By Sunday Memba
“…Reckless outsourcing of investigations to NGOs with political agenda, a fixation with publicity over sound prosecutions and the overt use of the Court by European funders to maintain global influence puts the ICC’s long-term future at risk” – Toby Chadman
Recent resolutions by some African States to withdraw from the International Criminal Court are a signal to the international community of states to wake up and smell the coffee. Now, it is a case of locking the stable door after the horse has already bolted. This article sets out to discuss whether the court can still sustain its relationship with Africa.
Currently, three African countries have formally begun the process of withdrawal. Burundi was the first to do so. South Africa followed suit and sent its instrument of withdrawal to the Secretary General of the United Nations in October. Soon after, The Gambia (where the current prosecutor of the ICC Fatou Bensouda is a citizen) announced that they also could not sustain their relationship with the court any longer. Other African nations, like Kenya and Uganda, are also teetering on the brink of initiating withdrawal.
Why the withdrawals?
Considering the circumstances before the withdrawals would be a better answer than accepting the “reasons” the countries gave for their withdrawal. Normally, the statements issued by States would seek to justify their withdrawal than rather state the rationale behind the withdrawal. It would then be unwise to rely on the government pronouncements.
The government in Pretoria is considered one of the most progressive on human rights. It is one of the few countries in Africa where a lesbian or gay can carry that tag proudly without fear. Despite being heads and shoulders in the sphere of human rights, South Africa hosted Sudanese leader Omar Hassan al Bashir in June 2015 during an African Union Summit. Under the Rome statute, South Africa had an obligation to arrest anyone sought by the court. South Africa disobeyed an international warrant for his arrest, and even disobeyed a municipal court order requiring Omar’s arrest. Mr. Bashir is accused of war crimes, crimes against humanity and genocide. It is at this point in Pretoria that we must begin to search.
Apart from other things (good or bad) that one would identify The Gambia, massive human rights violations are one of them. Gambia’s president is a man who says what he means and means what he says. When he promised to slit the throats of all homosexuals in the Gambia, people thought it was a joke, until cases of disappearance arose. The Gambia rejected 78 of the 171 recommendations at the Universal Periodic Review, including removing restrictions on freedom of expression, ratifying the International Convention against enforced disappearance, and abolishing the death penalty. When the other states questioned this negative development, withdrawal from the ICC beckoned.
Criticisms of the court
Burundi President Pierre Nkurunziza is a man who loves power. After a struggle with the citizenry, he successfully ensured that he stayed longer in power. During this struggle for power, various violations of human rights occurred. During this time, Burundi had no intention of leaving the ICC. Suddenly, the ICC prosecutor announced that she would begin preliminary investigations on political violence in Burundi. The country reacted swiftly and began the process of leaving the ICC.
The withdrawals have not received a warm reception in human rights circles all over the world. Human Rights Watch, for instance, stated that Burundi had taken a major step backward because of its withdrawal from the jurisdiction of the court. The Gambia and South Africa too are the recipients of torrents of ridicule due to their withdrawals.
Robin Cook, the former British Secretary, once stated publicly, “the court was not set up to try Prime Ministers of the UK and presidents of the US”. Many political pundits in Africa claim that the ICC is a court of the Caucasians. They argue that the colonial period is back with velvet gloves. To date, no person from the Orient or the Occident has been charged or convicted of any offence despite many atrocities that are happening in these areas.
Three permanent member states – United States, China and Russia – of the United Nations Security Council are not bound by the International Criminal Court. Apart from these nations being non-members, they have used their veto power to block prosecutions in areas where justice is needed the most. Syria, for instance, is a beneficiary of the United States veto power to prevent arrests and prosecutions in the war torn country. Sudanese leader Al Bashir’s case was due to a referral by all the permanent members of the UN Security Council.
The main purpose of the ICC, inter alia, is to create a platform whereby perpetrators of crimes against humanity and war crimes are tried. Since the court came into operation in 2002, it has only convicted four individuals. Three of the convicts are from Senegal and Mali. Currently, the court is handling ten full-scale investigations; nine of these are in Africa, and one from the former Soviet Republic of Georgia. Although, massive human rights violations are prevalent in Africa, we cannot turn a blind eye to other atrocities committed by persons in other continents.
Permanent members of the UN Security Council have the power to refer cases to the ICC. A sincere truthful criticism of the court is founded on how the Permanent Members of the UN Security Council refer cases. Nations in good books with the permanent members go scot-free, while those who are defiant face the wrath of the court. It has always been the case of “our way or the highway”. Sri Lanka, for instance was not referred to the court despite massive crimes against humanity during the Sri Lankan Civil War.
The future of the court
The Hague-based court is at its adolescent stage. Perhaps it would be good enough if it made some wise moves before venturing into its adult stage. As the adage goes, the road to hell is paved with good intentions Time is ripe to ensure that the ten investigations produce some hope that remedies do exist in international criminal law. Trust would then come back to the court and moreover, it would warn any political leader of committing war crimes or crimes against humanity.
States worldwide should advocate for the abstinence of Russia, China and United States when referral of cases a done by the UN Security Council. One State should not participate in the affairs of other states until it can become a member of the Rome Statute. If these states continually take part in decision making at the ICC, then many nations, especially from Africa, shall refuse to be party to that Faustian pact.
Where there is smoke there is fire. Although South Africa, Burundi and The Gambia provide flimsy reasons for withdrawing from the court, there must be some seething cauldron of emotion not yet made public. Nearly half of the African States are against the court’s nature of dealing with African problems. Notably, thirty-four countries in Africa are parties to the ICC and it would not be good to see an en masse withdrawal.
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