited notion of ‘interest of peace’.

This smacks of double standards, or at worst an inert inability for Africa to rest on solid principle on whether they subscribe to the doctrine underlying the ICC. The UNSC referral also makes interesting reading. Whereas Sudan was the first non state party referral by the UNSC, through Resolution 1593 (2005), the United States and China abstained from voting (but didn’t veto the resolution).

However on Libya the Permanent Five (P5) all voted affirmitively. This has implications for other troubled spots of the world. The gradual recognition of the ICC by the US is paramount, as the court seeks to establish itself as a truly international court.

The US is not a signatory as the initial decision to ratify  the ICC treaty was rescinded by George Bush Jnr when he succeeded Bill Clinton, who had ratified. It is refreshing that the P5 are able to come to compromises (abstaining, rather than vetoing) as the ICC continue to grow and would probably in future be the best route of dealing with international crimes, rather than the use of force.

The other interesting point about the referral is that the ICC when mooted was not premised on being a court of first instance. Rather, the ICC is supposed to take jurisdiction when a state is unwilling or unable to investigate or prosecute. These are not issues that currently arise in Libya as the conflict is still fluid and developing.

The ICC got involved only a week after the uprising started. The positive motive maybe was to strategically position the ICC as a deterrent, getting involved in as quickly as possible to arrest escalation of atrocities. Previously the UNSC would set commissions of inquiry before referring a situation to the ICC (as in Darfur).

This would not have escaped the attention of those responsible for human rights violations and the crusade to crash the opposition in Zimbabwe. As the country prepares for the constitutional reform referendum and  national elections probably before year end, Zimbabwe will once again dominate world news for the wrong reasons.

The current culture of impunity will not last forever and those who have been quick to point out that Zimbabwe is out of reach of the ICC tentacles ,presumably because China and Russia would veto such a resolution need to think again.

Admitted ,the same UNSC has not referred other grave situations like Yemen, and Burma, but that does not mean any other situation would not be of regard as Libya has demonstrated.

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