AU motion to quit ICC left in limbo

AU heads of state are against the idea of quitting en mass preferring that withdrawals from the ICC are done at an individual country level. COURTESY PHOTO.

What you need to know:

  • Individual withdrawal. Debate on the motion to quit ICC was not on the agenda at the just concluded 28th AU summit, nonetheless it somehow still came up and was discussed on the sidelines where heads of states adopted strategy for individual pull out of any country but not en mass as it was widely expected, writes Frederic Musisi.

All eyes were on Addis Ababa, Ethiopia, early this week where Africa’s political executives were meeting for the AU summit with a plateful, including making a grand pronouncement about their position on ICC, which although was not on the main agenda.
Diplomatic sources at the meeting told Sunday Monitor, like has been at previous summits, deliberations on the motion “went in circles almost to no where” until the matter was put to rest but with open bargain on a strategy for individual but not connective withdrawal from the Rome Statute from which ICC was curved.
Had it happened, the collective withdrawal of the now 55-member [following the re-admission of Moroco] continental body from the Rome Statute which came into force 15 years ago, was to shatter the court out of whose 122 country membership, 34 are African.
World powers such as China and India are not party to the Court. Others such as Russia and US are signatories to the statute but have since dragged cold feet to ratify it.
In Africa, rogue regimes accuse the court of focusing exclusively on African leaders and some leaders started pushing for a mass exodus since 2012 angered by the commencement of trial of former Ivory Coast president Laurent Gbagbo adding to the bad blood that ensued two years earlier when it issued indictments for Sudanese president Omar-al-Bashir for two counts of crimes against humanity and genocide of more than 300,000 deaths in Sudan’s Darfur region two years earlier.
That notwithstanding, like at the last summit in Kigali, Rwanda in July last year, sources say discussions on the matter were acrimonious; being strongly opposed by the 14-member Ecowas.
It was the former Gambian strongman Yahayah Jammeh, who was pushed out of power a week to the summit in Addis Ababa who was opposed to the court and had even announced his government’s withdrawal last June.
Still notwithstanding the agreement on individual withdrawal from the Rome Statute, Uganda’s Foreign Affairs minister Sam Kutesa, told journalists on Friday in Kampala that the heads of state agreed “collectively” to funnel all efforts, including scaling up funding to the African Court on Human Peoples’ Rights based in Arusha.
“I don’t think we made a mistake joining ICC because at the time we were looking for an institution that could dispense justice but the court has turned out to be inefficient,” he said. He was briefing the media about resolutions from the AU summit.
The African Court has been there for sometime, Mr Kutesa said, “but did not have criminal jurisdiction so now we want to empower it”.
“ICC is a member states’ organ where countries are free to join or withdrawal at will,” he said. “The strategy discussed by the heads of state was hence not to withdraw collectively but individually; but most importantly to empower the African court.”
Reminiscing on the one year (2015) he served as president of the 69th session of the UN General Assembly, Mr Kutesa said since inception it has only finalised four cases in the 15 years of existence on a budget of Shs639m ($180m). “Isn’t that being inefficient?”

ICC’s headache
Procedurally, if a state party wishes to withdraw from the Rome 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 and Mali, Burundi, Nigeria and Guinea. Elsewhere the court is looking at cases in Georgia, Afghanistan, Colombia, Ukraine, Iraq and Palestine.
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 LRA, whose arrest warrants were issued in 2005.
However, one of the main challenges the court is grappling with is that it has to literally beg for assistance from member countries to cooperate on every case like has before unsuccessfully begged Uganda and South Africa to arrest president Bashir who was indicted.
Secondly the court lacks an implementing organ for its orders, like enforcing arrest warrants, and has to rely on its member states.
The ICC’s existence or knowing that it can bite any time for the last 15 years has been viewed as the single–most tool of deterrence to African leaders’ absolute rule. The court’s mission is to prosecute perpetrators of atrocities when a country is unwilling or unable to prosecute them itself.
ICC focuses on four major international crimes; war crimes, genocide, aggression and crimes against humanity.
But even with the empowerment of the African Court to dispense justice as African leaders desire, some analysts have said it would face similar problems like the ICC besides taking another decade or so to mature.
Leaders at previous AU summits had resolved that commitment to ICC be funneled to African Court on Human Peoples’ Rights 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 under the then 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.” The seven include Tanzania, Burkina Faso, Rwanda, Malawi, Cote d’Ivoire, Ghana, and Mali - a fact which makes cutting ties with the ICC somewhat problematic.
The associate director for International Justice Programme at the Washington-based Human Rights Watch, Elise Keppler, says: “In any event, the strategy itself – based on a draft we have seen (attached) is essentially a non-strategy for withdrawal. The purported strategy makes few concrete recommendations for action and actually notes that mass withdrawal is not a concept recognised under international law.
“The purported strategy ... largely just rehashes previous AU calls for amendments to the Rome Statute, along with Security Council reform. No specific timelines of further action are offered or agreed to,” he says.

Mr Museveni: Uganda, under his regime referred LRA’s Joseph Kony and other leaders to ICC but he has turned into a strong critic, accusing the court of disrespecting African leaders.

Yahaya Jammeh: Until he was disposed as The Gambian strongman had vowed to drag his country out of the ‘fascist court’, whose interest, he said was persecuting African leaders.

Jacob Zuma: His government has been working on a withdrawal but he has been frustrated by the opposition, human rights organisations and civil society.

“I don’t think we made a mistake joining ICC because at the time we were looking for an institution that could dispense justice but the court has turned out to be inefficient,”
Mr Sam Kutesa Uganda’s Foreign Affairs minister