The Turbulent Relationship between International Criminal Court and the African States - Case Study Example

THE TURBULENT RELATIONSHIP BETWEEN INTERNATIONAL CRIMINAL COURT (ICC) AND AFRICAN STATES Name: Course Professor’s name University name City, State The turbulent relationship between International Criminal court (ICC) and African states In this essay, we will explore the current rocky affairs between the ICC and Africa Union (AU) and target to demystify a number of charges levelled against the court in its quest to carry out its mandate especially on cases within African states. The paper comes at a critical time in the life of the ICC as it is currently grappling with near walk out of the African member states. Some other interesting happenings in the last two years was the nomination of Fatou Bensouda, an African woman from Gambia, to head of the ICC prosecution team. It had been hoped that under her stewardship, the relationship between the two bodies will be rekindled. In sharp contrast of the heralded expectations, major supra national bodies in Africa such as the Africa Union and more notable East African Legislative Assembly, have continuously pushed for mass withdrawal from the Rome Statute (which led to the establishment of the Court). The position taken by these bodies has its bearing in the opinion of complementary; which provides for the primary jurisdiction role of prosecuting grave crimes and play a prominent role in fighting impunity. However, it is vital for such demand for regional and national mechanisms is followed by progressive, tangible and genuine actions with the aim of bringing the perpetrators of crimes against humanity to book. The International Criminal Court: The Rome Statute The Rome Statute that led to the creation of the International criminal court was adopted at a conference held on 17th July, 1998, in Rome, Italy. Senegal became the first African country to ratify the Rome State, and thereby a member of the ICC, a move that was heralded as a move towards an era of international peace (International Criminal Court (ICC), 2002). By the year 2012, the Rome Statute had been ratified by 121 countries. Among these, there were 33 African member states, 18 countries from Eastern Europe, 18 from Asia- pacific, 15 from Western Europe, and 27 countries from Latin America (Meernik, 2005). From the statistics above, it is evident that member states from Africa constitute the largest share of parties to the Rome statute and thus their role in solidifying up the Rome Statute judicial system over the years. The obvious expectation is that these statistics automatically translate into a wonderful support for the international court system in Africa. However, the reality is that there is a sustained discord trend between ICC court and the African State members. We can conclude that high numbers of African countries suggest a quantitative support to ICC rather than qualitative one. While African Member States were supportive at the beginning, the relationship deteriorated in 2008 when President Al Bashir of Sudan was indicted by the ICC court. Bashir was charging as an individual bearing the greatest responsibility for war crimes committed in Darfur region (Schabas, 2010). Perceptions of the ICC in Africa Despite of the numerous atrocities committed in diverse geographical regions of the world, it is quite interesting to note that the prosecutorial interventions have been largely focussing on Africa: DRC, Central African Republic, Kenya, Ivory Coast, Libya, and Sudan. ICC has begun handling these cases as a result of referrals by UN Security Council, submission by the particular countries, and in some cases self-initiation by the ICC prosecution office. Nevertheless, the recent perceptions of the prosecutorial interventions by ICC in Africa have formed a distorted belief about the whole idea behind the creation of the international body. It’s good to point out that, the reality of the matter is that ICC and Rome Statute was not imposed to any country, therefore African member states ratified it voluntarily and thus becoming subjects to the ICC jurisdiction (Meernik, 2005). By the looking keenly on the Individual cases one might conclude with a rational explanation about the extent of engagement of the ICC. From an objective point of view, it is impossible to certainly conclude that the ICC was established with the main purpose of handling cases from African states. On the other hand, one could point out a number of international forces that have led to the cases being referred to the ICC, most notable being the UN Security Council. Notwithstanding the prism one opts in viewing, there is a growing perception within a number of the African governments that the ICC prosecutor has been selective in handling cases submitted to the pre- trial chambers especially those from outside the Continent. This equally viewed as injustice towards the African states. With crimes against humanity and other atrocities being committed across the globe, the African Union, notes that ICC is keen in following up those that occur within its member states, where such states are arguably weaker economically as compared to the economic, financial and diplomatic might of the worlds’ superpower. According to some of the states’ officials, there is an engrained injustice in the actions of the international criminal court whose elementary purpose is to pursue justice for victims of gross humanity violations regardless of their geographical origin. When confronted on the about points, protagonists of the ICC tend to indulge in highly incoherent and ultimately convoluted arguments as to why there are no cases outside Africa. This clearly put the moral integrity of the ICC into question with the accusation being that the some of the cases they are handling are not driven by the global need for justice, rather a political appropriateness that is has common interest with its main financiers. In most cases, against the perception that is reigning amongst its opponents, the ICC has failed to produce a strong case, which in the end can demonstrate that the court is not for selected marginalized few but rather for all irrespective of their economic and political might. In order to arrest the continued discord within Africa, regarding its operations, ICC should try and clear this perception coupled with a reinforced concrete action aimed at demonstrating their impartiality. The African Rationale of criticising ICC The ICC seeks to prosecute those individuals who bear the greatest responsibilities of atrocities and crimes against humanity, this involves those accused of instigating, financing and executing crimes of a particular gravity. The ICC however, can only start investigations and later prosecution when such cases if the concerned country is a State party to ICC or when such an issue has been referred to the ICC by the UN Security Council. The dilemma in most of this cases is that majority of the suspects usually hold high political office and are usually called upon as leaders to engage each other in the peace process aimed at signing of peace treaties, and ultimately ensure its full implementation. A particular case is the indictment of El Bashir, where the ICC pre-trial chamber has issued a warrant of arrest against the president. However on 5 March 2009, through a Communique PSC/PR/Comm. (CLXXV), the AU Peace and Security Council (PSC), lamented the timing of the indictment saying that it came at the wrong time since Sudan at a stage of attaining lasting peace, and the main player in this efforts being the president himself (Murithi, 2013). In addition to this, the PSC also pleaded with the UN Security Council to put into exercise its power and call for postponement of the arrest of Bashir (African Union Peace and Security Council. , 2009). The AU through the PSC was making the submission due the fragile nature of the peace process in Darfur, however there were hidden political reasons behind since arrests of sitting president in Africa world set a bad president that eventually leads to a significant arrests of other sitting heads of states in Africa. In one the AU protest on the arrest of Bashir would appear like saving the face among the African leaders but also one that hopes to keep the ICC off such a remit in the administration of Justice in the African content. President Bashir has successfully visited a number of African states such as Kenya, chad and Djibouti without arrest- a clear sign of non- compliance of the nations who are signatories of the ICC (Schabas, 2010). In January 2012, the AU Heads of States summit meeting in Addis Ababa, Ethiopia resolved non- cooperation with the ICC, and any country which fails to do so will attract sanctions by other members. Another interesting case pitting the African Union is that of the indictment of the Kenya’s Fourth president Uhuru Kenyatta and his deputy William Samoei arap Ruto. The two were indicted by the former ICC Prosecutor Lois Moreno Ocampo, on crimes against humanity committed during and after the December 2007 election. During the skirmishes over 1,500 people were killed and over 200,000 people were displaced (Murithi, 2013). Unlike the El Bashir the Kenyan suspects were indicted prior to their election to office but still AU has asked for the referral of their cases until at least after their presidency. According to the opponent countries in Africa, a court that fails to exercise its authority universally does deserve the name of court. This is more so if its jurisdiction does not apply to certain counties that have not ratified the statutes that bore the court. Surely such discrepancies undermines the international justice and reverses the progress achieved in constraining the agendas and powers enjoyed the powerful nations, especially on the political responsibilities on their actions on weaker nations’ populations (African Union, 2013). The Office of the ICC prosecutor: appointment of Fatou Bensouda. According to commentators and the observers, first Prosecutor Moreno Ocampo was enthusiastic in initiating prosecutions for African states, without undertaking primary investigations in Sri Lanka, Chechnya, Gaza and Afghanistan due to the “political sensitive nature” of such actions. In cases where investigations were carried out such as Korea, Honduras Kosovo and Colombia, the preliminary investigations were deliberately designed to be essentially a path of dismissal on technicalities. Such attitude towards African conflicts and non-African and the resultant discrepancies in the investigations was not lost among the African leaders. (Meernik, 2005) In fact it fuelled further allegations of the thin veil practised by the prosecutor while handling pro- western agenda, thus being viewed with suspension (Solomon , 2013). With such allegations levelled against Ocampo, the Assembly of state parties appointed a former Gambian Minister, Fatou Bensouda, as a successor to Ocampo. As an assistant to Ocampo, only few critics believed she will forged her own path by digress from footsteps of Ocampo. It remains apparent that the appointment of Bensouda was a calculated move aimed at appeasing the discontent among the African states. Appoint an African at the helm of the prosecuting body was aimed at advancing the agenda that the ICC is not being used to propagate the neo-colonialism western ideologies. The Way Forward for ICC in Africa Generally, in order to mend the splitting ties, Bensouda needs to start negotiating with key African countries especially the top AU leadership. She needs to swiftly keep off from the confrontational stance depicted the AU and ICC as was evident during the Ocampo regime. Other that negotiating with the AU leaders, Bensouda should engage civil rights groups, eminent African personalities in order to convey the message regarding the mandate and general objective of the court (Kathleen , 2013). First both AU and ICC share a common mandate of addressing peace and ensure justice prevails at all times. The only difference being that the AU is a political body while the ICC is and international judicial body. In this commonalities and some divergence the two bodies are challenged to ensure accountability for the past violations, and atrocities. By its nature, the AU will always settle first to a political solution. Such approaches will put more emphasis on political reconciliation and peace making. On the other hand, should pursue international prosecution, as stated in the Rome Statute in a fair manner. Although their mandates are different, the AU should support ICC interventions to support rule of law and accountability, on the other hand the ICC has the responsibility of realizing that it is operating in an international political setting- and on certain occasions it needs to align its prosecution alongside the political solutions such as peace and reconciliation campaigns. The ICC need also to embrace political lessons in regards to its past transgression thereby changing its prosecution orientation. This involves sequencing peace processes in a manner permitting the carrying out of the peace processes. Conclusion The ICC court is a last resort for prosecuting crimes of any nature, therefore each country should put into actions its individual judicial system, thus taking precedence in carrying out national criminal jurisdiction. Although the Rome Statute takes note of the threat posed by the political crimes on the security, peace and well- being of the society, the ICC processes fail to elaborate its efforts in advancing peace beyond the pronouncing of sentences on the accused found guilty. In Africa, it is evident that the ICC has majorly focused on exercising its mandate on criminal justice without in actions of consolidating peace. A reason why international justice is still being viewed with suspicion according to the African perspective. References African Union Peace and Security Council. , 2009. Statement on the ICC arrest warrant against the President of the Republic of Sudan, Omar AlBashir, PSC/PR/Comm.(CLXXV). 5 March, Addis. African Union, 2013. AU Extraordinary Summit on ICC. Addis ababa, s.n. International Criminal Court (ICC), 2002. Rome Statute of the International Criminal Court. Preamble. The Hague: ICC.. The Hague: ICC.. Kathleen , A. D., 2013. American Society of International law. [Online] Available at: http://www.asil.org/blogs/african-union-adopts-resolution-regarding-international-criminal-court-october-12-2013 Meernik, J., 2005. Justice and peace? How the International Criminal Tribunal affects societal peace in Bosnia.. Journal of Peace Research. Murithi, T., 2013. The African Union and ICC embattled relationship. The instiute for Justice and reconcilliation. Schabas, W., 2010. The International Criminal Court. The International Criminal Court nternational politics of mass atrocities: The case of Darfur. Solomon , A. . D., 2013. The AU’s Extraordinary Summit decisions on Africa-ICC Relationship. [Online] Available at: http://www.ejiltalk.org/the-aus-extraordinary-summit-decisions-on-africa-icc-relationship/ Read More