Africa’s broken relationship with the International Criminal Court
By Whitlaw Mugwiji
To be or not to be is the question that Africa has begun answering in regards to the ICC. President Pierre Nkurunziza signed a decree on Tuesday the 18th of October 2016 signalling Burundi’s intention to quit the International Criminal Court. This came after its parliament had voted overwhelmingly to remove the country from the court’s jurisdiction.
Before the ink on the decree had dried, South Africa had already made a formal request to have its membership withdrawn from the ICC. Adding intrigue to this ongoing debate, Gambia announced its intention to withdraw its membership from the ICC too.
Initially it was easy for commentators to dismiss Burundi’s actions since the court had launched preliminary investigations into the country’s leadership. But South Africa and Gambia have made it abundantly clear that Africa’s threats to leave the ICC en-masse were not empty.
I probably agree on many issues with many of you, perhaps this is one of the few cases were my personal view is not in tandem with the so called pro-democratic forces. I support and respect the African Union’s position to leave the ICC and here is why:
The court’s neo-colonial agenda
We must never forget that the architecture of the international system was crafted by the victors of the second world war. Institutions like the United Nations, the World Bank and the IMF have been used by the powers that be to further their own neo-colonial agenda. Unfortunately, the ICC has become an extension of that global system.
To highlight my point, the Security Council can refer cases to the ICC despite the fact that three of its five permanent members with veto powers are not party to the Rome statute. Even more worrying is the fact that the Security Council has not always acted above board.
For instance, the United States of America has on several occasions vetoed Security Council resolutions concerning Israeli war crimes on Palestinian territory. And so, has Russia and China vetoed UN draft resolution to refer Syria to the International Criminal Court.
It’s amazing that countries that do not want to be held accountable under the Rome Statute play referee, referring or blocking cases that can go to the ICC from the Security Council? We must not only wonder where the Security Council derives its moral authority from, but question why it is allowed to play such a role?
This whole system has been faulty from its origin. Even if we were to somehow accept the authority of the Security Council, are we Africans supposed to sit and smile when we do not have veto power in this council, worse in matters that affect African countries?
I do not think so. I hope this ICC crisis will act as a sign to the powers that be that all is not well. International systems need to reform if they are to live up to their promises and moral values.
Africa says peace over justice
African institutions like the AU and other regional bodies have an opinion in this thorny debate namely that pursuing justice can undermine peace negotiations. Many might not agree with Africa’s stance on this debate but its stance is clear, Africa believes in peace over justice.
The ICC obviously does not agree. It believes in justice at whatever cost to the affected country. This behaviour is not any different to how Western leaders behave or have behaved in the past. They have sought to get rid of leaders who are not subservient to their interests under the pretext of them being evil. This is not to exonerate that the condemned regimes, but it is simply to explain the Western hypicrisy, for it mantians cozy relationships with far worse regimes.
The West under the banner of international community overthrew Gaddafi. Need I remind you dear reader that Africans were excluded in the deliberations on Libya, their advice utterly ignored. Now the country is ungovernable with even more human rights abuses. The international community chose expediency over peace and Libya reaped anarchy.
The ICC has taken this unfortunate direction, indicting sitting Heads of States, which obviously, the African Union disagrees with. The African Union’s view is to suspend justice in exchange for a possible end to a conflict. It has argued that prosecution or indictment poses a dangerous and unfortunate obstacle to any peace process.
That is why the African Union viewed the indictment of Omar Bashir in 2009 as an assault on the peace process in Sudan. Justice must never be mande a hindrance to diplomatic efforts to establish peace.
Surely the Court could have delayed indicting any sitting Heads of State until they have left office. This small gesture would have resolved the conflict between the AU and the Court. Showing a bit of respect to African Institutions and their line of thinking is not too much to ask for. I wonder if the Court will ever attempt to arrest any Western sitting Head of State.
The selective enforcement of the Rome Statute
The Gambian Information Minister Sheriff Bojang explaining why Gambia decided to leave the ICC had this to say: “this action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans”.
Unfortunately, the sentiments expressed by the Gambian Information Minister are shared by many Africans across the globe, myself included. Why has Tony Blair and his army generals not been indicted by the court? This is a question we cannot ignore. Great Britain is a party to the Rome Statute thus their actions are within the court’s jurisdiction.
The then United Nations Secretary General Kofi Annan described explicitly that the Iraq war was illegal as it breached the UN Charter. Do the Iraqi civilian lives lost through this illegal war count for nothing? Or are Western perpetrators of war crimes above the law?
According to South African ruling party ANC’s head of International Relations Sub-Committee Obed Bapela, 66% of the ICC budget comes from the European Union (EU). It therefore does not come as a surprise that Tony Blair, the former British Prime Minister, has not been indicted for war crimes during the illegal Iraq invasion in 2003. We know that he who pays the piper calls the tune. But we Africans are sick and tired for being second class citizens of this world.
Dr Milton Wolf says selective enforcement of the law is the first sign of tyranny. We as Africans are feeling the weight of this tyranny. In fact, we have always felt it. During our liberation struggle our heroes were labelled terrorists. Yet, yesterday’s monsters, those who murdered, brutalised and dehumanised our people during Africa’s colonization, are celebrated in Western cities.
King Leopold the second is celebrated across Belgium but he committed a genocide in the Congo. As victims of the worst kind of racism (slavery) , we are very conscious of the existence of racism on the international scene.
Thus, we view this selective application of international law not only as a form of legal abuse but a threat to the rule of international law. What is good for the goose must also be good for the gander.
A case for victims
The Africa Group for Justice and Accountability notes that the decision to leave the ICC has the potential to deprive the victims of human rights violations a recourse to justice. That is why I find pulling out from the ICC without a clear strategy on how to make our leaders account for atrocities they commit in their respective countries not only morally wrong but also foolhardy. It sends the wrong message about our seriousness to deal with these heinous crimes and our desire to see an end to impunity.
We cannot afford to forget the African victims in this intellectual discourse. Since Africa’s pull-out is no longer in doubt, the AU must establish its own independent African Criminal Court with the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity and war crimes. We must all now be gripped with discussions around the modalities of establishing this Court.
Of course establishing the court will bring with it many challenges. Friends and foes alike will question our court’s integrity but I sincerely believe that in the long run Africa will rise to the occasion.
We shall over come
You can follow Whitlaw on his blog Whitlaw Mugwiji