Is ICC targeting African countries?
African countries played a pivotal role in the processes leading up to the adoption of the Rome Statute establishing the International Criminal Court (ICC). No less than 47 African countries were represented in the negotiations towards the adoption of the Rome Statute. It is only fair to say African contributions helped shape the architecture governing the ICC.
The enthusiasm of African countries about the ICC did not end with their participation in negotiating the Rome Statute. Many African countries readily signed and ratified the Rome Statute once it was open for signature and ratification. In fact, 34 African States are parties to the Rome Statute, making the African bloc the biggest continental support base for the ICC in the world. Notably, Senegal, an African country, was the first country in the world to sign and ratify the Rome Statute.
Lately, however, relations between the ICC and African States have soured and this has most clearly been manifested by resolutions adopted by the African Union (AU). If the AU Resolutions are anything to go by, the AU wishes for African countries to scale down their cooperation with the ICC. Considering the initial optimism about the ICC within Africa, this turnaround is an amazing twist and offers poignant lessons for the relations between the ICC and African countries.
An oft-heard allegation in the ICC/Africa relations is that the ICC is targeting African States by restricting its investigations only to those situations that involve African countries. Those who subscribe to the preceding view further argue that the ICC is bent on pursuing a neo-colonialistic crusade hence its exclusive focus on African countries. Given, all the cases that are before the ICC presently involve African countries—Uganda, Central African Republic (CAR), Democratic Republic of Congo (DRC), Libya, Kenya and Sudan. Additionally, the first conviction that the ICC recorded was against an African as well—Thomas Lubanga Dyilo. Can it then fairly be said that the ICC is indeed targeting African countries in its investigations and prosecutions? I must confess that this question is at once complex and politically charged.
To begin with, one should not read too much into the fact that all the cases before the ICC involve African countries. Uganda, CAR, DRC referred the situations in their countries to the ICC. Libya and Sudan were referred to the ICC by the Security Council while the situation in Kenya was brought before the ICC through the Prosecutor’s initiative. To a large measure, therefore, African countries themselves have invited the ICC to assume jurisdiction over the majority of the cases that the court has registered.
The cases involving Sudan and Kenya have generated the most controversy and in a sense, have largely contributed to the deteriorating relations between the ICC and the AU. Sudan, it must be recalled, is not a party to the Rome Statute and under principles of general treaty law; it should not be subject of the ICC jurisdiction. However, the Rome Statute provides for the Security Council of the United Nations to refer situations to the ICC which can then decide whether to commence proceedings. In the case of Sudan, after the Security Council referred the situation in Darfur to the ICC, the prosecutor decided to indict Omar Al Bashir, the current president of Sudan and several other Sudanese politicians. The indictment of Al Bashir was groundbreaking since it was the first time in history that a sitting head of State was indicted before an international court. Hot on the heels of Al Bashir’s indictment has been the indictment of Kenyan president Uhuru Kenyatta and his deputy William Ruto. Requests by the AU to defer the prosecution of Kenyatta and Ruto have been refused by the ICC just as were requests to defer Al Bashir’s indictment. Kenyatta and Ruto remarkably continue to cooperate with the ICC and have attended court in person on several occasions. Al Bashir’s refusal to accept the jurisdiction of the ICC led the court to issue international arrest warrants. African countries have, so far, not cooperated with the ICC in the implementation of the arrest warrants for Al Bashir. Because of this Al Bashir has been able to visit several African countries, Malawi included, that are party to the Rome Statute, without being apprehended.
In considering whether African countries are being targeted by the ICC, we must recall that the ICC has jurisdiction over the most serious crimes of concern to the global community. The overriding objective for the establishment of the ICC is to end impunity for the perpetrators of these serious crimes. The ICC operates on the basis of the principle of complimentarity. The principle of complimentarity entails that the ICC cannot assume jurisdiction over a case if the same is being competently dealt with by a domestic court or tribunal. The ICC is thus a court of last resort in a sense. Considering the geographical spread of the cases currently before the ICC, the question that may be asked is whether or not the crimes subject the jurisdiction of the ICC are only prevalent in Africa. This is because if similar situations have occurred in non-African countries that are party to the Rome Statute and the ICC has ignored or refused to investigate and prosecute, then the charge that the ICC is picking on African countries may have some merit. Additionally, if the Security Council has failed to refer to the ICC situations similar to those in Libya and Sudan then maybe the ‘conspiracy-theorists’ may have a point. It must be conceded that the ICC’s focus on Africa is often explained on the basis that Africa has had a disproportionate share of situations giving rise to Rome Statute crimes and also that its judicial infrastructure, in many cases, cannot cope with the cases arising.
One important thing to note is that the ICC is a creature of treaty and this means that its jurisdiction only affects the States that are party to the Rome Statute. This means that the ICC has no competence to deal with cases that occur in countries that are not party to the Rome Statute—with the exception of Security Council referrals. The Security Council has the mandate to look into issues pertaining to global peace and ostensibly under this mandate it can refer situations that are a threat to peace to the ICC. The inclusion of provisions in the Rome Statute mandating the Security Council to refer situations, even involving States not party to the Rome Statute, to the ICC was the subject of heavy debate among the delegates in the run up to the adoption of the Rome Statute.
The provisions allowing the Security Council to make referrals to the ICC are not without problems. Firstly, the ICC is established as an institution independent from the UN and linking its work to the Security Council via the power of referral undermines this independence. Secondly, the very nature of the Security Council, in its composition and operational procedures, also undermines the legitimacy of the ICC.
We must recall that in terms of composition, the Security Council still has five permanent members, three of which are not party to the Rome Statute—USA, China and Russia. Presently, therefore, a Security Council referral involves States that are not party to the Rome Statute sending other States to the ICC. This is diabolical to put it modestly. Additionally, the veto power vested in the permanent members of the Security Council entails that any one of them can constrain a referral even when the situation truly requires the ICC to consider a situation. Thirdly, the Security Council’s power of referral borders on an infringement of the doctrine of separation of powers. Considering how patently political the processes within the Security Council often are, it does not look very neat to link these political processes to the work of a judicial organ like the ICC. Seeing that in both Security Council referrals to date, prosecutions that have been instituted have left bare to criticism of political influence.
To come back to our earlier question—is the ICC targeting African countries? This is not an easy question to answer but any answer that one gives must be based on the evidence currently available. It is more in what the ICC has failed to do that the argument of the targeting of African countries finds merit.
For example, the office of the Prosecutor of the ICC has received numerous complaints asking it to investigate atrocities allegedly committed during Operation Cast Lead 2008-2009 by Israel in occupied Palestinian territories. No investigation has been forthcoming—as a matter of fact the office of the Prosecutor has declined to institute any investigation into the situation. The ICC has also not moved to investigate and institute prosecutions against British forces in both Iraq and Afghanistan. Nothing has also been done by the ICC about allegations of crimes committed in Colombia by both the FARC rebels and the Government.
The actions and inactions of prosecutors of the ICC so far seem to suggest that the ICC may have deliberately targeted African countries while at the same time, avoiding non-African situations. It is this that has readily led to the souring of relations between the ICC and the AU. The ICC needs to urgently and credibly take steps that will establish it as an unbiased court. The objectives for which the ICC was established remain very noble and hallowed and the court can ill suffer to lose support and credibility.
—The author is Dean of Law at the University of Malawi
