Last October Burundi, South Africa and the Gambia declared they were withdrawing from the International Criminal Court (ICC), citing reasons that generally have to do with the widely held perception that the ICC is only targeting African leaders. All but one of the ICC’s 10 investigations has been African-based. Taking place within only two weeks, these withdrawals, along with possible similar moves from a number of African countries, made the BBC referred to “African queue to leave the ICC’’
The international broadcaster may be right. Collective withdrawal by African member states of the ICC – 34 in total – has been on the agenda for quite some time. As recently as July 2016, the African heads of state and government in their AU Assembly at Kigali expanded the mandate of the AU’s Open-ended Ministerial Committee on the ICC to “include the urgent development of a comprehensive strategy including collective withdrawal from the ICC”.
Kenya, DR Congo, Chad, Central African Republic, Cote d’Ivoire and Namibia are said to be queuing up to leave the Hague-based tribunal shortly.
Described by the ICC chief prosecutor, Fatou Bensouda, as a setback, the withdrawal of the three African countries, therefore, may be just the prelude of a bigger showdown between the ICC and Africa.
Significance of the withdrawals
Each of these withdrawals is, however, significant in its own right. Burundi became not only the first African nation but also the first ever state-member of the ICC to quit it, a move that might have encouraged other members who were pondering about leaving it.
South Africa, as the UN Secretary General Ban Ki-moon put it when he urged President Jacob Zuma to reconsider the decision to leave the ICC, “played a key role in negotiations that led to adoption of the Rome Statute of the ICC and as one of its first signatories” while noting “the continual and unwavering commitment of South Africa’s government to justice and accountability”.
The BBC’s Southern Africa correspondence described Pretoria’s decision as Africa’s Brexit, given that South Africa was “one of the founding fathers of the world’s first permanent war crime court”.
The Gambia, on the other hand, is where Bensouda comes from and used to be Chief Legal Advisor to its President and Cabinet. The Gambian government thus seems to disown her top lawyer whom she seconded to the ICC. In addition, Banjul hosts the African Commission on Human and People’s Rights. In a sense, the withdrawal of the West African nation may, therefore, symbolize erosion of the African human rights system’s confidence in the ICC.
What went wrong in the relationship between Africa and the ICC? Why the zeal of African states to embrace the supposedly embodiment of universal criminal justice is diminishing quickly? Is the ICC is yet another false dawn in the humanity quest for justice and equality?
ICC Structural Weaknesses
In fact, the ICC has been marred with structural and serious weaknesses and deficiencies from the very beginning.
For first, none of the superpowers, members of the nuclear club, has joined the international tribunal. For example the only country in history that has used nuclear weapons in war, killing 129 thousand people, the USA, is not only outside the ICC, but has signed agreements with a number of the member-states to exempt American soldiers, who are deployed in the four corners of the globe, from being subjected to the jurisdiction of the ICC if they are accused of any crimes fall under the Rome Statute of the court. Nevertheless, the US government finds it appropriate to preach the African countries to abide by orders of the ICC!
As Thuli Madonsela, a leading South Africa Lawyer and the country’s former anti-corruption chief put it “it’s like saying: I’ll be the judge but me and my children will not be bound by it”. It is needless to say this is against the enshrined principle of equality before court of law. The saying goes “it is not enough to serve justice, but justice must be seen served “. This happens when the most powerful are subjected to the rules of justice and law.
Secondly, the ICC is subject to the authority of the UN Security Council, which has powers to refer any case anytime it pleases, as well as deferring any case before the court for one year that can be renewed annually indefinitely! Of course the Security Council is controlled by its 5 permanent members, 3 of whom are of not member to the ICC!!
Thirdly, the world biggest countries in terms of population; China, India and USA, are equally not members of the court. This means that more than half of humanity is out of the reach of the ICC.
Inborn Deficiencies
These inborn disabilities of the ICC have been compounded by the way its supposed parents and step-fathers brought it up. The practices of both the ICC’s senior officials and patrons, especially the UK, France, two permanent members of the UN Security Council and the EU, who were among the founders of the ICC and ostensibly strong advocates of universal criminal jurisdiction, have systematically undermined the moral authority of the ICC.
The ICC’s first prosecutor general launched his role with a number of cases which were all African-based. It was said then that these cases had been referred to the court by the respective African governments who subscribed to the Rome Statute, mostly against their armed opposition groups. Then the Security Council stepped in to refer two cases, also African-based.
The first referral by the Security Council in 2005, the situation in Darfur, had revealed what kind of justice the ICC was going to deliver under the control of the Council. The Council’s Resolution 1593 on the issue provided for exempting the US citizens from prosecution by the ICC in accordance with the resolution. In scantily veiled reference to those citizens the resolution states that: “nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to unless such exclusive jurisdiction has been expressly waived by that contributing State”.
In the meantime, the prosecutor general who has the power to initiate an investigation upon receiving enough information was very reluctant to do so in respect to any case outside the African continent, in spite of the several complaints he received from a number of NGO’s supported by information and documents.
For example he shows little interest in the Middle East conflict, which is the longest running international conflict, almost for 70years, with grave and tragic consequences on the international security, stability and the lives of millions of innocent people, with all sorts of war crimes and atrocities being committed.
On the contrary since 2009 the ICC’s persecutor general blocked all attempts by the Palestinian National Authority and civil society representatives to access the ICC’s “justice”.
The office of the ICC Prosecutor General has effectively obstructed the accession of Palestinian National Authority to the Rome Statute between 2009 – 2015, questioning the statehood of Palestine. To many lawyers that was beyond the scope of ICC Prosecutor General’s mandate.
Western hypocrisy
However, the most puzzling positions on Palestine accession to the ICC came from the otherwise enthusiastic advocates of the tribunal and universal criminal jurisdiction, namely Britain, Canada, France, and the European Union. All sorts of discouragements and outright threats were used by these powers to prevent Palestine from joining the ICC.
For example William Hague, the former British Foreign Minister said in 2012 that the UK’s recognition of Palestine’s statehood depended on its agreement NOT to join the ICC, though the published strategy of the British government on the ICC states that “ it strongly supports widening the court’s membership and will press states that are not members to join”. In case of Palestine, however, the pressure was in the other way around!
His French counterpart, Laurent Fabias, was a bit more generous; while acknowledging the “right” of Palestine to join the ICC, but warned that it would be “counterproductive”!
In July of this year the office of ICC Prosecutor General said it would examine the “Chilcot Report “ on actions of British troops in Iraq during the American-British occupation of the country between 2003 – 2011, for evidence of abuse and torture by British soldiers, but had ruled out putting Tony Blair on trial for war crimes. In response, there has been public outcry in Britain with leading politicians, including the former defense minister Sir Gerald Howath, calling to withdrawal from the ICC, “for the actions of both British troop and Mr. Blair should be judged by the British courts and were ‘not matter for foreigners”. The angry MP added “the idea the ICC is viewing the conduct of British soldiers a decade ago when they were sent out there by the politicians to do their best, verges on the offensive”.
A similar arrogant position was displayed by the US Department of State in response to the “preliminary examination” by the ICC of the US military and the CIA potential war crimes in Afghanistan. The spokesperson of the State Department described the move as not warranted or appropriate. While stressing the fact that US is not a party to the Rome Statute, she nevertheless almost conceded that her country used the ICC as a tool of its foreign policy. The State Department had earlier on criticized the declarations by the three African countries they were quitting the ICC.
Scandals and allegations of corruption:
On the 3rd of July, 2016, London Evening Post – an online newspaper – published very serious allegations against the current President of the ICC of receiving into her personal bank account “unexplained funds mounting to over US$17 million that was allegedly used to bribe witnesses that enabled the ICC to indict Sudanese President Omar Al-Bashir”. The alleged bribery of Judge Gurmendi overlaps her tenure at the office of Prosecutor General Luis Monero Ocampo. The ICC is yet to publicly respond to these allegations.
In fact the office of the ICC Prosecutor General is no stranger to controversies. In September, 2008, the Administrative Tribunal of the International Labour Organization in Geneva found that the ICC Prosecutor General had been responsible of “breach of due process” that was a “serious infringement” of a former media spokesman in the prosecutor’s office. The case involved allegations by the former media spokesperson put to an internal panel of judges that Mr. Moreno Ocampo himself was guilty of sexual misconduct. The alleged victim was a South African female journalist. The case was dismissed by the panel due to lack of evidence. The Prosecutor General sacked the media spokesperson and insisted on the dismissal in spite of recommendation by the court’s disciplinary board to the opposite. This brought the court a ruling by the Geneva tribunal to the pay the sacked official £120,000 in moral and compensatory damages for “breach of due process” and serious infringement of his rights caused by the ICC prosecutor general. An article in the UK Daily Telegraph on 14th September 2008, regarded the findings enough reason to the resignation of the Prosecutor General “A prosecutor who seeks to bring a President to justice must have judgment of the highest order on the strength of these findings, Mr. Moreno – Ocampo does not”, The Columnist wrote.
The only conclusion that is drawn from the stances cited above is that the ICC, in the official thinking of London, Paris, Brussels and Washington, is meant only to deal with the African countries and, maybe, some other developing countries that are not strategic allies to any of the super powers.
Conclusion:
Africa has for too long been a scene of experimenting a wide range of all sorts of projects by western powers ostensibly aimed to “civilize”, “modernize”, “organize” or “integrate” Africans in the globalized world. Slavery, colonialism, arbitrary partitioning of Africa, plunder of the continent’s precious assets, including antiquities, and even apartheid and racial segregation in different parts of Africa, were all presented and justified as humane missions in Africa. The ICC is part and parcel of this enterprise. One cannot agree more with Kenya’s President, Uhuru Kenyatta, in his assertion in 2013 that the ICC is “race hunting” on behalf of its benefactors and being used as a tool to oppress Africans. Kenyatta further notes that “Africa is not a third-rate territory of second class people. We are not a project or experiment of outsiders”.