Anti-Impunity Norm of the International Criminal Court: A Curse or Blessing for Africa?

Abstract

In recent years, the position of the International Criminal Court (ICC) in Africa has become an issue of contention. Through the African Union (AU), African leaders have expressed their concern in relation to the principle of impunity and self-sovereignty of African nations. The AU asserts fiercely that the influence of the ICC is overwhelming on the African continent; therefore, African leaders clamor for an amendment to the court or even a total withdrawal. I argue that the change of relationship initiated by the AU is not only selfish but also unequivocally harmful to the tenets of justice, law and order. By way of a vast exploration of data (internet sources, official government records, print sources and online interviews), this study reiterates the importance of the anti-impunity norm of the ICC as an instrument of equity, especially when African leaders are involved.

Keywords

International Criminal Court impunity African Union government sovereignty Rome Statute norm

Introduction

The International Criminal Court (ICC) was created as a permanent court bestowed with the legal power to prosecute individuals (irrespective of political authority) for internationally related offenses. African nations greeted the Rome Statute (statute establishing the ICC) with enthusiasm and hope, but when the ICC started investigating African leaders accused of committing crimes, the entire world witnessed a sharp decline in the relationship between the ICC and the African Union (AU).

Amitav Acharya is an important scholar in the field of norms and rules. In his Norm Localization Model, he explains how the weaker states manage the pressure exerted on them by international organizations or stronger states. The pressure could be in the form of international norms or rules, and the weaker states quickly manage this pressure by either accepting or rejecting the norms (Acharya, 2011). The theory of norms contemplates another of Acharya’s models, the Norm Subsidiarity Model, which will be applied in the ICC vs. the AU case. In this instance, the norms promulgated by international organizations or stronger western powers encounter high resistance from weaker states. For the weaker states, paying attention to these norms would mean losing their sovereignty. We can then deduce from the Acharya norm cycle that the weaker states (African nations) tend to repel the norms promoted by the ICC mainly because they are perceived as a threat to the self-determination and sovereignty rights of African nations. By repelling these norms, the African nations, in turn, suggest to the ICC that valuable changes could be made to the Rome Statute, changes that will serve as a maneuvering technique to escape justice. This study will explain the relationship between the ICC and the African continent by constantly referring to Acharya’s norm models.

ICC and Africa

When the Rome Statute passed into law in 1998, most nations in Africa ratified it because of a number of factors. First, there was the issue of the Rwandan crisis. The Rwandan genocide disrupted Rwanda and other neighboring countries such as Burundi and led to catastrophic implications for Africa in the 1990s. Similarly, during the same period, Africa witnessed civil wars such as the Liberian civil war (1989–1996), the Angolan civil war (1975–2002), the Sudanese civil war (1983–2005) and the Somalian civil war, which started in 1991 and is still ongoing. All these wars created huge humanitarian concerns for African leaders. Although in the Rwandan case an international tribunal was set up, other wars prompted little or no action toward justice, hence the need for African nations to join the ICC. The second reason for the mass ratification of the Rome Statute was the jurisdiction of the ICC against crimes of aggression; African nations found refuge in the statute.

Following the creation of the ICC, the majority of the African states supported the Rome Statute, despite its anti-impunity norm. However, countries such as Egypt, Eritrea, and Libya were skeptical of the anti-impunity norm and tried to lobby the AU into prohibiting African countries from joining this newly formed court en masse, claiming it was an imperialist scheme of superpowers (Kurt Mills, 2018). The ICC, notwithstanding, gained mass support from African countries, and in 2003 the ICC presided over its first case that had been referred by Uganda. This was a case involving the warlord Joseph Kony of Uganda. Shortly after this event, the Democratic Republic of Congo referred another warlord, Jean-Pierre Bemba, to the court. When the condition in Darfur in Sudan deteriorated, the United Nations Security Council (UNSC) referred Sudan to the ICC. It is worth noting that in 2004 the AU encouraged members to support, sign and even adopt the Rome Statute into their domestic law (Kurt Mills, 2018). Cote d’Ivoire actually did so by giving the ICC limited domestic jurisdiction.

In 2003, an arrest warrant was issued by Interpol for former Liberian president Charles Taylor. At first, Nigeria refused to cooperate with the warrant, but in 2006 when the Liberian government showed its support for the arrest, Charles Taylor was extradited from Nigeria to Sierra Leone, and not to the ICC (Kurt Mills, 2018). Another similar event was the prosecution of former Chadian president Hissène Habré. Senegal refused to initiate proceedings against the former Chadian leader, the reason given being that national judicial issues were beyond the ICC’s jurisdiction. Similarly, Senegal, through its courts, refused to transfer Habré’s case to Belgium, citing reasons of impunity and immunity. These two events signified that African states, although accepting the international norms set up by the ICC, were equally selective as to which ones to follow to preserve their sovereignty. This explains Acharya’s Norm Localization Model. In 2006, in response to these events, the AU created the Committee of African Eminent Jurists to determine under which circumstances state sovereignty could be bypassed. Another function of the committee is to ascertain when, where and how the ICC’s anti-impunity law can be exercised (Committee of Eminent African Jurists, 2006).

As a corollary, the idea of universal jurisdiction became a debated issue, especially in Rwanda, where the International Criminal Tribunal for Rwanda was held. The Rwandan government accused the western powers of initiating the prosecution of the Tutsi-led government for genocidal crimes committed during the Hutu regime. As a result, in 2008, the AU assembly passed a resolution saying that attempts to exercise the principle of universal jurisdiction would mean undermining the principle of universal sovereignty, especially in African nations. The relationship between the ICC and Africa declined when the arrest warrant for Sudanese president al-Bashir was issued.

The former chief prosecutor of the ICC, Luis Moreno Ocampo, solicited for the arrest of President Omar al-Bashir for crimes that were under the jurisdiction of the Rome Statute. In protest at this arrest, the AU’s Peace and Security Council requested the UNSC to oppose President al-Bashir’s arrest. Using Rwanda as an example, the AU claimed that the arrest warrant was contrary to state sovereignty and, consequently, the African continent began to believe the ICC was hostile toward African nations. To reinforce its stance, the AU reiterated its position as opposing the arrest of the former Sudanese president. Because al-Bashir was an important personality in Sudan, his arrest, according to the AU, would only exacerbate the Sudanese conflict (African Union Peace and Security Council, 2008). The AU, therefore, was strongly opposed to the actions of the ICC.

The Sudan crisis occurred in the Darfur region in February 2003. Two important rebel groups, the Sudan Liberation Movement and the Justice and Equality Movement, launched an attack against the Sudanese government for alleged oppression of the Darfur non-Arab population. In response to these attacks, the Sudanese government, under President al-Bashir, started an operation of ethnic cleansing that was mostly focused on the non-Arab population of the Darfur region. This explains why President al-Bashir had been indicted by the ICC for crimes of genocide and inhumane treatment, and crimes against humanity. The indictment, however, came after the UNSC referred al-Bashir to the ICC by passing Resolution 1593.

The AU requested that the decision to indict al-Bashir be deferred to adequately manage the peace process in Darfur. At this stage, however, the AU was not in direct opposition to the ICC, but it was a step toward the outright accusation leveled at the court in 2015. Shortly after the request to defer al-Bashir’s indictment was rejected by the UNSC, a number of African countries voiced their dissatisfaction about and opposition to the decision to the ICC. Comoros, Libya (which was skeptical of the court from the outset), Senegal (the first country to sign the Rome Statute) and Djibouti all called on African nations to withdraw their support for the ICC collectively, claiming it was only serving an imperialist goal against Africans (Sudan Tribune, 2009). The request was, however, rejected by other African states that were a party to the Rome Statute, even though they felt somewhat disappointed that the deferral request was turned down by the UNSC.

In 2009, the AU, in a bid to limit the power of the ICC in Africa, called for the creation of an African court to prosecute crimes that were under the jurisdiction of the ICC. The covert aim of this African court was to reduce the power that the ICC was exerting on African nations and, by doing so, limit the support of African states for the ICC. The second move the AU made was to defy the arrest warrant on President al-Bashir by requesting that all African nations openly oppose the ICC’s orders, arrest warrant or universal jurisdiction action (African Union, 2009). Some African countries supported this plea by the AU and refused to arrest al-Bashir when he came for official visits. Even China, who was a member of the UNSC, welcomed the Sudanese president to the country. Only Chad resented the AU’s request, saying that if given the opportunity, al-Bashir would be arrested.

Following continued problems in Darfur, the AU Peace and Security Council created a panel called the AU High-Level Panel on Darfur. This panel reported to the AU, suggesting that the anti-impunity norm should be implemented in the Sudanese case. The panel, however, advised that trials be held in a hybrid court of local and foreign judges and not in the ICC (Kurt Mills, 2018). This action signified that African nations were gradually moving to a much more anti-ICC stance, demanding that Africans solved their own problems. All these actions taken by the AU followed Acharya’s Norm Localization Model. In July 2010, the ICC issued a second arrest warrant against al-Bashir for crimes of genocide. As a result of this, the AU encouraged mass withdrawal from the ICC.

Road to mass withdrawal

An AU summit was convened following the issuance of al-Bashir’s second arrest warrant. At this summit, the AU assembly called on all its members to disregard the arrest warrant. In addition, a proposal by the ICC to create an ICC–AU liaison office in Ethiopia was rejected. In his speech, the chairperson of the AU Commission explained that the creation of the liaison office was viewed by African nations as one of the many schemes of the ICC and its western supporters to continue their imperialist policies in Africa. As a result, the proposal was rejected (African Union, 2010).

In July 2010, during the AU summit, former Malawian president Bingu wa Mutharika, who was also the chairman of the AU, proposed that rulers of states and heads of government should not face the ICC but should rather face African courts (a statement greatly mocked considering that the African judicial system was a total failure). In this way, according to President Mutharika, the African continent would have fought against impunity.

Bingu wa Mutharika’s argument conformed with the report submitted by the AU High-Level Panel on Darfur, which requested that Africans should be allowed to solve their own problems in an African court. Thus, the AU continued to work toward the creation of the African Court of Justice and Human Rights by bringing together the already existing African Court of Justice and the African Court on Human and Peoples’ Rights. This development led the AU to declare that no serving African head of state should be prosecuted by any international court (African Union, 2013).

The leaders of African nations voted to include genocide as well as other international crimes under the jurisdiction of the new African court, with the only exception that sitting heads of states were not to be tried by the court. This implies that certain powerful citizens would enjoy immunity, despite the evidence of criminal offenses brought against them. The right to impunity goes directly against the anti-impunity principle of the ICC. Acharya’s Norm Localization Model can be applied here, it being evident how local authorities and powers create norms that are suitable for rejecting pressure from international powers. Immunity for top government officials is, however, very problematic. The most heinous crimes are committed by top government officials, and because they cannot be punished, these crimes will only linger on. In addition, heads of states who are guilty of offenses committed will choose to remain in power because they can enjoy impunity rights, therefore, obstructing democracy and establishing tyranny.

From 2013, the ICC began to face a major backlash from African leaders both at the AU summit and the UN General Assembly. In May 2013, at the AU Assembly for Heads of State and Government, former prime minister of Ethiopia Hailemariam Desalegn accused the ICC of being racially biased. According to Desalegn, the aim of creating the ICC was to fight against impunity, but now it seemed as if the court had been created to punish Africa in a sort of race hunting (Staff, 2013). African leaders at the UN General Assembly echoed resonantly that the court, through its imperialist agenda, had shown a false picture of the African continent, (i.e. without a judicial system), and by doing so, had spread a bad image of Africa.

In January 2016, following the criticism from African nations, the AU Assembly for Heads of State and Government passed a resolution that allowed the withdrawal of African members who were parties to the Rome Statute. Consequentially, this implies a withdrawal from the ICC. This action from the AU was not unanimous, as some states in Africa, such as Botswana and Nigeria, supported the ICC, whereas others were against it. In 2016, Burundi and South Africa proposed to the UN that they were going to withdraw their signatures from the Rome Statute. Although Burundi’s proposal became effective, the South African parliament rescinded the withdrawal proposal made by the South African government. The Gambia, similarly, submitted a proposal for withdrawal but, equally, this was rescinded following a change in government (AFP, 2017).

After a year, the AU devised another mechanism that could be said to be a challenge to the ICC. This plan was called the ICC withdrawal strategy, the most relevant section of which was paragraph 8. This spelled out the objectives of the strategy, and paragraph 8 states:

It is in this regard that the AU policy-making organs have issued a number of regulatory decisions, the most recent of which the assembly called on the open ended ministerial committee to develop a withdrawal strategy to be considered by member states and particularly African state parties to the Rome Statute, as a sovereign exercise. The intended outcome of the implementation of the various decisions of the AU policy organs is to

a. ensure that international justice is conducted in a fair and transparent manner devoid of any perception of double standards;

b. adopt institutional and legal administrative reforms of the ICC;

c. enhance the regionalization of international criminal law;

d. encourage the adoption of African solutions for African problems;

e. preserve the dignity, sovereignty and integrity of member states (African Union, 2017).

Acceptance of this strategy was greeted with different views by individual states of the AU.

The next two sections will discuss the relevant cases of some African countries concerning their relations with the ICC.

Supporters of the ICC

Botswana

Botswana is a major supporter of the ICC in the African continent. The country has always allied with the ICC in the AU assembly meetings and has encouraged other states to do so. When the AU called for non-compliance in the arrest of Sudanese president al-Bashir, Botswana made it clear that if it had the opportunity, al-Bashir would be arrested. Botswana challenged the AU, stating that it had not yet acquired supranational status over African countries and so should not dictate to its member parties what to do in terms of their foreign policy (Apiko and Aggad, 2016).

The ICC made a giant stride in 2017 when Botswana’s judiciary adopted the Rome Statute into its national laws. When the call for mass withdrawal was initiated, Botswana was one of the countries that fought against the realization of this idea. A statement from the country’s foreign ministry reiterated Botswana’s support for the ICC. This statement further establishes the position of the court in the region: ‘Botswana is convinced that the only permanent international tribunal is the ICC and the court is a very important factor in the aspect of international criminal law’ (AT Editor, 2017). In addition to this, in October 2015 the ICC organized a major regional seminar in Botswana on cooperation between the ICC and the African states. This strongly highlighted the linkage between regional and national development through cooperation.

Cote d’Ivoire

This Western African country is a great supporter of the ICC. Following the 2011 presidential election that led to the fall of President Laurent Gbagbo, post-election violence erupted. This was believed to have been caused by Gbagbo’s unwillingness to hand over power to the incumbent president Alassane Ouattara. This violence soon led to a three-month civil war in which hundreds of lives were lost and people displaced. President Gbagbo was eventually disarmed, and the new Ivorian regime cooperated with the ICC in arresting Gbagbo. The Ivorian government has also stated its support for the ICC at AU meetings.

Equally, Nigeria, Ghana and Mali are strong supporters of the ICC, and they all reiterated their backing for the organization, especially during the withdrawal announcement. Because of their opposition to this, the general withdrawal proposal was removed from the table (Apiko and Aggad, 2016).

Gabon

In September 2016, Gabon requested the ICC to begin proceedings for war crimes that had been committed in the country since May 2016. This indicated that Gabon was a strong supporter of the ICC.

The Seychelles, Cape Verde and Tunisia adopted the Rome Statute after 2010, and are also strong supporters of the court. The former UN Secretary-General Kofi Annan has criticized the African nations for opposing the ICC, saying that the court is the most important organization for prosecuting international crimes and bringing justice. (Wintour, 2016).

Non-supporters of the ICC

Burundi

Burundi is easily remembered when mentioning states opposed to the ICC. This Eastern African country signed the Rome Statute in 1999 and ratified it in September 2004. Burundi has been a base for intra-state violence over the years, but the 2015 political violence recorded the highest level of havoc and destruction. President Pierre Nkurunziza assumed control of the government in 2005. In 2015, he announced that he would run for the presidency for the third time, which is a clear violation of the constitution, as only two tenures are allowed. Following his announcement, members of the opposition parties protested and, shortly after, a civil war erupted, leading to a blood bath and displacement of about 20,000 Burundians (Coalition for the ICC, 2015).

The presidential election was, however, held in July 2015 and, controversially, Nkurunziza was elected president. Shortly after he assumed office, over 250 people were killed and more than 200,000 fled their homes in December 2015. The Office of the Prosecutor of the ICC opened preliminary examinations of the crisis from April 2015, and in October 2016, in a bid to reject further intrusion by the court, Burundi notified the UN Secretary-General that it no longer intended to be a party to the Rome Statute. The right to withdrawal is given in Article 127 of the Rome Statute, which states:

A state party may by written notification addressed to the Secretary-General of the United Nations, withdraw from this statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date;

A state shall not be discharged by reason of its withdrawal, from the obligations arising from this statute while it was a party to the statute, including any financial obligation which may have accrued. Its withdrawal shall not affect any cooperation with the court in connection with criminal investigation and proceedings in relation to which the withdrawing state had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the court prior to the date on which the withdrawal became effective (International Criminal Court, 1998).

Burundi may have decided to withdraw from the ICC because some of its top government workers were being investigated by the court, so the withdrawal application was selfish. In its defense, the government explained that the court was a political instrument that the world powers (the permanent members of the UN Security Council) were using to enslave other states. However, according to Article 127, paragraph 2 of the Rome Statute, any criminal investigation that may have started before the application for withdrawal will be continued, and the withdrawing state must cooperate with the ICC. This implies that despite the withdrawal, the preliminary examination and investigation in Burundi would not be aborted. However, despite this, Burundi became the first country to leave the ICC.

South Africa

South Africa has been a major supporter of the ICC since its creation. However, after the issuance of the arrest warrant for President al-Bashir, South Africa’s support for the ICC diminished. Reluctantly, the South African government agreed to apprehend the Sudanese president if he visited the country. When further resistance to the ICC was encouraged by the AU, South Africa clamored for the establishment of an African court to try African cases, thereby rejecting the ICC. Al-Bashir attended the 2015 African summit held in South Africa, and a national court sitting in Gauteng demanded his arrest. This warrant was not executed, however. Instead, the South African government stated that the Sudanese president enjoyed immunity while attending diplomatic conferences (Khoza, 2017).

This action disregarded the Rome Statute, which is absolutely against impunity. South Africa was criticized by the ICC, the EU, and other states that supported the arrest warrant. As a result of South Africa’s refusal to arrest al-Bashir, the ICC initiated an investigation to determine whether South Africa had acted unlawfully. On 21 October 2016, President Jacob Zuma submitted a petition announcing his withdrawal from the Rome Statute. This single action caused an uproar in the country as the opposition claimed that the presidency could not exercise such rights without consulting the parliament. Thus, on 7 March 2017, the South African High Court ordered that the petition be revoked (AFP, 2017).

In his defense, President Jacob Zuma said that the ICC had no regard for diplomatic immunity and, therefore, if a leader of a state was found guilty and then arrested, the subsequent power vacuum could generate instability and even war (Apiko and Aggad, 2016). In the AU Assembly of States Parties, South Africa had always supported an amendment to the Rome Statute that would provide diplomatic immunity. The South African government also appealed against the decision by the High Court in relation to the withdrawal decision. Consequentially, the ICC published the result of its investigation and concluded that the South African government had failed in its obligation to arrest al-Bashir. The pre-trial chamber of the ICC, however, refused to refer South Africa to the UNSC because the government withdrew its appeal against the decision of the High Court. Once again, this emphasized the government’s support for the ICC and for an amendment to the Rome Statute.

The South African government had its grievances with the UNSC, in particular, the council’s ability to refer cases to the ICC. It stated that most members (three out of five) of the UNSC were not parties to the Rome Statute, so it was unwise to allow those countries to exercise the right of referral. South Africa also supported the creation of African courts to try international crimes to avoid the impression of imperialism given by the ICC. Former president Jacob Zuma called for a mass withdrawal of African countries from the ICC, but with the advent of a new South African government, the country is believed to have become an ardent supporter of the ICC.

Gambia

Under the authoritarian rule of former president Yahya Jammeh, the Gambia showed minimal support for the ICC. President Jammeh, who ruled the country for over 20 years with a very strong hand, opposed the court on several occasions. The former president was not the only Gambian politician who disregarded the ICC; even Information Minister Sheriff Bojang directly criticized the ICC for being the ‘International Caucasian Court’ (Hersher, 2016), claiming that the court was a tool used by the West, predominantly Caucasians, to persecute people of color, especially Africans.

When Fatou Bensouda from the Gambia was appointed in 2012 as the chief prosecutor of the ICC, people thought this would buy the support of Africa, especially her home state, but in late October 2016 the Gambia announced its withdrawal from the ICC. This came as a total blow to the ICC, and a very big surprise to the international community that had earlier thought the Gambia would support the court. President Yahya became the outgoing president when Adama Barrow won the election. The country was flung into a state of post-election repression because President Yahya refused to accept the election result. Leaders from various African countries visited the Gambia to try and create peace and avoid an imminent civil war; eventually, President Yahya stepped down and in February 2017 President Adama Barrow rescinded the withdrawal decision. Investigations are underway to determine whether former president Yahya Jameh should face trial for some of the worst human crimes committed during his presidency.

The Gambia and South Africa are the only countries who have so far rescinded their withdrawal notifications.

Kenya

Kenya is popularly known as the first country in history whose current president and vice-president are facing trial by the ICC. After the 2007 post-election crisis in the country, the Waki Commission (officially, the Commission of Inquiry into Post-Election Violence) was established in 2008 by Kofi Annan in conjunction with the Panel of Eminent African Personalities. The Waki Commission was created as a result of the Kenya National Dialogue and Reconciliation Accord of 28 February 2008. After the Waki Commission compiled its report, it submitted the record of the accused persons responsible for the election violence to Kofi Annan, who then gave the names to Luis Moreno Ocampo (now the former chief prosecutor of the ICC). The agreement reached provided Kenya with a one-year ultimatum from July 2009 to set up a tribunal to punish perpetrators of the post-election violence; otherwise, the ICC would take up the issue.

Kenya failed to establish the tribunal because of tribal politics and favoritism and, as a result, the ICC took up the case, making accusations against some prominent Kenyan politicians, amongst them the president and vice-president. Both men played very tactical politics in relation to the legal proceedings and were often seen in campaigns accusing the ICC of opposing Kenya’s sovereignty. The cases brought against the Kenyan president and vice-president were eventually dropped without prejudice, meaning that issues relating to these cases could still be filed. President Kenyatta’s popular statement censuring the court is based solely on the nation’s sovereignty. He criticized the court as being a western tool used to delimit the Kenyan nation’s sovereignty and create regime change. The Sudanese president, whose arrest warrant had been issued, subsequently visited Kenya in August 2010, but he was not arrested. Kenya had directly disobeyed the orders of the ICC and the AU supported Kenya’s decision. Similarly, the AU wrote to the UNSC to defer the case against the Kenyan president and vice-president, but in 2013when this request was rejected, the Kenyan parliament called for a withdrawal from the Rome Statute. Two motions have been passed by the Kenyan parliament in favor of exiting the court (PSCU, 2016). In the AU meetings, Kenya is often in support of a mass withdrawal plan for leaving the ICC.

During the 2016 independence day celebrations (Jamhuri Day), President Kenyatta publicly said, ‘we have sought the changes that will align the ICC to respect for national sovereignty. Those changes have not been forthcoming, we will, therefore, need to give serious thought to our membership’ (PSCU, 2016). Kenya is one of the major supporters calling for the amendment of Article 27 of the Rome Statute to grant immunity to sitting heads of state. This action, furthermore, shows the selfish nature of the majority of the African leaders. The major reason why President Kenyatta is advocating immunity is that he is a sitting head of state, and he does not want to be responsible for his participation in the post-election violence. Kenya, in theory, supports anti-impunity by continuing its membership of the ICC but, in practice, it is asking for immunity for heads of state.

Uganda

In 2003, Uganda became the first state in history to refer a matter to the ICC for prosecution (Kurt Mills, 2018). This referral, however, was made intentionally to punish the Lord’s Resistance Army (LRA). When Lord Kony of the LRA said that he would stall the peace process if the indictment on him was not removed, the Ugandan government started to accuse the ICC of being an obstacle to peace. It should also be noted that President Museveni of Uganda has been in power since 1986; for such a long-serving president who has been engaged in several wars, impunity and diplomatic immunity are, therefore, essential elements of international relations. When the AU started to rally for mass withdrawal, Museveni began to define the ICC as an exploitation tool in the hands of western powers against Africans. In his view, he deemed the interests of peace to be above everything else, even justice. Thus, he queried the indictment of President al-Bashir of Sudan.

In 2009, the country nullified an invitation sent to al-Bashir to attend a seminar in Kampala but, subsequently, things changed when in 2016 President Museveni invited President al-Bashir to the fifth presidential swearing-in ceremony in Kampala. Amongst the guests in this ceremony were foreign dignitaries and other African leaders. In his speech, President Museveni spoke about the ICC and he was quoted as saying, ‘forget about this ICC useless thing. Earlier we thought the ICC was useful, but to us, now African leaders, we see it is useless. It’s a bunch of useless people’ (BBC, 2016). After this remark, representatives from the USA, Canada and the EU walked out of the ceremony.

The president’s remark is a contradiction, because just a year earlier he requested that the ICC prosecute the LRA commander Dominic Ongwen. This implies that although Uganda will not withdraw from the Rome Statute in the near future, the country is using the ICC for distorted reasons that are detrimental to justice. The country’s foreign affairs minister, Henry Oryem Okello, was quoted in 2016 as saying, ‘ICC deserves what is happening to it now’ (Cropley, 2016). This statement came after South Africa showed its intention to leave the ICC. In 2017, the Ugandan Attorney General, William Byruhanga, remarked that although the country had its concerns with regard to the ICC, it had not yet considered leaving.

Namibia

Namibia is not a supporter of the ICC. Under President Hage Geingob, attempts to withdraw occurred in 2015 and 2016. The executive members of the Namibian government have accepted the withdrawal decision, and are now waiting for the parliament to deliberate on possible withdrawal methods. At a conference in London, President Hage told Reuters News that Namibia would stay in the ICC only if the USA joined (Milhench, 2016). The president stated that Africans should develop their own institutions and, therefore, the ICC should be abandoned.

President Hage condemned the ICC, saying it was not fit for purpose and that mass withdrawal by African states should be initiated. In his undelivered speech at the 2015 AU summit in South Africa, President Hage wrote that African nations should withdraw from the ICC because it was becoming an abomination by not fulfilling its mandate (Immanuel, 2015). The president requested that the ICC stay out of Kenya’s domestic affairs, stressing that no state or institution could dictate to any nation who would rule them. In February 2017, the government of Namibia supported the AU’s mass withdrawal policy and requested that heads of states should be prosecuted by the ICC only after their tenure had come to an end in order to preserve stability.

Other non-supporters of the ICC in the AU are Ethiopia, Libya and Sudan.

As stated earlier, former Ethiopian prime minister Hailemariam Desalegn, who was the chairman of the AU summit in 2008, explained the distrust of the ICC that was shared by African leaders. During this summit, the idea of mass withdrawal was first hinted at. Similarly, in 2009, Thomas Boni Yayi, who was the president of Benin, likened the ICC to a hunter whose prey was Africans. Most African countries have been skeptical about the role of the court, especially when it has been dealing with Africa. In 2003, Libya, under President Gaddafi, rejected the ICC outright, declaring it as only an instrument used by foreign powers to promote their interests in Africa. When the UNSC referred Libya to the ICC, African leaders were displeased because Libya was not a party to the Rome Statute. Similarly, Sudan has never been a friend of the ICC. The ICC issued two arrest warrants for President al-Bashir and, in addition, Sudan is also not a party to the Rome Statute.

In October 2015, during the UN General Assembly, the foreign minister of Sudan, Ibrahim Ghandour, criticized the ICC, saying that it was a weapon for targeting African leaders. The foreign minister further soured the relationship between the UNSC and the ICC when he highlighted the preponderance of politics over justice, and the need for reforms to the Rome Statute (Reuters, 2015). Jean Ping from Gabon, who in 2009 was the former chairperson of the AU Commission, accused the former chief prosecutor of the ICC, Luis Moreno Ocampo, of bias against African nations. Jean Ping attacked Ocampo, accusing him of issuing justice with unfairness, stressing that other parts of the world as well as Africa needed to be prosecuted by the ICC (Lough, 2011).

Judging from the above-mentioned cases, we can argue that for most African countries, justice is perceived to be unfair. The ICC, however, rejected the accusations made by AU member countries.

The rebuttal from the ICC

The ICC based its defense on the principle of complementarity mentioned in the Rome Statute. The complementarity principle ensures the provision of justice in countries not capable of handling serious legal cases, or in cases for which they are unwilling to administer justice. The ICC is the last hope for people demanding justice for powerful criminals who can escape national courts.

As expressed by Kofi Annan, heinous crimes will not be punished if African states withdraw from the ICC. The alleged bias of the ICC, as indicated by most African nations, is, according to Kofi Annan, unfair and unfounded. He cited the only case opened by the ICC, the Kenyan case, which enjoyed the support of millions of Kenyans who wanted justice (Wintour, 2016). In this case, if the decision by the Waki Commission was strictly followed by the Kenyan government, a national tribunal to try post-election crimes would have been opened and the guilty parties would have been punished. However, subsequently, the Kenyan government could not meet the one-year ultimatum to open a tribunal and, consequently, the complementarity principle was employed by the ICC. In his response to Jean Ping of Gabon, Luis Moreno Ocampo explicitly denied claims that the office of the prosecutor had a bias in its pursuit of justice. Ocampo further reiterated that the principle of complementarity had only been engaged to ensure justice for international crimes committed (Lough, 2011).

The majority of the cases initiated by the ICC were opened by national governments, a few were referred by the UNSC and only the Kenyan case was opened by the ICC. Joseph Kony was referred to the ICC by the Ugandan government. Similarly, Jean-Pierre Bemba and Laurent Gbagbo were referred by the Democratic Republic of Congo and Ivorian governments, respectively, for indictment. The ICC never forced these governments to refer these cases, but the national governments did so voluntarily. Therefore, it is unfounded to accuse the ICC of voluntarily targeting African nations (Muchayi, 2013). In the words of John Washburn, ‘This is not a question of picking on Africa, the UNSC referred Darfur; and the other countries came forward voluntarily’ (Hanson, 2008). Libya can also be added to the list of countries referred by the UNSC.

With regard to the accusation that the ICC is an imperialist tool used by the West, and that it is unable to punish western nations, the ICC argues that countries such as the USA and Israel that are accused of international crimes and appalling human rights abuse cannot be punished by the court because they fall outside the jurisdiction of the ICC. Even if referral by the UNSC is required to punish the state of Israel, the USA, which is a permanent member of the UNSC, will use its veto power to defer the referral. Similarly, Russia will make use of the veto power if any of its ‘friends’ were to be referred by the UNSC. Thus, the political implications of the UNSC have, equally, obstructed the free flow of justice for other countries. The ICC will get involved or intervene only when national courts or governments fail to initiate prosecution for crimes.

The Cambodian government, for example, established the Cambodia Tribunal, which is also known as the Extraordinary Chambers, to punish guilty parties for crimes committed 1975–1979 by the Khmer Rouge regime (Extraordinary Chambers in the Court of Cambodia, 2003). Bangladesh and Guatemala were also capable of setting up tribunals independently (without the help of the UN) to try crimes of genocide, human rights violations and other international crimes under the jurisdiction of the Rome Statute.

In these instances, the principle of complementarity could not be used, because the national governments were capable of prosecuting criminals. With regard to the war in Yugoslavia, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up in the country, hence, the ICC was not needed to prosecute Slobodan Milosevic. Differently from Zimbabwe were, without any indictment, hundreds of innocent citizens perished in the 2008 protest.

Some regional courts created by different intergovernmental institutions prosecute only states for crimes and not individuals; therefore, the ICC is still the last resort with regard to punishing individuals for violations of human rights. In comparison, the European Court of Human Rights (ECtHR) is the oldest and the most effective regional court, whereas the African Court of Justice and Human Rights is relatively new and thriving. As a result, most European citizens can report their countries to the ECtHR, and under the European Convention of Human Rights most countries can be prosecuted by the ECtHR without going to the ICC.

The Inter-American Court of Human Rights founded by the Organization of American States in 1979, can initiate proceedings against its 20 member states. The member states have enforced the American Convention of Human Rights and accepted its jurisdiction over domestic matters. Individuals from these countries can be certain of receiving justice from a regional court; there is, therefore, no need to go to the ICC. The ASEAN International Commission on Human Rights that is spearheaded by the Association of Southeast Asian Nations (ASEAN) is another regional commission that was founded in 2009 to manage human rights practices by its member states. Atrocities committed by the governments of the states belonging to these various regional institutions are dealt with at the regional level and, as a result, fewer cases from these countries are transferred to the ICC. The various established African courts are constantly experiencing multiple obstacles, hence the need for much stronger and efficient courts.

Conclusion

Perpetrators of war crimes, crimes against humanity, genocide and other international crimes would go unpunished if international criminal tribunals were not introduced. What then would be the power of justice if such huge crimes were not punished? The creation of the ICC has not only provided justice for those affected by international crimes, but has also served as a form of deterrence to others who may consider committing international offenses. Because our world system has no central authority, wars and conflict are almost inevitable. The belligerents in these unending conflicts can intentionally or unintentionally cause pain, not only to other conflicting parties but to civilian and non-allied bodies as well. Therefore, the international community, through various international organizations, has created judicial organs to prosecute offenders.

With the creation of the ICC, individuals hoped that a permanent court had been created to fight against impunity and to deliver justice with all fairness and equality. In 2002, when the Rome Statute was adopted, former UN Secretary-General Kofi Annan encouraged all African countries to join the court to fight against aggression from foreign states and to maintain their state sovereignty. Things turned sour when the ICC started to exhibit its full jurisdictional powers. According to Fatou Bensouda, who is a Gambian national and chief prosecutor of the ICC, the problems the ICC faces in relation to most African countries were expected to occur, because most of the dictators were looking for protection under the disguise of immunity. If immunity is granted to leaders who are key actors in international crimes, what, then, is the usefulness of the ICC?

The indictment of al-Bashir was the turning point in the relationship between the African continent and the ICC. Most of the African leaders argued that a serving head of state should not be prosecuted. In instances in which immunity is a breeding opportunity for committing more crimes, then there is no justice. This implies that the ICC will only be a figurehead and nothing more. When President Kenyatta and Vice President Ruto were indicted by the ICC for post-election violence, African leaders frowned at this development, calling it a foreign strategy to change political regimes. The majority of Kenyans who were victims of this 2008 post-election violence greeted this development with great joy. The recommendation by the Waki Commission that a tribunal should be set up to punish the offenders from the post-election violence was ignored by the Kenyan government; therefore, if it were not for the ICC, victims of this violence would have no justice and offenders would not be prosecuted. The ICC works strictly on a principle of complimentarily, that is, it is not ‘attacking’ African nations as argued by the AU. Justice must be served for every crime committed, and because the judicial institutions of the AU are still growing, the ICC is Africa’s final hope of holding its leaders responsible for offenses committed. Branding the ICC as a ‘western imperialist agenda’ is synonymous with accusing the court of not turning a blind eye to offenses. Without a functioning judicial system in the AU, Africans can only turn to the ICC for justice.

When the AU created a strategy to enable withdrawal from the court, the African continent was thrown into a state of shock because the judicial system of the AU was only half-functioning with very limited jurisdictional authority. The AU established the African Court on Human and Peoples’ Rights, which never came into force; despite this, the AU further created the African Court of Justice and Human Rights by merging the African Court on Human and Peoples’ Right and the Court of Justice of the African Union, which has not yet come into force either. Therefore, if the African continent withdraws from the Rome Statute, what will be the fate of justice in Africa? What will the victims have as consolation? Until Africa can boast of a strong, formidable regional court that can prosecute individuals irrespective of their power and authority, the ICC is, according to Kofi Annan, the credible court of last resort for the most serious crimes.

Footnotes

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Samuel Okpe Okpe

Author biography

Samuel Okpe Okpe is a doctorate student of Political Science and International relations at Istanbul Aydin University. He completed his undergraduate and master’s studies at Near East University in the field of International Relations and Public International Law respectively.

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