Africa and the ICC: where is our honour?
Published: 30 Oct 2013
By: Achieng Maureen Akena
(This blog first appeared in Politico.It has been republished with permission from the author.)
The debate around the International Criminal Court (ICC) in Africa is one that has polarised the continent, with equal-opportunity-mud being slung at African countries and the African Union (AU), as well as the ICC and the international community.
Among the myriad of arguments, the international community is accused of imposing its notions on Africa and having little regard for Africa’s sovereignty. The AU argues that the Court has become a tool of Western experimentation of justice on the continent and that the international community has ignored its priority concerns over peace and security in the region. On the other hand, justice fundamentalists argue that Africa did in fact refer itself to the Court in line with individual countries’ obligations under the Rome Statute, and that nothing should subvert the course of justice. They accuse Africa of reinforcing its tendencies towards impunity.
Moderate voices have accorded responsibility to all sides. They argue that although Africa is not the only place where bad things happen, all the situations currently under investigation by the ICC – DRC, Uganda, Central African Republic, Mali, Sudan, Libya, Kenya and Côte d’Ivoire – are in Africa. This lends some credence to Africa’s cry about prosecutorial bias. The neutrals also point to some of the weaknesses in the UN Security Council (UNSC) referral system.
The UNSC referred the cases of Sudan and Libya to the ICC, but 3 of the Permanent Members (Russia, China and USA) have not committed themselves to the Rome Statute. This, they cite as a further demonstration of bad faith on the part of some of these countries in that they are willing to impose a judicial system on countries which have not signed up to the treaty, but not on themselves or their allies. However, despite this perceived bias, they point out that there are millions of African victims of atrocities who stand little or no chance of getting justice, alluding to the lack of real and tangible commitment by African countries to anti-impunity.
Focusing on Africa
Africa’s angst over international justice goes back to 2008 when concerns arose regarding the application of justice and, in particular, universal jurisdiction by the international community. At the time, alarm was raised regarding the selective use of the principle by European Courts which had pending warrants of arrest against Government officials in Rwanda, Chad and DRC. The AU meeting of Ministers of Justice termed it “the increasing nature of indictments issued in Non-African countries against African personalities”. This matter escalated on the arrest, and subsequent transfer to France, of the Rwandese Chief of Protocol who was on an official trip to Germany. This, despite a call by the AU for a moratorium on the execution of such warrants pending negotiations, and allegations by Rwanda that such warrants were merely retaliatory following Rwanda having investigated and exposed France’s own role in their genocide.
Since then there have been several AU decisions that, among other things, requested the UNSC to defer the indictment of the Sudanese President Omar Hassan Al Bashir on grounds of regional peace and security concerns. They also supported Kenya’s request for a deferral, endorsed Libya’s request to try its own citizens and condemned hasty prosecutorial conduct with regard to the situation in Libya; and refused to extend cooperation to the ICC as far as the Sudan and Kenya cases were concerned. In addition, the AU refused to allow the ICC permission to establish a liaison office in Addis Ababa, requested AU institutions to document and publicise Africa’s actions in situations of mass atrocities, and called on members to balance their obligations to the AU with their obligations to the ICC. They also started a process to extend the jurisdiction of the African Court to include international crimes.
Until July 2012, the decisions of the AU had spanned a wide range of concerns that Africans had in relation to the application of international criminal justice. However, there was a marked change in May 2013 when it seemed the AU decided to focus almost exclusively on the Kenyan situation. The decision from the AU Extraordinary Summit held 2 weeks ago in Addis was even more bizarre as it reached conclusions that are not within the realm of the AU to actualise.
The Regional Integration Agenda?
How did the AU get from an arguable position of threat to regional peace and security, to the untenable position where they now find themselves in, issuing idle threats? African countries know that there is no mechanism that allows for one treaty body to respond to threats from another treaty body, to which there are no linkages beyond a couple of shared Member States. Therefore, this latest decision coming out of the Extraordinary Summit on Africa’s Relationship with the ICC is ridiculous at best, and at the very least, is a blow to Africa’s positioning in global politics. It purports to reinforce the position that although Africa sits on the UN Security Council (currently represented by Rwanda and Togo), holds the largest voting block at the ICC’s Assembly of State Parties (ASP) and has strategic international partnerships, the continent is still unable to reinforce her collective standing on the global agenda. Is it acceptable that after 50 years of the Union, Africa still does not know how to utilise the appropriate channels of international diplomacy to ensure an effectual voice in the international arena? Perhaps instead of all the resources going into crafting a Vision 2063, Africa and the African Union should just get serious!
If we cut out all the noise, who then can we honestly say is undermining the African agenda? Is it really the so-called West with their purported neo-colonialist agenda, or is it countries like Kenya that will spend more money subverting the course of justice than on an integrationist agenda? Estimates on the amount of monies Kenya has spent since 2010 on shuttle diplomacy from country to country seeking support to avoid the ICC prosecutions, far outweigh the 0.6% contribution Kenya makes to the current $278 million AU budget.
To be taken seriously AU Member States must begin to show real commitment to regional integration by supplying sufficient resourcing for and independence of their own institutions at national, regional and continental levels. They must begin to give due credence to the purpose for which the AU exists and therefore not allow the agenda and credibility of the Union to be undermined by one or a few States with personal questionable motivations. They must act towards the realisation of the principles and tenets on which the Union was built which recognise the aspirations of African peoples for justice, peace and human rights. Most importantly, Africa must begin to act strategically and in concordance at international fora. Too many times we have heard repeated, even in AU decisions, that Africa neither fronts nor sustains, in a coordinated manner her agenda at international negotiations whether on climate change, trade, peace and security or international justice. In fact, Africa’s reaction to developments in international justice on the continent has neither been consistent nor streamlined. A clear illustration was the decision by ECOWAS in July 2012 to refer the situation in Mali to the ICC despite the existing decisions of the African Union on non-cooperation with the ICC. We have also too many times heard stories about African state officials spending their time at these international meetings enjoying the luxury of fancy hotels and on shopping sprees instead of with the politics and mechanics of the meetings they are attending. Our member states are better known for grandstanding with lofty public statements than for working the system with equal tenacity and vigour.
Achieng Maureen Akena is a human rights and democracy practitioner with several years of experience working on Africa in growing democracies as well as in post conflict states. She has worked with the AU,UN and with local and international civil society organisations. She is a lawyer by profession and writes from Nairobi.