Is Africa, ICC set to divorce?

Kenyan president Uhuru Kenyatta (centre) appears at the ICC in relation to the post-election violence that left at least 1,300 Kenyans dead in 2007. The court last year dropped the charges against Mr Kenyatta, citing difficulties in gathering evidence against him.

When former Congolese warlord Thomas Dyilo Lubanga was convicted by the International Criminal Court (ICC) for war crimes and was handed a 14-year prison sentence in July 2012, there were chants of jubilation and plaudits from the continent towards the international adjudication system: for he was the first person ever on the court’s most wanted list to be convicted.

The chants were, however, short-lived. Now, at least half of the continent wants to go out.

At the upcoming 27th African Union Summit in Kigali, Rwanda between July 10-18, high on the agenda is adoption of the motion to walkout en masse from the Hague-based court, which the continent’s leaders accuse of being a vestige of colonialism.

If it happens as expected, Africa’s strongmen pushing the idea will spend the rest of their lives chest-thumping, but above all, the move will mark the beginning of a new dawn in international relations. And similarly, if it does not happen, the failure will be another missed opportunity—not the first though—and public relations misadventure.

What it takes to quit
Procedurally, according to ICC’s regional outreach coordinator Maria Kamara, if a state party wishes to withdraw from the Statute, it must notify the UN Secretary General in writing. The withdrawal takes effect, at earliest, one year after the date of notification.

However, withdrawal by a state does not “remove any of its obligations that arose from the Statute while it was a party to it up to the date on which the withdrawal became effective.

The state is still under an obligation to cooperate with the Prosecutor and the court in connection with any criminal investigations and proceedings that commenced prior to the date on which the withdrawal became effective.”

Currently, the court has probes underway in Uganda, Ivory Coast, Libya, Sudan, DR Congo, Central African Republic, Uganda, Mali, Burundi, Nigeria, and Guinea.
Elsewhere, the court is looking at cases in Georgia, Afghanistan, Colombia, Ukraine, Iraq and Palestine.

Factual or fictional pullout?
Foreign Affairs permanent secretary James Mugume, in an interview, said this time, “the commitment” to pullout is “real” and mostly likely, African leaders meeting “will pass the motion.”

“It will be a very crucial meeting,” he said. “At the last summit, a committee [led by Ethiopian Foreign Affairs minister Tedros Ghebreyesus] was tasked to engage with the UN Security Council with discussions resolving around resetting the balance of the court.”

The committee was dispatched at the last AU Summit in the Ethiopian Capital of Addis Ababa in January. The committee, among others, was also to engage the 15-member UN Security Council, the world body’s most powerful organ, on the previous decision for deferral of the ICC, the double warrants against Sudan president Omar al-Bashir and proceedings against Kenya deputy president William Ruto in accordance with Article 16 of the Rome Statute.

“But when they went to New York [at the UN headquarters], they were treated with contempt and hence there was no meaningful discussions,” Mr Mugume added.

Thirty four African countries, led by Kenya [president Uhuru Kenyatta moved the motion] resolved to withdraw from the Rome Statute that established the ICC. Before pulling out, they, however, delegated an Open-Ended Committee of Foreign Affairs ministers to discuss the intention with the Security Council.

The committee held a meeting on April 11 in Addis Ababa, attended by representatives from, among others, South Africa, Uganda, Kenya, Somalia, Chad and Mozambique.

In its summary report, the committee resolved it will call for “withdrawal” from ICC unless three conditions are met, notably, amending the ICC’s Rome Statute to include immunity for sitting heads of state and high level officials, which Mr Mugume said is an international proclamation under law that must be protected.

The committee also indicated intention to meet again with the Security Council (In June) and also engage with the ICC’s Assembly of state parties (session slated for November).
So will the AU’s Peace and Security Council consider the committee’s draft on the ICC Action Plan and table recommendations for consideration at the head of state’s meet? Any ones guess is good.

Taking the first step
At the last Summit, president Kenyatta, while moving the “walkout” motion, implored fellow heads of state to endorse their commitment to the June 2014 Malabo Protocol, which called for the global standard for the immunity for heads of state to also apply to Africa. The motion was immediately supported by South Africa’s Jacob Zuma.

The Summit also resolved that the commitment to ICC be funnelled to African Court on Human Peoples’ Rights (ACHPR) based in Arusha to include international crimes as an African alternative to the Hague-based court.

The African court was established by Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, (the Protocol), which was adopted by under then Organisation of African Unity (OAU) in Burkina Faso in 1998.

The protocol eventually came into force in 2004 after it was ratified by at least 15 African countries. Fifteen other countries have since ratified the protocol— Algeria, Benin, Burkina Faso, Burundi, Cameroon , Chad, Cote d’Ivoire,Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, Sahrawi Arab Democratic Republic, South Africa, Senegal, Tanzania, Togo, Tunisia and Uganda.

The court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights and any other relevant human rights instrument ratified by the states concerned.

But as of February 2015, according to the court’s website, now fewer than seven party states had made declaration “recognising the competence of the court to receive cases from NGOs and individuals.” These include Tanzania, Burkina Faso, Rwanda, Malawi, Cote d’Ivoire, Ghana, and Mali—a fact which makes cutting ties with the ICC somewhat problematic.

The ICC-African problem
A day before President Museveni’s swearing-in ceremony on May 12, for which President Bashir was invited and duly attended, the ICC tendered a verbale note to Ugandan authorities reminding government “of their obligations, as a State Party, to cooperate with the immediate arrest and surrender of Mr Bashir to the court, pursuant to Article 89(1) of the Statute” in the event he set foot to Uganda.

President Bashir jetted in for the swearing-in and left shortly afterwards. His appearance was followed by President Museveni taking a jab at the court, describing it as a “bunch of useless people”, a move that angered Western diplomats to walk away from the event.

The court tendered another diplomatic protest note on May 12 to Ugandan authorities but alas! It equally went unresponded to. On May 17, the court tendered a request for submission to the government for a response by June 24 on the failure to arrest Gen Bashir.
Ambassador Mugume said “there is still time and government will respond accordingly.”

President Bashir is wanted on two counts of crimes against humanity and genocide of more than 300,000 deaths in Sudan’s Darfur region. The court issued warrants for him in 2009 and 2010 for the crimes, but since then, he has been circling the globe—to both ICC party and non-party states—each journey hitting a blow to the court, which has no enforcement mechanisms.

President Bashir, for example, on July 21 2010, visited Chad, a signatory to the court for three days, and was warmly embraced by the country’s President Idris Derby— another ICC critic and current AU chairman.

Despite calls from the EU and other international rights bodies, the Central African country declined to turn him in.

The only time walls nearly closed-in on him was in June 2015 during a visit to South Africa to attend the AU 25th Summit in Johannesburg.

A Johannesburg High Court judge issued interim orders stonewalling his exit pending hearing of the application of his arrest filed by the Southern African Litigation Centre, but African leaders attending the summit pressed President Jacob Zuma and consequently, Mr Bashir slipped out of the country via an airforce base.

The court’s chief prosecutor, Ms Fatou Bensouda, sometime in 2014, had announced a decision to shelve the Darfur investigation for lack of support from the Security Council, the UN body able to take coercive measures that could compel Bashir and co-defendants to face the court.

Ms Bensounda made the revelation barely a week after announcing a decision to drop all charges against Kenya’s president Uhuru Kenyatta, citing difficulties in gathering evidence against the accused.

President Kenyatta was indicted in 2011, before he became head of state, after the power-sharing deal in early 2008 - brokered by former UN Secretary General Kofi Annan - agreed that a local tribunal would be set up to prosecute those behind the violence in which close to 1,300 people died and forced 600,000 from their homes. Mr Annan later handed over the suspect’s names to ICC after attempts to institute the tribunal hit a snag.

While critics accuse the chief prosecutor of meddling-up the Kenyan case, there is a long standing conclusion that the government deliberately suffocated the case.

Blow by blow, the court’s credibility continues to stumble and its success is measured by the impact it makes within its jurisdiction. The court focuses on four major international crimes; war crimes, genocide, aggression and crimes against humanity.

The same African countries that make case referrals in most cases frustrate them. Ambassador Mugume, however, discounted this claim, saying “the court’s roles remain excellent but what they want is to drop the notion of trying sitting African heads of state.”

Indeed, Elise Keppler, an associate director of the International Justice Programme at the New York-based Human Rights Watch (HRW), said while AU in 2014 approved an expansion of the African Court to include prosecution of crimes currently handled by ICC; the protocol allows immunity for heads of state and other high-level officials from the court on charges of these crimes.

“While such immunity is allowed in some domestic legal systems, having it before international courts defeats the purpose of ensuring justice for the gravest crimes,” she noted. “The immunity provision creates a two-tiered system of justice that shields those at the top from the reach of the law, only reinforcing the importance of the ICC as the crucial court of last resort.”

What the walkout means?
Ms Keppler, further, added that even if the AU Summit were to vote for a “walkout”, withdrawal remains an independent decision of states that often requires parliamentary approval in each state “so an AU call for withdrawal does not mean withdrawal will happen.”

“Moreover, we continue to see that many African ICC state parties continue to support the ICC and are unlikely to withdraw even though they do not speak up to defend the court when it is attacked in Addis Ababa.”

ICC and Africa

The ICC is a permanent international court that prosecutes individuals accused of committing serious crimes at an international level.

The court was established 14 years ago but as its influence grew older, some world powers started viewing it with suspicion as a threat to national sovereignty.

Opposition to court is led by Africa’s notable rogue leaders; Zimbabwe’s Robert Mugabe, Equatorial Guinea’s Teodoro Obiang Nguema and Gambia’s Yahaya Jameh.

The Rome Statute, the ICC’s founding document, entered into force in 2002, inspired by the International Criminal Tribunals for Rwanda and the International Criminal Tribunal for the former Yugoslavia.

But Rwanda itself, which once suffered the horrors of genocide, President Kagame told journalists recently his country would not touch President Bashir when he attends the AU Summit scheduled for July.

Besides the everyday argument of sovereignty, questions still linger on why would some African leaders loathe the court they co-established? For example, in Uganda, Parliament ratified the ICC treaty in June 2002 and in 2003 [Uganda] made the first referral of rebel leader Joseph Kony and his five deputies under the Lord’s Resistance Movement [LRA], whose arrest warrants were issued in 2005.

The commencement of trial of president of the Ivory Coast, Laurent Gbagbo, in 2012 increased the loathing for the court. But, overlooked by critics is the fact that many ICC investigations have been referred by African governments.

The signatories
The court has 122 (34 African) party states of the 190 UN member countries. Big world powers such as China and India are not party to the Court.

Others like Russia and United States are signatories but remained adamant to ratify the statute.
State parties are legally obligated to co-operate with the court when it requires, such as in arresting and transferring indicted persons or providing access to evidence and witnesses.

However, the court is vulnerable to member states that violate the Rome Statute, which is silent on any ramifications for members who breach the law.

In the paper, “Is the ICC’s exclusively African case dockets a legitimate and appropriate intervention or an unfair targeting of Africans?” Mr Abdul Tejan-Cole, director of Open Society Initiative for West Africa, argued that the court’s complementarity role in international justice demonstrates its indispensability.

“The court’s focus on Africa in its first decade was not deliberate but it was justifiable and required. Through complementarity, the court’s intervention has been imperative towards ending impunity as States have either been unable or unwilling to take national measures.”

He argued that while states be applauded for recognising this and taking remedial efforts through self-referrals, it is their failure to handle own issues that has led to ICC’s involvement.

In the likely event that African countries succeed in pulling out, Ms Penny Mbabazi, a research analyst at the Foundation for Human Rights Initiative (FHRI), said it will be the victims that will suffer.

But in the meantime, even the state party that has applied to withdraw procedurally still has to co-operate with the court in ongoing investigations, as well as to continue its financial subscription to the court.