Africa: Towards the Decolonisation of the International Criminal Court

By Mkhosana Bingweni & Everistor Benyera

IN PRESENT South Africa, the International Criminal Court has achieved new topical prominence and political currency.

The opposition Democratic Alliance has successfully sued the ruling African National Congress government to withdraw its tabled proposal to withdraw from the ICC.

The legalised political dispute dates back to the time the ANC Government resisted massive pressure and refused to arrest Sudanese president Omar Al-Bashir, who is wanted by the international court for crimes against humanity, in 2015.  The ANC and many other African liberation movements accuse the ICC of being used by Western powers to persecute African heads of state while ignoring crimes against humanity perpetrated by Western leaders such as Tony Blair and George Bush in their 2003 invasion of Iraq. Historically, the International Criminal Court came into effect on 1 July 2002 when the Rome Statute entered into force. The majority of founding member states were from Africa.

This is indicative of the confidence and value that Africa placed on the institution.

Situated in The Hague, the Netherlands, the court has jurisdiction over the four most heinous crimes; genocide, war crimes, crimes against humanity and the yet to be defined crime of aggression.

In principle, the ICC is the court of last resort and it complements national judiciaries using the Principle of Complementarity.

Victims in Africa, who suffered the crimes that fall under the court’s jurisdiction, were obviously elated when the court became functional.

For them and the various non-governmental and civic organisations that work with them, the day had arrived when impunity in Africa would be a thing of the past.

In this contribution, we argue that instead of being a solution to the perennial challenge of gross human rights violations in Africa, the ICC fast became part of the problem, willingly or unwillingly so.

Today the African Union is divided into three camps over how the continent should deal with the court.

There are those who believe that the court is a colonial tool used by the West to continue the subjugation of Africa by, inter alia, using the continent as a guinea pig in the development of international criminal law jurisprudence and precedence.

Zimbabwe, Sudan, Rwanda and Kenya belong to this group. Then there are those countries like Botswana, who believe that the court is doing a good job of prioritising Africa.

The third group of countries believes that the court is a good court doing a bad job and deserves to be supported.

The ICC is supposed to be at the zenith of international law, a place where equality is supposed to be one of the pillars of this multilateral justice system.

We note that nowhere in this world is inequality more apparent than in the international justice system, especially through the work of the ICC.

We say so because to date, Africa is the ICC’s sole client. This gives a lot of credence to views that the court’s form of international justice is rooted in inequality before the law.

The militarily and economically powerful states, through the United Nations Security Council, make the rules yet are unaccountable to the same laws which they make.

This demonstrates what Ali Mazrui called the apartheid of the international system as led by Europe and America. Take the case of the United States of America.

It is not a signatory of the Rome Statute, yet can initiate the referral to the court via the Security Council.

The US, therefore, holds others accountable to standards that do not apply to its citizens. This is double standards, more so, given that the US, formally withdrew from the ICC on 6 May 2002, having previously signed the Rome Statute.

The US enjoys impunity while the rest of the Global South endures targeting, it seems.

That the ICC has Africa as its sole client is worrying at various levels. That all of the court’s cases to date deal with Africa has been described as targeting by those opposed to it and prioritisation by those in favour of the move.

Whether it is called targeting or prioritisation is largely academic, the point is that this development has several consequences for Africa. These will be unpacked in the next section.

Africa at the receiving end of the ICC

The first consequence is confusion. The following questions illustrate the level and extent of the confusion.

What, if any, is the motive of the ICC in targeting Africa? What should victims do, more so given the ICC’s over-judicialisation and inaccessibility to those most in need of it? One fact that is undisputable is that the formation of the ICC did very little, if any, to deter impunity in Africa.

Consequently, African dictators now view themselves as victims of western imperialism.

The result is the continuing of injustice for the victims and the resilience of impunity.

Thus, human rights abuses in Africa have been turned into a political matter by African leaders thereby taking the matter away from the legal threshold where it belongs into the political arena.

The real victims of crimes against humanity in Africa remain unprotected by the ICC, while a few isolated dictators are put on the run.

There is what can be termed the instrumentalisation of the ICC’s failure to open cases elsewhere including Iraqi, Pakistan, Afghanistan, Syria, Libya, or Colombia, etc. This is used by African leaders opposed to the court as evidence of its deliberate targeting of Africa for political reasons. Resultantly and regrettably, victims of the crimes that fall under the court’s jurisdiction no longer have confidence in the ICC.

Another result of the targeting of Africa by the ICC is the polarisation which has happened right from the African Union to national levels.

The Bashir visit to South Africa illustrates how the ICC/Africa case is divisive. One undisputable result of the ICC’s behaviour in Africa is that it has squandered a propitious moment for it to be a pro-victim, anti-impunity international organisation which aligns itself with other likeminded United Nations organisations such as the World Health Organisation.

Instead, the ICC behaves more like the erstwhile World Bank and the International Monetary Fund, organisations that are part of the African problem, yet masquerade as providing solutions to African problems.

The ICC confirms rather than confronts the asymmetrical centre-periphery structuring of the present world.

At another level, the ICC’s conduct in Africa is proof of what decolonial thinkers term coloniality of power. Postulated by Peruvian sociologist and humanist Anibal Quijano, coloniality of power denotes the resilient European colonial power structures which outlived formal colonialism and continue to operate in Africa today. How is the ICC linked to colonialism and coloniality?

Most of Africa’s dictators, militiamen and despots are puppets of Euro-American interests.  They enjoy the protection of the west while they deploy the ICC, with the assistance of their handlers, to discipline their political opponents at home.

We are writing here about Uganda’s Yoweri Museveni, warlord Joseph Kony and the role played by Ugandan oil reserves in securing Museveni’s ‘security from ICC indictment’.

This is termed the weaponisation or instrumentalisation of the ICC and must be condemned as it subordinates legitimate claims by victims.

We argue that pursuing those who commit international crimes is not good enough as it is akin to treating the symptoms and not the dieses.

What about also perusing those who facilitate and benefit from such international crimes and the handlers of these dictators, despots and militiamen?

The ICC rendered itself irrelevant to Africa when it squandered its credibility as an impartial adjudicator in matters that concern the most heinous international crimes. Credibility is central in any legal institution and process.

Without credibility to Africans, the ICC became part of the African problem.   

What Must Be Done

What then needs to be done? Hope is not is not lost as there are practical steps that can be taken to salvage the situation.

We will discuss these suggestions at two levels; the ICC level and the AU level. Some of these suggestions are not new and have been put forward before.

At the ICC level, the court must work with and through national legislations.

This addresses the sentiments that the court is alien and located in the west far away from where the crimes were committed.

Secondly, the court should open regional and national offices just like other United Nations agencies such as the World Health Organisations which have office ‘on the ground’.

Thirdly and obviously, the ICC needs to get other ‘clients’. The prosecution of just one westerner would go a long way in dispelling sentiments that the court was created solely for Africans.

Fourthly, we suggest that the role of the Security Council be revised in a way that renders the court autonomous from the Council.

The mixture of the political (Security Council) and the legal (the ICC), is undesirable and part of the problem with the court.

Another suggestion is for the court to allow for political processes such as those proposed by the AU in the Libyan case under Gaddafi.

In other words, the court must allow for African mediation and other processes to be tried first as a way of moving away from prosecutorial obsession.

The need for the court to acquire universal jurisdiction, i.e., for the most powerful as it is for the weakest, cannot be over emphasised.

In the absence of the above, then Africa must leave the ICC en masse. How does Africa leave and will that not leave a gap in international justice?

Not with the capability that Africa recently demonstrated when it dealt with the case of former Chadian dictator Hissene Habre.  The Habre case is a step in the right direction and must be lauded.

We argue that this is a propitious moment for Africa to continue with the momentum set up by this case.  -Mkhosana Bingweni is a senior researcher at the University of the Witwatersrand. Professor Everistor Benyera is a senior lecturer of politics at the University of South Africa.

Additionally, the example demonstrated by the Economic Community of West Africa States in dealing decisively with Yahya Jammeh attests to Africa’s renewed commitment at upholding the rule of law and is a welcome departure from the continent’s previous non-committal stance as witnessed in the 2010 disputed Ivory Coast election results between Laurent Gbagbo and Alassane Ouattara.

In conclusion, we are inclined to argue that the ICC needs Africa more than Africa needs the ICC.

We say so because without the ICC, Africa can develop its own capabilities, mechanisms and institutions to deal with the issue that the ICC currently covers. Yet without Africa, the ICC will be out of a job.

Forward with African solutions for Africa’s problem. In other words, Africa must leave the ICC en masses and now, that is if the ICC remains an avenue for coloniality of power in Africa.

*Mkhosana Bingweni and Everistor Benyera write from South Africa

March 2017
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