Is ICC recolonising Africa?
During their campaign in Kenya’s last general election, President Uhuru Kenyatta and his deputy William Ruto accused some Western powers of using the International Criminal Court (ICC) to stop their bid to get into State House.
Though both have pledged full co-operation with ICC even after their victory, on the sidelines they have not stopped their scathing attacks. They are now using their state powers to lobby African leaders through the African Union to refer the continent’s cases to their respective countries or else AU withdraws their ICC membership.
The intense lobby recently prompted AU Chair Prime Minister Hailemariam Desalegn of Ethiopia to lead African leaders in a denunciation of the ICC for its alleged racism and selective justice.
PM Desalegn said the ICC was head-hunting African leaders for persecution, and called it a racist institution.
Addressing an AU Summit in Addis Ababa in Ethiopia in late May, Desalegn said, “The African leaders have to come to a consensus that the process the ICC is conducting in Africa has a flaw.
“The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting.”
The AU is not alone in its dissatisfaction with the ICC. Many critics argue that the ICC employs double standards, hypocrisy, racial stereotyping, and national and personal agendas in executing its cases.
British lawyer, Courtenay Griffiths – who was lead defence counsel for Liberia’s deposed leader Charles Taylor – penned a critique of his country’s support for the ICC.
He argued that, “Britain’s support for the International Criminal Court is wrong and undermines its credibility in African countries.”
He fingered Henry Bellingham, the British Minister for Africa, as a close friend of Simon Mann; the mercenary who tried and failed to orchestrate a coup in Equatorial Guinea. He said Bellingham publicly supported the ICC and yet he did not say a word about Simon Mann.
Griffiths’ attack continued: “The court acts as a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their power and influence, particularly in Africa.”
His opinions cannot be wished away, as myriad of independent thinkers share the same perspectives.
In their book “Courting Conflicts? Justice, Peace and the ICC in Africa”, authors Nicholas Waddell and Phil Clark of Oxford University lamented that the fact that the ICC has focused so overwhelmingly on African situations prompts questions about why the gaze of the international criminal justice falls in some places and on some people and not others.
The court’s focus on Africa, they argue, has stirred African sensitivities about sovereignty and self-determination – not least because of the continent’s history of colonization and a pattern of decisions made for Africa by outsiders.
“So far, ICC has indicted 27 Africans from seven countries – what lies behind their focus on Africa?” they ask.
This has been seen as a means of destabilising the African continent – something which then makes the political domination of Africa and the subsequent exploitation of African minerals and resources that much easier.
As the African Union has put it: “The abuse and misuse of indictments against African leaders have a destabilising effect that will negatively impact on political, social and economic development of member states and their ability to conduct international relations…”
While contributing to the same book, Albie Sachs, a Justice of the Constitutional Court of South Africa, wrote that the Western powers are using ICC as a means of destabalising Africa, make political domination and exploit the continent’s resources.
The ICC has experienced difficulties in navigating the political terrain of Africa. Many of these difficulties emanate from the inherently emotive, morally fraught and politically charged nature of the atrocities that the ICC was established to address, Justice Sachs wrote.
“Further features of the ICC’s mandate, such as its minimal temporal jurisdiction and reliance on the support and cooperation of nation states – both domestically and internationally – limit the court’s room for manoeuvre.
“The ICC also confronts immense practical and logistical problems of conducting investigations and engaging with affected populations in highly insecure environments,” Justice Sachs argues.
The authors are not saying Africans should act with impunity. No. rather they are asking for justice regardless of colour.
The Rome Statute provides that individuals or organisations may submit information on crimes within the jurisdiction of the ICC. These submissions are referred to as “communications” or complaints.
By February 2006, the ICC prosecutor had received 1 732 communications alleging crimes worldwide. As of October 4, 2007 the Office of the Prosecutor had received 2 889 communications about alleged crimes in at least 139 countries. As of 1 February 2006, 60 percent of the communications had originated in just four countries: the USA, UK, France and Germany.
As of July 2009, the prosecutor reported that his office had “received over 8 137 communications from more than 130 countries”.
Yet despite all these complaints, the ICC has started investigations into just seven countries, all of them African: Uganda, DRC, Central African Republic, Sudan, Kenya, Guinea, Côte d’Ivoire and Libya; and has indicted 27 people, all of them again Africans.
When asked in 2005 about the fact that the ICC’s only referrals up to then had been African, Judge Goldstone replied that “it is a coincidence that the first four cases have come from Africa”.
Chief Prosecutor Fatou Bensouda, the Gambian lawyer who took over from Argentinian Luis Moreno-Ocampo in mid-2012 as Chief Prosecutor at the ICC, is undertaking preliminary investigations into alleged crimes committed in Afghanistan, Georgia, Colombia, Honduras and Korea.
Bensouda has also opened investigations in two more African countries, Guinea and Nigeria.
The ICC was set up as a court of last resort, the place to which victims can turn when all other courts fail — when their judiciaries fail, when their governments fail.
On its 50th anniversary, the AU is once again marching in lockstep with the powerful, arm-in-arm with alleged perpetrators of crimes against humanity, and against Africa’s citizens and victims.
“The International Criminal Court will not be reacting to African Union resolutions,” ICC spokesman Fadi El Abdallah told AFP after the pan-continental bloc urged the Kenyans' trials be taken out of the ICC's hands.
Forty-three African countries have signed the ICC's founding Rome Statute and 34 have ratified, “making Africa the most heavily represented region in the court's membership,” the ICC admits.
Prof Mahmood Mamdani, a Ugandan academic, says: “The fact of mutual accommodation between the world’s only superpower and an international institution struggling to get its bearings is clear if we take into account the four countries whereby (by 2009) the ICC had launched its investigations: Sudan, Central African Republic, Uganda and DRCongo. All…are places where the US has no objection to the course charted by the ICC investigations.
“In Uganda, the ICC has charged only the leadership of the (rebel group) LRA but not that of the pro-US government (headed by President Yoweri Museveni). In Sudan, the ICC has charged officials of the Sudan government. In DRCongo, the ICC has remained mum about the links between the armies of Uganda and Rwanda – both pro-US – and the ethnic militias that have been at the heart of the slaughter of civilians.”
Prof Mamdani notes further: “The ICC’s attempted accommodation with the powers that be has changed the international face of the Court. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. Even then, its approach is selective: it targets governments that are adversaries of the US and ignores US allies, effectively conferring impunity on them.”
This is supported Jacqueline Geis and Alex Mundt who contend in “The Impact of timing of international criminal indictments on peace processes and humanitarian action”, that “although the ICC was established as an impartial arbiter of international justice, both the timing and nature of its indictments issued to date suggest that the intervention of the ICC in situations of ongoing conflict is influenced by broader external factors”.
Critics argue that the ICC has emerged as a de facto European Court funded by Europe, directed by Europe and focused almost exclusively on Africa. this serves Western political and economic interests in Africa.