04 Oct 2013

Africa's animosity to ICC goes beyond justice, into politics

Written by  Dan Kuwali

No. 275: Africa's animosity to ICC goes beyond justice, into politics / Dan Kuwali / Business Day
4 October 2013

Kenya's parliament voted to withdraw from the International Criminal Court (ICC) last month, raising the prospect of a sovereign state removing itself from the court's jurisdiction for the first time. Nairobi's intended action may lead to the irretrievable breakdown of the relationship between the ICC and Africa, especially if other African governments follow suit.

The continuing prosecution of Kenya's sitting president, Uhuru Kenyatta, and his deputy, William Ruto, by the ICC has clearly worsened the court's turbulent relationship with Africa. There is a perception that the ICC is a western court employed to try African crimes, given its apparent obsession with prosecuting Africans and portraying Africa as the theatre of atrocity crimes.

This "Africanisation" of prosecutions seems to arise from geopolitical pressures for the court to avoid confrontation with major powers and its non-African funders. The ICC has turned a blind eye to serious crimes in other parts of the world — such as Chechnya, Palestine and Sri Lanka — only hunting Africans as soft targets.

The speed with which the United Nations (UN) Security Council referred the situations in Sudan's Darfur region in 2009 and Libya in 2011 to the court — but not, so far, Syria where more than 100,000 people have died — supports the suggestion that there is an anti-African bias at work here.

Criticism that the ICC jeopardises political settlements to make and keep peace in its pursuit of justice was recently raised at a public dialogue held by the Centre for Conflict Resolution in Cape Town to discuss the court's role on the continent.

For example, despite the concerns raised by the African Union (AU), the ICC proceeded to issue an arrest warrant for the Sudanese president, Omar al-Bashir, in March 2009, a move which was vehemently criticised by the continental body.

Sudan is not a member of the court and three of the five members of the UN Security Council — China, Russia and the US — are themselves not members of the ICC either.

The selection of cases by the court — particularly under its previous chief prosecutor, the Argentinian lawyer Luis Moreno Ocampo (2003-12) — has also tended to favour "victor's justice". For instance, in the case of Côte d'Ivoire, the vanquished presidential contender, Laurent Gbagbo, is now in the dock, while the victor in the violent aftermath of the 2010 national poll there, Alassane Ouatarra, remains free, despite his fighters also being involved in atrocities.

In all the cases before the ICC, the prosecutor has focused on alleged abuses by rebel fighters to the exclusion of those reportedly committed by government troops.

The other problem is whether trying suspects in Europe — at The Hague in the Netherlands — can deter potential perpetrators in Africa. Justice delivered where the evidence is, and where the witnesses and victims reside, has a cathartic effect, promoting healing and post-conflict reconciliation more effectively than justice delivered in the remote confines of the court's European dock.

However, the ICC's new chief prosecutor since June last year, the Gambian jurist Fatou Bensouda, contends that the court is protecting Africans rather than "targeting" them, since all the victims are Africans. She maintains that her choice of cases is based on the relative gravity of abuses and that the crimes committed in Africa are among the world's most serious. She also argues that the majority of cases — such as in the Democratic Republic of Congo, Central African Republic, Mali, and Uganda — have been referred by African states themselves, and that she is also analysing situations outside the continent.

As to why the ICC has only focused on rebels and not government troops, she contends that only particularly serious cases can be considered by the court, given its budgetary constraints. ICC supporters also argue that national legal systems in Africa are weak, which has allowed the court to assert its jurisdiction on the continent more effectively than elsewhere.

The animosity directed towards the ICC by the AU is partly inspired by the UN Security Council turning a deaf ear to its request in 2009 to defer the al-Bashir indictment. The continental body's official position is not to co-operate with the court in the arrest and surrender of Sudan's president. The AU has also rejected the ICC's bid to establish a liaison office at its headquarters in Addis Ababa. The AU has highlighted "the need for international justice to be conducted in a transparent and fair manner, in order to avoid any perception of double standards, in conformity with the principles of international law". However, the continental body has made little or no mention of the interests of victims in its public arguments against the court.

Perceptions of the ICC in Africa have been damaged by insufficient efforts on the part of the court, especially by Ocampo, to clarify the basis for its prosecutions on the continent, which led the AU to conclude that the ICC was handing out "Ocampo's justice" in Africa.

The "Bensouda effect" of an African jurist at the court's helm has not yet eroded the acrimony between the ICC and the continental body. The pressing need for some kind of rapprochement between the two bodies has been highlighted by Kenya's plan to withdraw from the court, although such a move would have no bearing on the cases against Kenyatta and Ruto since it could not be applied retroactively.

One way to improve relations might be for the AU to allow the court to open an African liaison office in Addis Ababa, which could help to demystify the ICC's work on the continent and keep open the lines of communication between the two institutions.

The court should extricate itself from the entanglements of global power politics and demonstrate its independence in order to achieve reconciliation with the AU and its 54 member states, 34 of which are members of the ICC. The court also needs to show genuine support for the principle of complementarity by assisting African states in building domestic initiatives to prosecute perpetrators of international crimes in national courts. If African governments make concerted efforts to facilitate the arrest, extradition, and prosecution of their own, they can force the ICC to focus elsewhere.

The crimes under the jurisdiction of the court often emanate from internal conflicts in which perpetrators may also be victims.

In this context, judicial proceedings, which are adversarial in nature and aim to declare guilt or innocence, will often fail to settle questions pertaining to the root causes of conflicts in which neither side is wholly innocent nor entirely guilty.

To remedy this problem, more attention should be paid to the factors that trigger the crimes in the first place.

The causes of the atrocities that lead to ICC prosecutions are generally political in nature and require political, rather than judicial, solutions. Since the prevention of atrocities may often be regarded as more worthwhile than penalisation of perpetrators after the fact, the international community should help Africa to address the roots of the political, religious, ethnic, social, and economic problems that spark the conflicts, which lead to the crimes being investigated by the ICC.

Meanwhile, if African leaders do not want the ICC to represent victims and pursue perpetrators of crimes on the continent, they should stop committing, or apparently supporting the commission of, such crimes.

Kuwali is a senior researcher at the Centre for Conflict Resolution, Cape Town.

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