The International Criminal Court, better known as the ICC, is under fire from African leaders. The Hague court has been criticised for being an instrument of European neo-colonialism and a legal institution that shows bias towards African countries, among other things. At the General Assembly of the members of the court last week, South Africa and Kenya led other African countries to press for a reform of the institution on the threat of a withdrawal of their memberships. “When people leave a relationship they don’t leave for frivolous reasons”, Kenyan Foreign Minister, Amina Mohamed, told the Reuters news agency. “They leave if there is no space to move around…the space (for us) has shrunk.”
The reasons for African leaders threat to pull-out of the ICC are indeed not frivolous, but they are largely rooted in self-interest. The Kenyan government’s grudge with the ICC emanates from the court’s prosecution of current president, Uhuru Kenyatta and his vice, William Ruto, on allegations of crimes against humanity over their roles in the 2007 election conflict where over 1000 Kenyans were killed. Kenyatta’s government campaigned hard, not to prove his innocence, but to have the case against him dropped. In a lobby brief to members the UN Security Council in 2013, Kenya’s ambassador to the UN, Macharia Kamau said “Kenyans, in their sovereign wisdom elected to power two of the accused as president and deputy president…in effect sending a clear and unequivocal message that the two persons are…innocent.” The cases went ahead despite this pressure but the charge against Preisdent Kenyatta was eventually dropped after the ICC judges said witnesses withdrew their testimony out of intimidation.
The South African government’s disaffection with the ICC stems from the intense pressure from the ICC to arrest Sudan’s President Omar al-Bashir when he visited the country for an AU summit in June. Al-Bashir is wanted on charges of crimes against humanity and genocide due to the atrocities attributed to his forces during the Darfur Conflict in which over have 300,000 people died and about 2 million displaced. A South African high court barred al-Bashir from leaving the country until it decided whether he should be arrested or not, but the government flouted the order on the grounds that it had granted immunity from prosecution to all delegates attending the AU summit. The refusal to arrest the Sudanese President attracted the rebuke of the ICC, western nations as well local and international human rights groups. The South African government responded by criticising the court for unfairly targeting Africans while the ruling African National Congress proposed the withdrawal of the country’s ICC membership.
“The argument that the ICC operates with an African bias just doesn’t stack up in all respects,” said Maddy Crowther, the Head of Communications, Research and Asylum for Waging Peace, a human rights organisation campaigning against genocide and systematic human rights violations in Sudan. “Four out of the nine country situations under investigation by the ICC are self-referrals and two were Security Council referrals”, added Ms Crowther. “The Chief Prosecutor, Fatou Bensouda, is herself Gambian.” Maddy also argues that the complaints against the ICC have mostly come from African leaders and the elites, while civil society groups and ordinary citizens of their countries often want the ICC to do even more. “At Waging Peace we work with victims of the genocide in Darfur and the slogan that’s chanted at the demonstrations we help organise is “Al Bashir to ICC.” When activists stormed the Sudanese Embassy in Germany last week, they were carrying a banner saying “Put Omar Al-Bashir to ICC!” The call is for more international justice and engagement, not less. We shouldn’t side-line victims’ voices in this debate.”
For African leaders however, the continent is a victim of an ICC onslaught. Kenyan Foreign Minister said the court humiliated African countries by making its pursuit of Omar al-Bashir overshadow the African Union summit in South Africa. “All of us felt totally humiliated in June in Johannesburg,” she told the Reuters News Agency. “We weren’t allowed to focus on the issues that were important to the continent – peace, security, Burundi, Somalia, Mali. Totally distracted by this ‘arrest the president’ movement.” It is hard however not to see the true motivation of the leaders as their self-interests given that they have been pressing for an immunity from ICC prosecution for heads of state and state officials. Granting such demand would only strengthen the desire of those who have committed serious violations to hold on to power, Ms Crowther argues.
Ironically, the African leader’s pressure for the reform of the ICC shadows the local and international pressure on the same leaders to reform their own legal systems most especially in Sudan. “The government of Sudan continues to fail to ensure that those responsible for international crimes and other serious human rights abuses are held accountable,” said the World Movement for Human Rights in September on the second anniversary of the killing of at least 185 peaceful demonstrators by Sudanese security forces. “Reform of national laws and the judiciary is sorely needed…particularly in Sudan, where the legal framework itself upholds violations of basic human rights in many instances,” said Ms Crowther. The absence of such basic legal protections makes the intervention of the ICC even more necessary.
The ICC also has some introspection to do. The fact that world powers such as the United States of America and China are not members of the court will always provide its critics with stones to throw at them. That the US, in turn, pressures countries to honour the orders of the ICC also borders on hypocrisy. Ms Crowther also feels the ICC may have sent a wrong message in some of its recent decisions, for example by hibernating investigative activities in Darfur last December. “She intended to rebuke the Security Council for their inaction, but Bashir immediately declared victory over the “colonialist courts” and now victims are withdrawing from the case. Ever since, justice for Darfur has just been a series of press releases about Sudan’s failure to cooperate with the Court and about re-referrals to the Security Council – it’s been a primarily epistolary exercise.”
Just as al-Bashir’s temporal triumph over the ICC is a huge defeat for the Sudanese victims, so will the permanent withdrawal of African countries from the ICC, if it ever happens, be a loss for past, present and future victims of crimes across the continent. “The biggest group to lose out are the victims of the crimes under investigation”, Ms Crowther said. “They are not sure what form justice will take, or if it will ever in fact be realised.” There is a plan to expand the African Court of Justice and Human Rights’ jurisdiction to include international crimes, but there are also huge doubts over its effectiveness given that it will, for example, have half the budget of the ICC. This is despite the fact that the ICC limits itself to investigating just three crimes, whereas the African court proposes to take in many more.
Still, African leaders have not pulled their countries out yet. Ms Crowther says it may be because they also realise that it will be better to have the debates within the confines of the current system. The ICC has also probably been a bit of reticent about actually engaging with the issue, she added. “Western governments too glibly dismiss African concerns….The ICC has always called itself a court of last resort, so if national and regional courts have the capacity and skill to handle investigations independently, then that’s a valid solution.”