After 10 years of the ICC, should Africa celebrate?
IT IS 10 years since the International Criminal Court (ICC) started its work, with most of its supporters lauding it as a necessary and convenient forum to prosecute perpetrators of heinous crimes.
Its proponents then and today have included many Africans and African states. In fact, of the 121 countries that are parties to the Rome Statute, 33 are African states, 18 are Asia-Pacific, 18 are from Eastern Europe, 27 from Latin America and Caribbean states, and 25 from Western Europe and other states.
The Rome Statute is the international criminal law treaty that established the ICC as a permanent international criminal court, defined international gravest crimes and laid out the court’s rules of procedure.
Most of the proponents of the ICC had moral, political or legal justifications for advocating for a permanent court with a clear mandate to try perpetrators of atrocities — especially genocide, crimes against humanity, war crimes and aggression.
The ICC was seen as the universal remedy to runaway impunity, in particular where states were unable or unwilling to prosecute international crimes. Also, Africa would be an active player instead of a lazy bystander.
After 10 years, two questions are critical. Is Africa, like the rest of the world, celebrating with the ICC as it marks its anniversary? And has Africa’s commitment to international justice and an end to impunity waned?
The answers to these questions are diverse.
To the optimists, Africa is celebrating with the rest of the world, mainly for three reasons.
First, ICC prosecutor Fatou Bensouda is this week visiting South Africa and Kenya. A Gambian citizen, she was unanimously elected to her current role 10 months ago. She was nominated and supported by the African Union as the sole African candidate for the position, after having served as deputy prosecutor since 2004.
Second, African states successfully nominated four out of the 18 current ICC judges: Akua Kuenyehia (Ghana) and Sanji Mmasenono Monageng (Botswana) of the appeals division, and Joyce Aluoch (Kenya) and Chile Eboe-Osuji (Nigeria) of the trial division. Africans are playing a critical role in the determination of cases before the court.
Third, all 16 cases in seven situations brought before the ICC so far have been from African states. To proponents of the court, this shows African states are committed to putting an end to impunity.
The cases include five on the situation in the Democratic Republic of Congo (DRC); four on Darfur, Sudan; two on Kenya; and one case each on Libya, the Central African Republic and Côte d’Ivoire. All involved senior political actors in these countries, except in the case of the Central African Republic, where a Congolese national, Jean-Pierre Bemba Gombo, is being prosecuted.
To the millions of African victims of atrocities who yearn for justice and protection, the ICC is a timely institution to ensure accountability. Victims have begun to feel protected, especially as the first cases of the ICC were voluntary referrals by the states themselves: Africa called the ICC to intervene, not vice versa.
Mali was the fourth African country to request ICC intervention after Chad, Uganda and the Central African Republic. Similarly, Côte d’Ivoire — which, like the US, is not a signatory to the Rome Statute — has asked for an investigation into atrocities during the civil war there.
From the pessimists’ viewpoint, the ICC failed in its initial years. It passed only one verdict, against Thomas Lubanga Dyilo, a war criminal from the DRC who was sentencing to 14 years in custody.
It has been accused of unduly targeting Africans by applying double standards in selecting cases for investigation and prosecution. Perhaps it is on the last point that we must elaborate and offer a rejoinder at least for three reasons. First, geographical or regional balance is not among the Rome Statute’s criteria for determination whether a situation demands investigation. It also does not imply that regions whose member states have not been subject to investigation have been free of, or not accused of, serious human rights violations.
Second, although atrocities may be committed in situations or countries outside the territorial and personal jurisdiction of the ICC, this can be only remedied via a United Nations Security Council referral. This was the case in the situation of Darfur, Sudan and Libya.
Although the UN Security Council may be accused of being a club of the five permanent members (the US, the UK, China, France and Russia) with veto powers, there are 10 non-permanent members in office for two years after being elected by the UN General Assembly.
Since 1946, only 12 African states have never been member states of the UN Security Council: the Central African Republic, Chad, the Comoros, Equatorial Guinea, Eritrea, Lesotho, Malawi, Mozambique, São Tome and Principe, the Seychelles, South Sudan and Swaziland. At present, South Africa, Togo and Morocco are members.
During their two-year tenure, all UN Security Council members have an opportunity to set the agenda and serve as chair, as the presidency is rotated monthly.
No African state serving on the Security Council has proposed a referral of any of the cases before the ICC, which may suggest that these countries — which are elected with the backing of the AU — find no reason for such action.
Third, the ICC prosecutor has received 9,332 complaints or requests for investigations since July 2002. It is now analysing under what legal circumstances it may investigate complaints in a variety of countries, including the Palestinian territories, Afghanistan, Nigeria, Honduras and South Korea. It is also following court hearings relating to serious human rights violations or crimes against humanity in Colombia, Georgia and Guinea.
In sum, the ICC is not targeting Africa. In fact, Africa is taking leadership in international criminal justice, and we should not trivialise the achievements so far.
• Maina is director of Article 19 Eastern Africa.
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