Is the International Criminal Court picking on Africa?

Many observers and critics of the International Criminal Court (ICC) argue that the Court has focused entirely on Africa and needs to expand its investigations to other continents. Some cast the ICC as a colonialist tool that is biased specifically against Africans. But while it is true that each of the individuals charged by the Court have been Africans, these arguments overlook and overshadow the fact that African governments have been largely supportive of the ICC and were instrumental in its founding.

As many have noted, of the eight active formal investigations that the ICC has opened in it’s over ten years of existence, all of them have been on the African continent. It is easy, then, with just that information, to conclude that the Court and its prosecutors have focused on Africa. But contrary to common perceptions, the ICC’s interventions in Africa have in fact been called for and supported by African states. In four instances—in the Democratic Republic of Congo, Uganda, the Central African Republic and Mali—the situations were referred to the ICC prosecutor by those very states.

In those situations where investigations were opened on the volition of the prosecutor, there was also support from African governments. In Kenya, the prosecutor was given evidence of crimes allegedly committed during 2007-08 post-election violence by an international commission established by the Kenyan government. Even then, an investigation was only formally opened after the Kenyan government failed to meet an agreed upon deadline for starting its own prosecutions.

Likewise, the investigation in Cote d’Ivoire was supported by the Ivorian government, under the leadership of President Laurent Gbagbo which voluntarily accepted ICC jurisdiction in 2003.

The remaining investigations—in Darfur and Libya—were referred to the ICC prosecutor by the United Nations (UN) Security Council, with both referrals receiving support from African states sitting on the Council at the time.

Rather than seeking out cases on the African continent, the ICC opened investigations where it was asked to, and where grave crimes were being committed. As current ICC Prosecutor Fatou Bensouda has said: “The office of the prosecutor will go where the victims need us… The world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion.”

African support for the ICC

“My largest constituency is Africa and its state parties. I make every effort to liaise with them and be truly attentive to their concerns,” remarked Ambassador Tiina Intelmann, President of the Assembly of States Parties to the Rome Statute (the ICC’s founding treaty) recently. Her office has carried out exhaustive efforts to respond to any question from African states, whether they are ICC states parties or not.

African countries have long supported the idea of an international criminal court. Members of the Organization of African Unity (OAU) and later the African Union (AU) were actively involved in the ICC’s creation. During the 1998 Rome Conference negotiations, OAU Legal Adviser Tiyanjana Maluwa gave two justifications for Africa’s interest in the ICC: the continent’s historical endurance of atrocities such as slavery and colonial wars, and the memory of the 1994 Rwandan genocide, where the international community failed to take preventative action.

In Maluwa’s words, these experiences “strengthened Africa’s resolve to support the idea of an independent, effective, international penal court that would punish and hopefully deter perpetrators of such heinous crimes”.

This resolve has carried through to the present. African states have routinely responded positively to requests for assistance by the ICC during the course of proceedings. They have facilitated investigations and provided crucial support to their conduct.

For example, just last month Rwanda, which is not a state party to the Rome Statute, cooperated in facilitating the transfer of ICC suspect Bosco Ntaganda to the Court. Furthermore, in July 2012, six West African heads of state attending a meeting of the Economic Community of West African States (ECOWAS) in Burkina Faso called for the ICC to intervene and conduct investigations of alleged crimes in northern Mali.

The fact is that several ordinary African citizens do not share the same opposing views as some of their leaders on the ICC. While attending an expert roundtable meeting on the African Union, the ICC and the United Nations Security Council (UNSC) in Addis Ababa in March 2013, I was asked why heads of state and senior government officials feel they are entitled to immunity from prosecution?

The AU and the ICC: a shaky relationship?

The AU’s relationship with the ICC is admittedly far from perfect. The AU has supported UN Security Council deferrals of the investigations in Darfur and Kenya, and most notably instructed member states not to act on the arrest warrant for Sudanese President and ICC suspect Omar Al-Bashir, arguing that he has immunity as a sitting head of state.

But that is not the whole story. It is important to bear in mind that institutional relations are complex and take time to develop. As a case in point, the relationship between the ICC and the UN was foreseen in the Rome Statute, but the negotiations of a draft relationship agreement as a basis for discussions between both organizations lasted for two years. No such provisions were foreseen for the relationship between the AU and the ICC, so some tension between the two may be expected.

The ICC Office of the Prosecutor has said that overall the relationship between the ICC and the AU has been very good. Between 80 and 90 percent of the ICC’s requests for cooperation are directed to African states, including to non-states parties, and to date none have been refused. One could argue that the Court’s current cases could not have proceeded without the support and cooperation of the AU’s member states.

Crucially, members of the AU have also begun to assert the need to abide by their obligations as members of the ICC over their membership in the AU. Countries such as Botswana, South Africa, Burkina Faso and Niger have publicly affirmed the need to arrest ICC suspects on their territory. During preparations for the July 2012 AU summit in Malawi, President Joyce Banda announced that the arrest warrant against President al-Bashir would be acted upon if he were to attend, which led to the relocation of the meeting to Addis Ababa.

Where states have been reticent to cooperate with the Court, African civil society has pushed the issue. In Kenya, for example, civil society groups worked through the Kenyan judicial system to assert the government’s obligation to arrest Al-Bashir.

Africans support justice

With 34 states parties and 43 signatories to the Rome Statute, Africa is one of the ICC’s largest bases of support. With Egypt’s recent expressions of interest in joining the Court, that support looks like it will continue to grow in the future. Likewise, the African continent is well-represented on the ICC’s staff. Several Africans hold key positions in the Court, including the chief prosecutor, 5 of the courts judges are African including the first vice president and deputy registrar. Out of a total of 658 permanent ICC staff, 144 are African nationals, representing 34 African nations.

Critics of the Court all too often discount this participation. When they do, they lose sight of the fact that Africans are not the victims of a biased ICC, but willful supporters of the Court’s mission to end impunity for the crimes from which they have too frequently suffered.

Finally, the Rome Statute states the ICC should select the gravest situations under its jurisdiction.  It is not about regional or geographic representation, and its not a subject of high politics, it’s the law: where there are crimes falling within its jurisdiction that are not being addressed by national jurisdictions, under the new system of international justice, the Office of the Prosecutor should step in if the Court is to do what it was set up to do.

Those who argue that the court is targeting Africans should stop and think for a moment: there are more than 5 million African victims displaced, more than 40.000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of Africans raped. Should the ICC ignore these victims?  Arguably, it’s not about focusing on Africa; it is about working for the victims, and the victims are African. That is why the Court is a solution; its impartiality, its independence ensures the legitimacy of its intervention.

Kenya Following Sudan Tactics To Undermine ICC

The Rome Statute of the International Criminal Court (ICC) obliges states parties to cooperate with the Court in regards to its investigations and prosecutions. It is perhaps not too surprising then that Sudan, which never ratified the Rome Statute, has not cooperated with the Court’s investigation in Darfur. What is novel is that Kenya—which joined the ICC in 2005—is now practicing its own form of non-cooperation that in many ways mirrors that of Sudan.

International community appeals for ICC assistance

In both Sudan and Kenya, ICC intervention was prompted by the findings of independent international bodies. This is key to understanding these states’ interactions with the Court.

In March 2005, the United Nations Security Council (UNSC) referred the situation in Darfur, Sudan for investigation by the ICC prosecutor. 

This came after a UN Commission of Inquiry in Darfur revealed that crimes against humanity and war crimes had been committed and that the Sudanese legal system was incapable of dealing with human rights violations.  Later that year, the prosecutor opened a full investigation.

In the summer of 2008, the prosecutor requested the issuance of arrest warrants for President Omar Ahmad Al-Bashir and other suspects. For many African and Arab diplomats the decision to open investigations in Darfur wasn’t a big deal. They were stunned, however, that a serving head of state could be prosecuted by the Court following a referral from the Security Council.

Two years after the Darfur referral, Kofi Annan handed over the Waki Commission envelope – containing the names of those suspected of being primarily responsible for Kenya’s 2007-08 post-election violence – to the ICC prosecutor. In November 2009, the prosecutor requested permission from ICC judges to uses his powers to open an investigation into the violence, leading to charges against six prominent Kenyans, including the future president and vice president.

Measures to escape ICC prosecutions

The Kenyan suspects and their allies in government have used the government apparatus to establish alternative rule of law mechanisms. In April 2012, President Mwai Kibaki lobbied his peers to pass a resolution extending the jurisdiction of the East Africa court of justice (EACJ) to cover crimes against humanity. Kibaki’s intention was to ensure that Uhuru Kenyatta, Francis Muthaura, William Ruto and Joshua Sang did not go to the ICC. Although the heads of state of the East African community agreed to extend the jurisdiction of the EACJ in April 2012, the vice president of the East African Law Society, James Mwamu, complained that “The EACJ has no jurisdiction whatsoever to deal with criminal matters and the move by the legislative assembly to pass that motion is absolutely illegitimate”.

The Kenya National Human Rights Commission (KNHRC) Commissioner Lawrence Muite also challenged the government’s efforts to transfer the ICC cases to the EACJ.  “This is not about justice for Kenyans. It is all about politics and protecting a few individuals. They seek to add protocols to the EACJ just for the sake of four people”.

It is worth noting that as early as 2006 and 2007, civil society organisations in East Africa had been advocating for extension of jurisdiction of the EACJ to include human rights violations. However, this idea was hijacked by Kibaki to protect the four suspects indicted by the ICC.

Similarly, the Sudanese government established the Special Criminal Court for Events in Darfur (SCCED) on June 7, 2005 – a day after the prosecutor of the ICC announced that he was going to commence investigations in Darfur. However, the cases at the SCCED do not address major issues of accountability in Darfur.

The ICC prosecutor gave both Kenya and Sudan ample time to undertake genuine and effective prosecutions at the national level before moving forward with his prosecutions.

Both countries have also tried to have their ICC cases deferred by the Security Council (under Article 16 of the Rome Statute, which allows for a one-year deferral) and have sought African Union backing for their endeavours. However, neither has found a receptive audience among Security Council members.

Politicization of the ICC process

By appealing to tribal and ethnic sentiments – portraying the ICC as a tool of Western imperialism—politicians in Sudan and Kenya have brainwashed many citizens and discredited the ICC and the Security Council in their countries, their region and beyond.

Extensive propaganda has been used to spread lies and turn their citizens against the Court and the Security Council while improving the credibility of suspects wanted by the ICC.

In the run up to the March 2013 elections, ICC suspect and Kenyan President-elect Uhuru Kenyatta stated that Kenyans would be voting on a “referendum against the ICC.” In relation to the prosecutor’s decision to drop charges against co-accused Francis Muthaura, he said “if Muthaura’s case is collapsing, is that not an indication even mine will go nowhere?” Kenyatta’s lie was exposed by ICC Prosecutor Fatou Bensouda on March 20, 2013, when she stated very clearly that he will face trial because the charges against him have not been dropped.

Over the same period, the Kenyan Daily Post published a fake statement purporting to be from the former ICC prosecutor Luis Moreno Ocampo apologizing to Kenyans for indicting four suspects of the 2007/8 post election violence. The statement entitled “Romour: is it true?? Uhuru/Ruto ‘s ICC cases…Exclusive apology of Moreno Ocampo to Kenyans” was completely false. While giving a speech with the headline “Ten Years of the International Criminal Court: Is the World Better Equipped to Deal with Mass Atrocities?” at the Roosevelt House Public Policy Institute, Hunter College in New York City on the 19th of March 2013, Luis Moreno Ocampo denied ever writing an apologetic letter to Kenyans.

In his condemnation of the Al-Bashir arrest warrant, former Sudanese UN Ambassador Abdalmahmood Abdalhaleem Mohamad claimed that the ICC is tool of imperialism, claiming that certain permanent members of the Security Council – the UK, France and the United States – were using it to dominate and destabilize Sudan and gain access to its oil and land.  He went on to say that the Court reflects the brand of Euro-American justice that had destroyed Iraq, Afghanistan and Gaza.

Kenyans engaging legally

In May 2011, the Kenyan government pursued an admissibility challenge claiming that, as a result of the adoption of a new constitution and judicial reforms, it was now capable of investigating and prosecuting ICC suspects. However, pre-trial judges rejected the challenge, stating that there was no evidence of a national investigation into the 2007-08 post-election violence.   While explaining the decision to drop charges in the Muthaura case on March 11, 2013, Bensouda complained of a lack of cooperation: 

“Despite assurances of cooperation, the government of Kenya has provided only limited assistance to the prosecution and failed to provide the prosecution with access to witnesses or documents which may shed light on the Muthaura case.”

Kenyan ICC suspects have never argued that they are senior government officials and are also entitled to immunity. In August 2011, President Kibaki axed William Ruto from his cabinet as higher education minister and Kenyatta and Muthaura both resigned from their positions as finance minister and head of public service and cabinet secretary, respectively, after the ICC charges had been brought against them.

Sudan, on the other hand, attempted to challenge the jurisdiction of the court and admissibility of the Darfur situation through a Court-appointed defense counsel. Pre-trial judges rejected that request stating that the counsel didn’t have the right to make such a challenge. Sudan also argues that Al-Bashir is entitled to immunity based on Articles 98(1) and 27 of the Rome Statute.  In fact, Article 27 stipulates the irrelevance of official capacity, in particular concerning heads of state.

International community must stand firm on need for ICC prosecutions

In conclusion, Kenya isn’t living up to its obligations as an ICC member state in engaging with the Court from a strictly legal perspective. It has far too readily followed Sudan’s lead in attempting to shield suspects from justice through a variety of means.