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ICC’s biggest challenge in reversing African mass withdrawal

At the last African Union summit, the continental organization called for the mass withdrawal of member states from the International Criminal Court (ICC). However, the resolution was non-binding, with a handful of countries opposing a withdrawal. Now, Burundi is the only country that has decided to withdraw, accusing the ICC of undermining their sovereignty and unfairly targeting Africans. The ICC denies the allegation, insisting it is pursuing justice for victims of war crimes in Africa. After being discussed in several previous summits, this was a huge announcement showing how frustrated the AU was with the international court. But the debate itself showed how divisive the whole issue is, writes Solomon Goshu.

Predicated on the experience of international war crime tribunals concerning Kosovo and Rwanda, the International Criminal Court (ICC) was sprung into the global scene following the signature of the controversial Rome Statute, the international treaty establishing the ICC, in 1998. From the get go the accord was point of controversy and suspicion among the developed and developing world. Granted at the end of the day, a total of 120 countries became initial signatories to the statue from both camps; but the details of the documents, which is a source of jurisdictional mandate of the court, was far from being agreeable.

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This disagreement mostly had to do with the crimes which were supposed to be adjudicated by the court, which, according to the final draft of document, are limited to crimes of genocide, crimes against humanity, war crimes and crimes of aggression. This basic definition of crimes was too reductionist, according to those in the global south, and argued for the inclusion of other serious crimes like colonial domination, other forms of alien domination like apartheid, recruitment, use and financing of mercenaries, drug trafficking, and willfully damaging the environment. Most in the developed hemisphere opposed these omissions on the grounds that such broad definitions would make adjudication of crimes difficult. Needless to say, those in the south accused the developed countries of wanting not to submit themselves to broader definitions of crimes not to risk possible indictment of their leaders.

Either way, the statute was signed and the Court was established and to date some 34 African countries have signed the Rome Statute allowing jurisdictional access to crimes committed in their territories. Few years later, in 2002, the Office of The Prosecutor (OTP), the largest and most highly staffed entity of ICC, came into existence under its first prosecutor the Argentinean Luise Moreno-Ocampo. The man as many say hailed from the humble professional experience as assistant prosecutor in his country with virtually no international legal track record until he took the challenging job of organizing the nascent OTP at the ICC. Commentators claim that Ocampo’s personal perspectives and international law and political philosophies started to rub on the office from the very start.

Now Ocampo has gone and the OTP has gained a new prosecutor, Fatou Bensouda from The Gambia. Nevertheless, the past few years have also been the toughest for the credibility of the 15-year-old office due to gradually strained relationship it has developed with Africa. The push by African countries and the African Union (AU) for mass withdrawal from the Rome Statute on the basis of discriminatory and inappropriate focus of the prosecutor’s office on Africa seems to be it biggest challenge to date.

The crux of the matter is that out of the 18 countries which are under the radar of the OTP at present, eight are under serious and full-fledged investigations while the other ten are under preliminary or pre-preliminary investigations, with low chance of translating into full-blown investigation. The eight under full investigation are all in Africa: the Democratic Republic of Congo (DRC), Central African Republic (CAR), Libya, Sudan, Kenya, Uganda, Mali and Côte d’Ivoire. This is nothing but undue targeting of the content, scholars and politicians from Africa argue. Moreover, as a result of that, African countries are flirting with the idea of boycotting the ICC altogether.

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However, the relationship between the ICC and the African countries has started rather smoothly in the earlier years of ICC including the process of its establishment in 1998. The ICC came into force in 2002. Of the Court’s 124 member states, 34 are African—the largest regional membership outside of Europe. Seventeen African states were among the first sixty that ratified the Rome Statute, thus contributing to the achievement of the threshold necessary for the statute to become effective. In fact, Senegal was the first country to ratify the Rome Statute in 1999.

Massive withdrawal reversed?

In the past few years, the Court was accused to have biasedly targeted African nations, creating a sense of discontent and mistrust that gave rise to actions to withdraw from the ICC. This mobilization not only took place within individual countries but was also firmly upheld by the AU.

These sentiments are strengthened by the fact that only Africans are prosecuted so far by the ICC. Nine out of the 10 cases being investigated by the ICC involve alleged crimes in Africa. Indeed, the ICC has focused too narrowly on Africa. As a result, some Africans regard ICC as racist or imperialist. The perception of the unequal application of the Rome Statute 15 years after its adoption is severely eroding trust in the Court and, consequently, in the international criminal justice project. In light of these statistical data, a call for African countries to withdraw from the ICC in recent times is not surprising for many independent observers.

The countries advocating for a withdrawal have also portrayed the institution as an instrument of neocolonialism being used against Africa. A number of African leaders have pushed the narrative that the ICC is driven by Western neocolonialism and is biased against Africans.

Some African countries have been especially critical of the ICC for pursuing heads of state. The AU discouraged the prosecution of heads of state by the ICC. Some lawyers also argue that the rule of customary international law recognizes immunity of heads of state. Some experts argue that the majority of African countries also wanted the meaning of immunity and impunity amended in the Rome Statute.

Sudanese President Omar al-Bashir has been wanted by the Court since 2009 for allegedly orchestrating atrocities in Darfur. The ICC also caused uproar among some African nations by indicting Kenyan president Uhuru Kenyatta on charges of crimes against humanity for 2007 post-election violence in which more than 1,000 died. In 2011, ICC prosecutor Luis Moreno Ocampo indicted Uhuru Kenyatta, who later became Kenya’s president in 2013, and others on charges of promoting ethnic violence after the 2007 presidential elections. The case collapsed because of what the ICC prosecutor called lack of cooperation by Kenya’s government.

The cases of President Omar Al-Bashir, and President Uhuru Kenyatta and Vice President William Ruto, indicted at the ICC for crimes against humanity and, the former, also for genocide, marked a turning point for Africa’s continental engagement with the ICC. In 2009, the ICC prosecutor issued an arrest warrant for President al-Bashir of Sudan, the first time the court indicted a sitting head of state.

In June 2009 the AU resolved that it would not cooperate with the Court’s demands to hand over Sudanese President Omar al-Bashir to be tried for alleged crimes against humanity in Darfur.

Solomon Ayele Dersso (PhD) is currently serving as a Commissioner at the African Commission on Human and Peoples’ Rights, the premier human rights body of the African Union (AU). He is also tasked with the responsibility of looking into human rights in conflict situations, and transitional justice and human rights for the Commission.

Solomon argues that in a situation of an ongoing conflict, it is not wise to initiate a prosecution against a sitting head of state. “Ocampo requested an arrest warrant against President al-Bashir while the AU has been in the middle of a peace negotiation trying to resolve the crisis in Darfur. The fundamental issue has to do with the question of whether or not in initiating that kind of prosecution, the ICC is also limiting the policy space of national actors for them to come together and deliberate on the course of political and legal actions that needs to be taken in order to resolve a particular crisis and put the country back to stability and order. Those are the issues that fundamentally affect the relationship between ICC and AU,” he elaborated.

One of the continuing cases of disagreement between the two has to do with the arrest of President Bashir of Sudan.  Solomon said, “Let us say that he travels to Ethiopia and get arrested here in Addis. Then the question is what happens to Sudan after that. Who is going to take responsibility if Sudan basically disintegrates and chaos erupts? Those are the kinds of issues that are not always factored in.”

Solomon states that under international law it is now accepted that even sitting heads of state can be held accountable. “The how is not adequately agreed upon. In all the cases where heads of states have been prosecuted, literally it happened after all of the heads of states have exited the scene of power. For instance, this was the case with Laurent Gbagbo of Côte d’Ivoire and Charles Taylor of Liberia under the framework of ICC. Their case was successfully prosecuted. But for a sitting head of state, there is no clarity on how effectively you can do it in a way that doesn’t cause more harm to the society,” he holds.

Despite African countries claim that they are unfairly targeted by the ICC, most of the African cases, which have been investigated by the ICC since 2002, were referred to the Court by the very same nation where the abuses occurred (so-called self-referrals). For instance, in June 2002, Uganda ratified the Rome Statute, and two years later became the first country to refer a case to the Court, requesting that the Lord’s Resistance Army (LRA) be tried for war crimes.

Although all open cases involve Africa, half of them (Central African Republic, Democratic Republic of the Congo, Mali, and Uganda) were requested by the leaders of those countries. The Libya and Sudan cases were initiated by the UN Security Council and supported by the African representatives on the Council at the time – Gabon, Nigeria, and South Africa in the Libyan case, and Algeria, Benin, and Tanzania in the Sudan case. Kenya and Côte d’Ivoire are the only cases initiated by the ICC itself.

At the Rome Conference, ministers from the Southern African Development Community demanded that an independent prosecutor within the ICC should have the power to initiate investigations and not – as was favored by Western countries – just the UN Security Council. In the end, the African position prevailed, and two avenues for initiating investigations were adopted: referral by a state or at the initiative of the Court’s Chief Prosecutor.

With this background, the AU adopted a non-binding resolution calling for African countries to abandon the ICC at its annual summit in January 2017. Individual states can act independently of it, disregarding the AU’s collective stance. Largely, this was taken as a sign of a collective vote of no confidence for the ICC on behalf of Africa.

However, following the release of the AU’s "ICC withdrawal strategy", Nigeria, Senegal, and Cape Verde entered formal reservations to the decision adopted by the heads of state. Liberia more specifically entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it. These countries, together with another dozen, among which most notably are Botswana and Senegal, formed the group of "ICC supporters", voicing their concerns against withdrawal.

Moreover, the AU resolution came after moves by the governments of Burundi, The Gambia, and South Africa to withdraw from the ICC became public in 2016. In October 2016, Burundi and South Africa announced they were quitting the ICC. They have accused the ICC of undermining their sovereignty and unfairly targeting Africans.

South Africa refused, in June 2015, to arrest Sudanese President Omar al-Bashir while he was in the country to attend an African Union summit. The ICC had previously issued two warrants of arrest against him for crimes against humanity and genocide. Under the Rome statute, the founding treaty of the ICC, countries have a legal obligation to arrest anyone sought by the tribunal. The decision not to cooperate with the ICC was justified by South African authorities claiming that al-Bashir had immunity as the head of a member state.

In November 2016, 31 NGOs presented a letter to African delegates at the ICC’s Assembly of States Parties urging them to address their grievances through available channels rather than leave the Court. This followed some 130 community-based organizations across Africa petitioning African foreign ministers to reject proposals to withdraw from the Court.

Despite the widespread fear, a mass exodus from the ICC has yet to materialize. Moreover, the voices of countries opposed to withdrawal have grown, including Burkina Faso, Botswana, Ghana, Liberia, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania, and Zambia.

Similarly, South Africa’s High Court then ruled in February 2017 against the government’s decision to withdraw, finding it inconsistent with the country’s constitutional principles and in violation of established procedures as Parliament was not duly consulted. Pursuant to the ruling, the High Court ordered the presidency to withdraw its order. Accordingly, the South African government reversed its position and notified UN Secretary General António Guterres that it no longer intended to withdraw on March 7.

Similarly, shortly after taking office in January 2017, The Gambia’s democratically elected president, Adama Barrow, reversed his predecessor’s order to withdraw from the Court. This leaves Burundi as the only other African country that is proceeding with plans to exit the ICC. Of course, Kenya’s government already has signaled that it may withdraw, after repeatedly arguing that the court is biased against Africans. Namibia is also considering withdrawal. While the fear of African exodus from the ICC is now partially eased with the reversals of withdrawals from The Gambia and South Africa, the issue is not conclusively resolved.

It is all about impunity

The key rationale for the Court was to enhance accountability and foster stability, regardless of the investigated party. Based on these values, as expected, the ICC denies the allegation that it is unfairly targeting Africa, insisting it is pursuing justice for victims of war crimes in Africa.

In some quarters, it is argued that the ICC does not arbitrarily target African leaders. They note that the ICC prosecutor generally intervenes in the “gravest,” or most violent, conflicts in the world over which it has jurisdiction.

On the other hand, there are many justifications as to why the ICC has not brought cases against perpetrators in non-African countries. One justification is that the Security Council has not used its power to refer situations like Syria to the ICC, because some of the Permanent Members have used their veto to block such action.

The ICC becomes more effective in achieving its promise as a truly “world court” by investigating alleged crimes committed on all continents, it will face ever greater challenges. These must be met by the court and its state party custodians if international justice is to be truly universal, effective and impartial.

Motivated by these aspirations, in 2016 the Office of the Prosecutor opened an investigation into the situation in Georgia including international crimes allegedly committed by Russian armed forces. This followed the opening of a preliminary examination into international crimes allegedly committed in Palestine by both Palestinian and Israeli Defense Forces in January 2015. The ICC is also reportedly very close to opening an investigation into crimes under international law committed in Afghanistan. Crucially, these investigations will move the ICC’s reach firmly beyond the African continent, and will very likely meet significant political and logistical challenges as well as backlash from the powerful states whose nationals will be investigated.

For Solomon, with respect to the operation the ICC and the controversies surrounding the ICC, part of the issue relates to accountability. “Ultimately, the question is not whether or not we need accountability. The question is how you go implement accountability. We haven’t yet adequately figured out how that is going to be implemented. The normative position is one that says leaders who are engaged in orchestrating perpetration of serious violations of human rights and humanitarian law need to be held accountable,” he said. 

Solomon also pointed out that in June 2014, in Malabo, Equatorial Guinea the AU adopted a protocol that provides jurisdiction for prosecuting international crimes by the African Court basically agreeing with the normative position of the Rome Statute.  “In terms of the implementation and the strategy that you follow for the implementation of these agenda items, there is huge difference between African member states and the AU as an inter-governmental body and the ICC,” he said.

ICC as a court of “last resort”

It is also important to note that the ICC is a court of last resort, which means that it will investigate and prosecute international crimes only when domestic courts are unable or unwilling to do so. In fact, the language of the Statute states that the ICC is a jurisdiction of “last resort” that would complement and not replace national courts.

Part of the AU resolution also said the AU would hold talks with the UN Security Council to push for the ICC to be reformed. The resolution also calls for African countries to continue pushing for reforms of the court.

Withdrawal advocates cite the African Court on Human and People’s Rights as a regional alternative to the ICC. But the treaty establishing the regional court was adopted in 1998. It subsequently took 16 years to be finally ratified. Only 30 African countries are members, and just six of those accept its jurisdiction to receive complaints from individual citizens. Furthermore, it grants immunity to heads of state and senior government officials, a provision that many say negates its primary mission to combat impunity and further justice and accountability.

Experts suggest that the African countries strengthen their own judicial mechanisms and expand the jurisdiction of the African court of justice and human rights. For human rights activists, many countries of the continent have weak judicial systems.

“Central to any effective accountability and transparency is the kind of measures, processes, and mechanisms that you are able to build at the national level. Even with the framework of the Rome Statute establishing the ICC, primacy is given to national processes and systems. It is preeminently important that a lot of investment is put into what happens at the national level. This has to do not only with respect to ordinary governance and accountability processes but also those relating to international peace and security issues,” Solomon highlights.

“I am of the view that when we engage in international justice processes, it is important that we engage in such a way that the national system is also effectively reformed. ICC for its activities and operations to succeed obviously depends on what happens at the national level. If ICC operates in such a way that it is supported and complemented by effective transitional processes at the national level, then we can imagine the possibility of ICC delivering effectively for the justice expectation of people,” Solomon explains.

He also reveals that the AU at the moment is in the process of articulating its transitional justice policy which puts premium on addressing these fundamental issues at the national level and meeting the justice and security expectations of victims and affected communities.   

The AU engaged in talks with the UN Security Council to push for the reform of the ICC. In the context of reforming the ICC, the top priority seems to be addressing the political nature of the UN Security Council’s exercise of its power in referring (or not) cases to the Prosecutor of the ICC. These states are advised to actively pressure the Security Council to refer situations to the ICC, particularly those likely to be vetoed solely for reasons of realpolitik.

This is another illustration of why an amendment to the Rome Statute by removing veto power is a timely initiation. It would make the Court truly independent and able to investigate where it’s needed, rather than where it’s politically convenient. In addition, because the United States, China, India, and Russia have all declined to ratify the Rome Statute, giving these countries a veto power over the affairs of others is extremely unjust.

Many political commentators contend that African states’ concerns remain formally valid and must be addressed at the appropriate level so to reduce the perceived or real shortcomings of the international justice system while potentially avoiding its dissolution.

Ed.’s Note: Asrat Seyoum of The Reporter has contributed to this story.