Africa and the International Criminal Court: Uneasy Lies the Head

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The International Criminal Court  (ICC) is a “permanent tribunal created to prosecute individuals for genocidecrimes against humanitywar crimes, and the crimes of aggression.”  Its jurisdiction covers “the most serious crimes of concern to the international community as a whole (Preamble 2) and in cases where national trials would not occur or would be ineffective (Preamble 3).”   The nations of the world found it necessary to create the ICC as they were “conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, affirming that the most serious crimes of concern to the international community as a whole must not go unpunished. Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole.”

The ICC complements national criminal jurisdiction and does not replace it. The words in the Preamble make it clear that “it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes. . .”

 The Court was also not created for “race hunting” as the Kenyan President recently alleged.  While it is true that the majority of the cases before the ICC are African, it must be clear that these cases were referred to the Court by the African governments themselves. What should be of concern is how many of the countries that refer cases lack functional, capable and transparent institutions and independent judiciaries and are African countries. 

The ICC does not solicit cases despite what many may believe. It is actually the court of last resort. Cases are referred through State parties (that is member states who have signed on to the treaty) in accordance with Article 14 of the Rome Statute or through referral by the Security Council acting under Chapter VII of the Charter of the UN. The Office of the Prosecutor can also initiate an investigation upon complaints brought to it by individuals and organizations. The Office of the Prosecutor has conducted or is currently conducting investigation in Honduras, Georgia, Republic of Korea, Palestine, and Afghanistan in addition to several African countries. To date Uganda, Mali, Democratic Republic of the Congo and the Central African Republic have referred situations occurring or have occurred in their countries to the ICC.

Those that accuse the Court of targeting Africa conveniently forget the composition of the ICC’s 18 judges which give testament to the global nature of the Court.  Five of the judges are African as well as the vice president, Sanji Mmasenono Monageng, a Botswana national. The Court’s Chief Prosecutor, Fatou Bensouda, who exerts influence over which cases are selected, is a citizen of Gambia.  

Article 17 of the Rome Statute states that “the Court shall determine a case is admissible where the case is being investigated or presented by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” It is important to understand that while some African leaders are now vilifying the ICC, truly capable, functional, and transparent countries are not among them.  In his recent op-ed piece in the New York Times, Archbishop Tutu explains that:

The African focus of the court should not be seen as an indictment of its neutrality but of

the quality of leadership and democracy in many African countries. . . As Africa begins

to find its voice in world affairs, it must strengthen its commitment to the rule of law,

not undermine it. These principles are part of our global moral and legal responsibility,

not items from a menu we can choose only when it suits us.. . . far from a fight between Africa and the West, this is a fight within Africa, for its soul.

The Kenyan president’s recent outburst that the court is “race hunting . . . and performs on the cue of European and American government against the sovereignty of African states “ disregards and mocks the 1,000 lives lost and property destroyed by the Kenyan post-election violence. Is it the right of a sovereign country on any continent to give impunity to those who have brought destruction on its people? The ICC stepped in when Kenya, despite its promise and presidential announcement to create a special court to investigate the violence, refused to do so.  September 30, 2007 (the deadline set by the ICC Prosecutor Luis Moreno Ocampo) passed with no action by the Kenyan government.  Because of its complementary nature to national jurisdiction, the ICC only intervenes when a State is unable and unwilling, which clearly Kenya has shown itself to be.

Some African leaders have conveniently forgotten that it was Kenya that referred the election violence to the ICC and not the European or American government.  The United States is not a signatory to the ICC and cannot refer cases to it (although it is a member of the Security Council and can do so as a body). At the recent meeting of the AU, some have decided to protect those who violate the trust of their own people by calling for a withdrawal from the ICC. Instead of addressing fundamental issues that hamper the growth of the continent, their annual meet, greet and eat gala has on the forefront of their agenda ways to shield each other from prosecution.  “Uneasy lies the head that wears the crown” and our leaders’ heads are wobbly indeed.

Archbishop Tutu calls on Africans to resist the call to withdraw from the ICC:

The continent has suffered the consequences of unaccountable governance for too long to disown the protections offered by the I.C.C. . . . Those leaders seeking to skirt the court are effectively looking for a license to . . . oppress their own people without consequence. They believe the interests of the people should not stand in the way of their ambitions of wealth . . . that being held to account by the I.C.C. interferes with their ability to achieve these ambitions. . . .

Africans must see the ICC as instrument of justice for all and not get caught in their leaders’ game of blaming everyone but themselves for the crimes they perpetrate on their own citizens. The International Criminal Court is the world’s court, mandated to mete out prosecution for “the dead cannot cry out for justice; it is the duty of the living to do so for them.” We must resist the urge to fall back on old excuses of colonialism and racism and strive for justice and human dignity.  “It is in justice that the ordering of society is centered” writes Aristotle and this ordering must be our goal and this fight is one we must win.

References

Rome Statute of the International Criminal Court; Tutu, Desmond.(2013, October 11)  “In Africa, Seeking A License To Kill.”  New York Times; BBC News  “African Union Accuses the ICC of “hunting” Africans” (May 27, 2013)

Jackie Sayegh is a Liberian.  She can be reached at [email protected] / 0888495916

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