• Burundi, Gambia, South Africa quit
By Emma Emeozor
Enough is enough. That was the bold statement three African nations made to the International Criminal Court at The Hague recently. The trio of Burundi, South Africa and Gambia have announced the withdrawal of their membership of the court, posing a challenge to the integrity of the court.
The rising anger of African nations against the court reached its peak when Kenya’s President, Mr. Uhuru Kenyatta, and his deputy, William Ruto, were docked on charges of genocide and crimes against humanity. It was a collective protest against the ICC when African foreign ministers meeting in Addis Ababa, the Ethiopian capital, called on the court to defer the cases against Kenyatta and his deputy.
Kenyatta is the first serving African Head of state to be indicted while Laurent Gbagbo is the first African ex-Head of state to be charged by the court. The court has sentenced former Democratic Republic of Congo, Jean-Pierre Bemba to 18 years in prison.
The meeting in October 2013 was specially convened to discuss Africa’s relations with the court, particularly the question of “discrimination” and “concentration” on only Africa. The ICC is supposed to beam its searchlight on all parties to the Rome Treaty, which established it. But records show that, so far, it is only Africans that have been indicted since the court came into being in 2002.
Is it merely a conspiracy theory, and who could be behind it? Is Africa just unfortunate to have too many conflicts caused by internal forces? Whatever the opinion of analysts may be, what is clear now is that the authorities of the court can no longer take African nations for granted. And if it must retain its remaining African members, the ICC must undertake comprehensive reform among other actions fundamental to allaying fears of weak and minority states.
Rome Statute of the ICC
The Rome Statute of the International Criminal Court was the international treaty that founded the court. Comprising a Preamble and 13 Parts, it establishes the governing framework for the court. Adopted at the Rome Conference on July 17, 1998, it came into force on July 1, 2002, thereby creating the ICC as it is known today.
The Statute sets out the court’s jurisdiction over genocide, crimes against humanity, war crimes and, as of an amendment in 2010, the crime of aggression. In addition to jurisdiction, it also addresses issues such as admissibility and applicable law, the composition and administration of the court, investigations and prosecution, trials, penalties, appeal and revision, international cooperation and judicial assistance, and enforcement, among others.
How the court works
The court is intended to complement, not to replace, national criminal justice systems. It can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely.
This fundamental principle is known as the principle of complementarity. The Prosecutor can initiate an investigation or prosecution in three ways:
State Parties to the Statute of the ICC can refer situations to the Prosecutor; the United Nations Security Council can request the Prosecutor to launch an investigation; the Office of the Prosecutor may initiate investigations proprio motu, that is, on its own initiative on the basis of information received from reliable sources. In this case, the Prosecutor must seek prior authorisation from a Pre-Trial Chamber composed of three independent judges.
Immunity from prosecution
Immunity clause, which exempts national leaders from prosecution is clearly stated in the national criminal justice system of some countries. But this is not so with the ICC. Nobody, no matter how highly placed he is in his country, including serving Presidents and Prime Ministers, enjoys immunity from prosecution.
The court’s Statute says: “Acting in an official capacity as Head of State, member of government or parliament or as an elected representative or public official in no way exempts a person from prosecution or criminal responsibility.
“Superiors or military commanders may be held responsible for criminal offences committed by persons under their effective command and control or effective authority and control. However, the ICC cannot prosecute persons who were under the age of 18 at the time a crime was allegedly committed.”
List of indictees so far
Bahr Abu Garda (Sudan), Mohammed Ali (Kenya), Abdallah Banda (Darfur-Sudan), President Omar Al-Bashir (Sudan), Jean-Pierre Banda (CAR), Charles Bile Goude (Ivory Coast), ex-President Muammar Gadhafi (Libya), Saif al-Islam Gadhafi (Libya), ex-President Laurent Gbagbo (Ivory Coast), ex-First Lady Simon Gbagbo (Ivory Coast), Ahmed Haroun (Darfur-Sudan), Abdel Rahim Hussein (Darfur-Sudan), Saleh Jerbo (Darfur-Sudan), Germain Katanga (DRC), President Uhuru Kenyatta (Kenya), Joseph Kony (Uganda), Henry Kosgey (Kenya), Ali Kushayb (Darfur-Sudan), Thomas Lubanga Dyilo (DRC), Raska Lukwiya (Uganda), Ahmad al-Mahdi (Mali), Callixte Mbarushimana (DRC), Sylvestre Mudacumura (DRC), Francis Muthaura (Kenya), Mathieu Ngudjolo Chui (DRC), Bosco Ntaganda (DRC), Okot Odhiambo (Uganda), Dominic Ongwen (Uganda), Vincent Otti (Uganda), Vice President William Ruto (Kenya), Joshua Sang (Kenya) and Abdulla Senussi (Libya).
The list of people indicted since the court was established about 15 years ago and it shows that they are all Africans. Is this deliberate? The ICC says no. In response to Daily Sun’s queries sent via e-mail to the Court’s Spokesperson, El Abdallah Fadi, the Public Affairs Unit of the court, said: “Of the court’s ongoing 10 investigations, five were referred to the court by the concerned African states parties themselves (Uganda, Democratic Republic of the Congo, the Central African Republic I and II, and Mali) recognising the inability to address the crimes at stake and two were referred by the United Nations Security Council (Darfur and Libya) where African states are represented. Two more ICC investigations in Kenya and Ivory Coast were opened after consultation and with the support of the national authorities at the time.”
The court also dismissed allegations that Africa is its main focus: “Moreover the Office of the Prosecutor has also opened an investigation in Georgia and developments in this investigation should be upcoming The Office of the Prosecutor is also conducting preliminary examinations on other continents, including in Afghanistan, Colombia, Iraq, Palestine, and Ukraine.”
The court also insists that it is impartial in its handling of cases: “The ICC will continue to try the perpetrators of the most serious crimes of concern to the international community under its subject matter jurisdiction in an independent and impartial manner in its efforts to end impunity, whilst upholding the highest standards of procedural fairness and respect for due process.”
What ICC said on withdrawal of membership
Countries are free to withdraw their membership but this does not translate to the end of cases from such countries. This was contained in the response of the court to Daily Sun. It said: “Membership of the Rome Statute is a voluntary and sovereign decision, which is the prerogative of all States.
“According to article 127 of the Rome Statute, if a State Party decides to withdraw from the Statute, this action would only enter into force one year after the State has deposited its withdrawal notification with the UN Secretary General, unless the notification specifies a later date.
“A State’s withdrawal from the Rome Statute would not affect the obligations arising from the Rome Statute while the State was a Party to the Statute. Thus a withdrawal would have no impact on on-going proceedings or any matter, which was already under consideration by the court prior to the date on which the withdrawal became effective.”
Questions the court failed to answer
Why are all the indictees, so far, exclusively from Africa? How has the court encouraged Africa to manage disputes and prevent the present ugly situation that has snowballed into a mass protest and outright withdrawal of membership by aggrieved groups? Is the court saying cases of genocide, crimes against humanity and war crimes are more endemic in Africa than in Asia, Europe, and Latin America?
Africa and the demand for equity
Summarily put, African leaders are accusing ICC of lack of fairness. But he who comes into equity must come with clean hands. Can African leaders claim to promote fairness in governance and dispensation of justice? Yes, ICC’s focus is more on Africa than other regions of the world, but the reason is obvious. It is because of the failure of leadership in the continent. Africa has remained a continent where leaders are never answerable to the courts, if the need arises. It is a continent where the leaders would not hesitate to exterminate opponents in order to cling to power even for a lifetime; a continent where ethnicity plays a dominant role in the distribution of infrastructure and patronage, including who gets what position in government and, even more alarming, Africa has remained a continent where justice is perverted with impunity.
Therefore, the people, particularly the masses, have little faith in the judiciary. And this is where the intervention of an independent and impartial body like the ICC becomes inevitable. Without being immodest, the three countries that have announced their withdrawal as members of the court cannot claim to have clean hands.
Observers believe the current leadership of Burundi decided to quit the ICC to avoid being probed for genocide and crimes against humanity, and it is for the same reason that Gambia is withdrawing. South Africa is believed to have felt embarrassed by the action that the court took against it after Pretoria refused to surrender Sudanese President Omar al-Bashir, who had visited country to attend the African Union summit. By the Rome Statute, South Africa is bound to surrender an indictee like al-Bashir. Therefore, South Africa violated the law it vowed to protect.
Time for Africa to wake up
The alleged impartiality of the ICC poses a challenge to the African Union. If the AU feels strongly over the situation, then it must now put in motion the necessary mechanism for setting up an African Union Court that would be seen to dispense justice impartially.
Until this is done, there is need to listen to the appeal by the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court and Senegalese Justice Minister, Sidiki Kaba, that African member states thinking of leaving the ICC should “give dialogue a chance” before making a final decision to withdraw.