International Criminal Court debate: Who is afraid of ICC?

Do African leaders have a point in insisting that the International Criminal Court is narrowly defining its functions to mean policing Africa? Otherwise how come all the 30 indicted since its inception are Africans?

It could have been the need to deal with the continent’s chaotic history or a desire by African leaders to use the ICC for their own reasons or something else.
The truth is, however, that Africa was the first continent to warm up to the ICC and without its support probably the ICC wouldn’t have come into operation.

The Rome Statute of the ICC, which established the court, was given a head start by Senegal, an African country, which was the first in the world to endorse the Statute on January 14, 1999.

The Democratic Republic of Congo, on the other hand, helped the ICC to jump the legal threshold and come into force when it became the 60th country to ratify the Rome Statute. The ICC as a result came into force on July 1, 2002, to investigate and try crimes like genocide and what is generally called crimes against humanity.

Deepening feud

The court now has 120 member countries, with Africa contributing the biggest bloc of members (33). But recent events have put Africa literally at war with the global court.
Two weeks ago, African leaders asked the ICC to stop its prosecution of Kenyan leaders during the African Union assembly in Addis Ababa. The AU resolution came at a time when African leaders were up in arms against the ICC, accusing it of targeting Africans.

The assembly was persuaded by a suggestion by the East African Community that ICC’s prosecution of Kenyan leaders in relation to the 2007/8 post-election violence would undermine “the on-going peace building and national reconciliation processes (to) prevent a resumption of conflict and violence in Kenya.”

This proposal, well-articulated by President Museveni in Addis Ababa, cites the principle of complementarity in the Rome Statute that set up the ICC, which allows, for example, for the establishment of an international division within the High Courts of different countries to try international crimes. They want the accused to be tried in Kenya, by Kenyan courts.

Mr Museveni’s attacks against the ICC did not start in Ethiopia. Speaking at the inauguration of Kenya’s President Uhuru Kenyatta on April 9, Mr Museveni “saluted” the people of Kenya on the “rejection of the blackmail by the International Criminal Court (ICC) and those who seek to abuse this institution for their own agenda.”
The election had pitted Mr Kenyatta, running on a joint ticket with fellow ICC indictee, Mr William Ruto, against Mr Raila Odinga and Mr Kalonzo Musyoka, who were thought to support the indictments.

During the campaigns, it had been suggested that Kenya risked tough times if the indicted duo was elected.

Museveni call
Mr Museveni said he originally supported the ICC because he “abhors” impunity but “The usual opinionated and arrogant actors, using their careless analysis, have distorted the purpose of that institution.”

He said the ICC is now being used to install leaders of the choice of the sponsors of ICC in Africa “and eliminate the ones they do not like.” Events like the post-election violence that engulfed Kenya in 2008 cannot be addressed by “a legalistic process, especially an external one.” What is needed, Mr Museveni said, is an “ideological solution by discerning why they happened” but not “legal gymnastics.”

But, then, why did Mr Museveni refer Lord’s Resistance Army leader Joseph Kony to the ICC? He said it is because Kony was operating outside Uganda. The ICC has increasingly seen its relations with African leaders strained since the indictment of Mr Omar Bashir, President of Sudan in 2009 against the will of most African leaders.

So when the ICC wanted to set up a liason office at AU headquarters in Addis Ababa, the effort was frustrated. Last year, the 19th AU summit was relocated from Malawi to Addis Ababa because the then new Malawi President, Ms Joyce Banda, had threatened to execute the ICC warrant of arrest against Mr Bashir if he went to attend the conference.

Some African leaders are now looking to establish or strengthen existing regional courts to substitute the ICC. A report by Avocats Sans Frontières (ASF), or Lawyers Without Borders notes, “The AU and other regional blocks like the EALA are now on the road towards actualizing their resistance to the ICC by clothing existing Courts such as the African Court on Human and People’s Rights and the East African Court of Justice with the jurisdiction to try international crimes.”

Misplaced criticism
Mr Jonathan Musana, a graduate student of international relations at the University of Leeds in the UK, says the criticism against the ICC is “broadly misplaced”. He says the ICC “was inevitably bound to concentrate more on Africa” since it can only try crimes that were committed after its coming into force in 2002.

Mr Musana argues that by that time, most of the long term wars were in Africa, in countries like in Uganda, Congo and Sudan and there were also short term disturbances in countries like Kenya, Ivory Coast and Libya.

On the other hand, there were hardly any wars or major disturbances of peace in the Americas and Europe and most of Asia, apart from the Arab world and the Israel-Palestine conflict.

Some say the ICC should have taken interest in the Iraq war of 2003 which was fought on the pretext of ridding Iraq of “weapons of mass destruction” but found no such weapons after causing mass deaths and destruction.

Mr Musana says this argument misses the point. In the first place, he says, the former leaders who have been accused of waging the war “would almost be impossible” for the ICC to touch.

These include Mr George W Bush, former President of the US and Mr Tony Blair, former Prime Minister of Britain. “The nascent ICC would be making a fatal blunder to punch above its weight by attempting to indict such leaders because their countries would not allow it,” Mr Musana argues.

In here, however, Mr Musana may provide ammunition for African leaders. Is the ICC targeting them because they are weak?
But Mr Musana makes a probably more profound point. The ICC was invited to Africa by African leaders themselves, he argues.

Out of the 30 people the court has indicted, he argues, only six were as a result of the ICC Prosecutor’s nitiative. The remaining 24 indictments resulted from applications by Africans themselves, especially individual countries asking ICC to investigate certain cases.

The cases in Uganda, the Democratic Republic of Congo and the Central African Republic, for example, were self-referrals by the respective states themselves. In the other cases, other Africans would invite the ICC to intervene, like in the case against Col. Muammar Gaddafi, former leader of Libya.

Kenya also invited ICC to help with the investigation of crimes committed during the post-election violence in 2008. The investigations resulted in the indictment of six people, with charges eventually being confirmed against four of them, including current President, Mr Uhuru Kenyatta and his deputy, Mr William Ruto.

Tough test
The ICC has set the trial of Mr Ruto for this September and it is yet to set the date for Mr Kenyatta’s. Last Monday, Trial Chamber I of the ICC declined to confirm the charges against former Ivory Coast President, Mr Laurent Gbagbo, giving the prosecutor until November to provide more evidence.

These three are probably the most high profile suspects the ICC has charged so far and it is difficult to tell how their trial will turn out or whether it will take place at all. The future of the ICC may just well depend on how it handles these cases.

Those indicted by ICC

Name Mode of indictment
Amudat Bahr Abu Garda Prosecutor’s application
Mohammed Ali Referred by own country
Abdallah Banda- Prosecutor’s application
Omar al-Bashir- Prosecutor’s application
Jean-Pierre Bemba – Referred by own country
Muammar Gaddafi- Referred by UN Security Council
Saif al-Islam Gaddafi- Referred by UN Security Council
Laurent Gbagbo- Referred by own country
Simone Gbagbo- Referred by own country
Ahmed Haroun- Prosecutor’s application
Abdel Rahim Hussein- Prosecutor’s application
Saleh Jerbo- Prosecutor’s application
Germain Katanga- Referred by own country
Uhuru Kenyatta- Referred by own country
Joseph Kony- Referred by own country
Henry Kosgey- Referred by own country
Ali Kushayb- Referred by own country
Thomas Lubanga Dyilo- Referred by own country
Raska Lukwiya- Referred by own country
Callixte Mbarushimana- Referred by own country
Sylvestre Mudacumura- Referred by own country
Francis Muthaura- Referred by own country
Mathieu Ngudjolo Chui- Referred by own country
Bosco Ntaganda- Referred by own country
Okot Odhiambo- Referred by own country
Dominic Ongwen- Referred by own country
Vincent Otti- Referred by own country
William Ruto- Referred by own country
Joshua Sang- Referred by own country
Abdullah Senussi- Referred by UN security Council