IS THE INTERNATIONAL CRIMINAL COURT REALLY WITCH- HUNTING AFRICANS? Since the establishment of the International Criminal Court (ICC) in 2002, the Office of the Prosecutor (OTP) has been accused of a bias against African nations due to its exclusive indictment of individuals of African nationality. The parliament of Kenya for instance has recently begun a process of withdrawal from the ICC; and has made a clarion call to other African states to follow its example. Critical comments have also come from the Nigerian and Ethiopian leadership in recent times indicting the ICC of witch hunting Africans. Indeed, since the Rome Statute took effect, all eight cases opened by the ICC have been against African nations. As a consequent, critics have argued that this singular focus on Africa is undemocratic and unjustifiable and cannot therefore be acceptable under any circumstances. Some have even branded the ICC as a neo-colonial institution set up to exert subtle control over the African continent. Superficially, while it is puzzling, if not disconcerting to realize that each of the eight cases currently under investigation at the International Criminal Court (ICC) involves an African country, a closer analysis of the situation would reveal that this accusation against the Court being a witch hunt on Africans is overtly misplaced and unfounded. Strong reasons exist why the ICC has focused its cases in Africa and this piece of article seeks to clearly expatiate on them in a bid to ultimately vilify the Court from undue blame and bashing. Under the Rome Treaty, the ICC is only able to hear cases before it, if the state government is itself “unwilling or unable” to prosecute, investigate, and bring justice to the victims. This requirement, known as the principle of complimentarity justifiably leads the ICC to focus its cases in Africa where effective judicial mechanisms to bring perpetrators to book are absent or in most cases ineffective. For example, in the post-election violence surrounding the Kenyan situation, the cases were referred to the ICC only after Kenya failed to prosecute suspects locally. Although Kenya later claimed to make attempts at reform and attempts at investigating the situation in the 2007 post-election abuses, its activities did not extend to the particular suspects who were indicted by the ICC. Also, in the Democratic Republic of the Congo (DRC), the justice system is plagued with corruption and politics. The M23 rebel group leader who was the sought-after war criminal, Bosco Ntaganda, was so powerful that locally prosecuting him could have extremely damaging consequences to the well-being of the civilian population and possibly led to further chaos and anarchy. Hence, it was appropriate for the ICC to seize jurisdiction. A more compelling argument however is the fact that most of the ICC’s cases on Africa that is before the Court have been referred to the ICC by African states themselves. Three of the seven cases being prosecuted at the moment (Central African Republic, DRC, and Uganda) were referred to the ICC by African states because they were unable to prosecute the perpetrators in their countries. These were self-referrals. Only Kenya and Ivory Coast have been voluntary (proprio motu) cases in Africa, but even at that both Kenya and Ivory Coast requested ICC’s assistance. The other cases involving Libya and Sudan were referred to the ICC by the UN Security Council while that of Sudan still remains ineffective as the warrant on Bashir has not been executed. According to the current ICC Prosecutor, Fatou Bensouda, African states, including non-States Parties, have positively responded to ICC requests for cooperation and over 70 percent have signed the Rome Statute of their own volition. It is also important to emphasize that when States ratify the Rome Treaty, they open themselves up to ICC investigation and accountability by virtue of them having signed the Treaty. The Prosecutor can only use his or her prioprio motu powers to open investigation in a problematic region only if the nation is a State Party, that is, a signatory to the Rome Statute. And for those states that are not signatories to the Rome Statute, the ICC cannot be seized of jurisdiction unless the UN Security Council makes referrals to the Court where such states are committing egregious violations of human rights. But the Security Council, due to deep seated divide and parochial ethnocentrisms has not been able to do this efficiently. This could be seen in the case of Syria where the UN Security Council has been handicapped to make a referral to the ICC notwithstanding the grave violations that have been meted out on the population. Russia has openly vowed to veto any referral decision against Syria in the Security Council. In this way, the ICC should not be blame for not acting strongly over other states that are outside Africa!. It is also vital to point out that it is in Africa that grave violations of human rights occur. For the ICC to be seized of jurisdiction, the crimes committed must rise to the level of war crimes, crimes against humanity, genocide or aggression. Focusing on cases in nations outside of Africa is sometimes difficult for the ICC because the magnitude of crimes that are often committed are not widespread and deadly or at the very least not carried out so openly as they are in Africa. By virtue of the grave atrocities and egregious violations that is common place in Africa; it is inescapable that the ICC will just have to lay emphasis on Africa. Furthermore, many other nations where egregious war crimes have occurred are not signatories of the Rome Treaty thus omitting them from the reach of the ICC. For example countries like , Palestine, Israel, Iraq, Syria, North Korea and the USA are not signatories to the Rome Statute. Since the ICC does not have jurisdiction over some of these key nations and regions where egregious violations are ongoing, the court is left without option but to focus on Africa where 70 percent of the states have ratified the Statute. There are also many Africans working in the Court itself which is a clear manifestation that the allegation of African bias is far-fetched. About thirty-three percent of the ICC judges come from African nations and notably among them is a Kenyan judge. Also, the most crucial official of the court, the ICC prosecutor, is an African. More important still, contrary to indictments or awareness of critics, investigations in nations other than in Africa are presently underway, including preliminary investigations in five non-African nations: Afghanistan, Columbia, Georgia, Honduras, and Korea. In sum therefore, even though I certainly agree that the ICC is far from being a perfect institution, it is however fair to assert that the ICC is a relevant institution as it seeks to provide deterrence to dictatorial leaders and criminals whose orders and leadership result in the perpetration of mass rape, murder and crimes against humanity. That is what the ICC stands for! If the ICC involves itself in Africa, it is because African governments are unwilling to ensure accountability of due processes at the domestic level or are unable to do so. The ICC is a court of last resort.! Thus, despite these attacks on the ICC, it is vital for states in Africa to do a thorough reflection on the accusations that are been forwarded and not to follow hook, line and sinker the precedent of Kenya to withdraw from the International Criminal Court. After all, if every African State withdraws from the ICC, what other mechanism can be trusted to provide punitive redress when things go wrong at the domestic level or when grave violations are meted out on the innocent population? From the above points raised, it stands to reason that the ICC is certainly not as “biased” as critics have made us to believe!. “This academic article is written by RASHID DUMBUYA an International Human Rights Lawyer and a practicing Barrister and Solicitor from the Republic of Sierra Leone. Rashid holds a Bachelor of Arts Degree as well as an LLB Degree from Fourah Bay College University of Sierra Leone and has worked for the Special Court for Sierra Leone and the UNDP Access to Justice Office in Freetown. He is currently an LLM Candidate at the Center for Human Rights, University of Pretoria, South Africa.”
Posted on: Thu, 12 Sep 2013 08:49:10 +0000
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