By Kwamchetsi Makokha
Envoys from African nations have put the International Criminal Court in the dock over claims of bias and unfair treatment in an attempt to explain treaty withdrawals by South Africa, Burundi and Gambia.
The three shock withdrawals from the Rome Statute, delivered through notices to the United Nations Secretary-General last month, inflected conversations at the 10-day annual Assembly of States Parties, which ended at The Hague on Thursday. The withdrawals have not only punctured the momentum to turn the ICC into a universal court but also raised fears of other states following suit as Russia, which signed the Rome Statute in 2000, withdrew its signature before it could ratify the treaty.
An unprecedented open session by the management body of the ASP, known as the bureau, last Friday focused on the relationship between Africa and the ICC under the theme, ‘Resuming dialogue to win the fight against impunity’.
A motley 30 diplomats, attorneys-general, justice ministers and civil society activists argued their case during the three-hour session at the World Forum, building a broad and shaky consensus on the need for dialogue to achieve reversals on the three withdrawals while averting future treaty walkouts.
South Africa, the first country to serve notice of withdrawal on the UN Secretary-General, appeared to soften its stance after Justice Minister Tshililo Michael Masutha said: “We have no reason to celebrate our decision to withdraw from the Rome Statute.” He explained that South Africa was struggling to strike the right balance between peace and ending impunity, hours after visiting the ICC President Silvia Fernández de Gurmendi.
The High Court and Court of Appeals in South Africa this year ruled that the government was wrong in failing to arrest Sudanese President Omar el Bashir when he attended an AU summit in Johannesburg in 2015. A third legal battle was looming at the South African Constitutional Court after the government appealed the court’s decision, but withdrew it after pulling out of the ICC.
Uganda’s attorney general, Mr William Byaruhanga, insisted that justice should not be sacrificed at the altar of peace and vice versa.
The decision to issue an arrest warrant for Mr Bashir in February 2009 marked a turning point in ICC-Africa relations, with many countries on the continent being cited for failing to execute the warrant of arrest against him.
Burundi’s ambassador to The Hague, Ms Vestine Nahimana, complained that the ICC had launched investigations into atrocity crimes in her country without giving her government the first bite at the cherry. In April this year, ICC Prosecutor Fatou Bensouda announced that she was launching a preliminary examination into Burundi following reports of atrocities in the conflict following the decision by President Pius Nkurunzinza to seek a third term in office.
“Burundi and some African countries believe that the ICC has not given a lot of attention to the principle of complementarity. A preliminary examination should not be an opportunity to obtain information of complementarity,” she said.
Some African states have asked the ICC to investigate crimes on their territories, and the fact that they were complaining about the court signaled the existence of a problem.
No representative of the Gambia, home of Ms Bensouda, spoke to explain the incongruous reasons for its withdrawal from the Rome Statute – reported as the ICC’s failure to arrest former British Prime Minister Tony Blair for crimes against humanity.
An African diplomat with knowledge of behind-the-scenes consultations, who declined to be named because he is not authorized to speak on behalf of his mission, said the withdrawals were only a red herring for the real demand, which is immunity for heads of state.
Some African states have been demanding a pound of flesh, close to the heart of the ICC, in the form of immunity from prosecution for sitting heads of state and senior government officials. Article 27 of the Rome Statute states that official capacity shall not exempt a person from criminal responsibility and is a critical pillar of the court’s founding treaty.
“Africans believe that there is selective justice at the ICC,” said Mr Toni Aidoo, the Ghanaian ambassador to the Netherlands who coordinates the continent’s member states of the ICC.
Dr Korir Sing’oei, a legal advisor to Kenya’s deputy president, said although the country was a firm believer in the international system of justice, he added that its experience as a situation country had shaken its faith in the court.
Kenya’s Deputy President William Ruto and journalist Joshua arap Sang’s cases at the ICC were terminated in April this year for lack of evidence, but the court noted what it termed as “intolerable levels of witness interference and political meddling”.
Charges against President Uhuru Kenyatta and former head of the civil service Francis Muthaura were withdrawn after the Prosecutor failed to obtain cooperation from the government in collecting evidence.
Kenya’s was still aggrieved about what Dr Sing’oei termed as “subcontracted investigations and use of partisan intermediaries to conduct investigations, when no exculpatory facts were considered”.
He accused the court of carrying out politically motivated investigations in charging six individuals for widespread violence following the election in 2007.
Although the ICC, just like the UN, has gone where it is most needed, its traditional defenders conceded that its enthusiasm to investigate cases in Africa was not matched by similar action elsewhere.
African envoys savaged the United Nations Security Council’s double standards in referring cases to the ICC while some of its members remained outside the Rome Statute system. The United States, Russia, China are not states parties to the Rome Statute.
Mr Njonjo Mue, programme advisor for Kenyans for Peace with Truth and Justice coalition, argued that the real issue was the not ICC but the imbalance of power relations that allowed non-member states to refer cases to the ICC, and failing to deserving ones like Syria. “We need to direct firepower at the real source of the problem: we should not treat a brain tumour by amputating a leg,” he said adding that the conflict ought to be referred to the International Court of Justice.
“All Africans have at one point or another in our lives been insulted, discriminated against or victimized because of the colour of our skin… but when this has happened, we have not walked away from the problem. We have confronted it as members of the human family. All African ICC member states must do the same,” he concluded.
Perceptions of bias were quickly conceded by a cross-section of diplomats representing European and South American nations as well as civil society leaders from across the globe, who also acknowledged that the Rome Statute system was not perfect but called for dialogue on amendments.
Envoys from African nations that traditionally support the ICC were measured in their speeches, with Nigeria, Senegal, Mali, Ghana and Tanzania calling on states that had withdrawn from the Rome Statute to reconsider their decision.
Dr Athalia Molokome, the Botswana attorney general, called for continued dialogue on how to end impunity, which she said was a collective responsibility for all of nations, not Africa alone, in an effort to make the ICC universal.
Resentment was rising, especially among diplomats from Francophone countries in Africa, who argued that 20 on the continent that are not members of the ICC were wielding overweening influence over the 34 that had ratified the treaty to withdraw from it.
Hackles were raised at the opening of the 15th ASP when the keynote speaker, Prince Zeid al Hussein, the UN High Commissioner for Human Rights, dared states that were threatening to leave the ICC to hasten their exit.
The decision to withdraw from the Rome Statute, said AU senior legal officer Adewale Iyanda, was a manifestation of growing impatience some members were having with the lack of consideration of some of their concerns.
Civil society leaders from around the continent were blunt in their retorts, with Mr Mue asking: “Is it that the ICC targets African states or African victims are privileged to be able to approach a court they helped to create when justice is not available in their own countries?”
Sentiments against adopting a soft approach to the African states’ demands were expressed by the European Union, Japan, Australia, Argentina, Mexico, South Korea and Venezuela, whose ambassadors pointedly asked withdrawing nations to reconsider their decision.
Costa Rica’s ambassador to The Hague, Mr Sergio Gerardo Ugalde Godínez, warned against engaging in destructive criticism that would erode the court, and instead called on nations to stand together to do the “right thing”.
“The international community cannot start a fire and then say wants to be the fire brigade,” said Belgian ambassador Chris Hoornaert, who also faulted African states for not using existing channels to propose amendments to the Rome Statute.
Chino Obiagwu of the Nigerian Coalition for the International Criminal Court observed that there was need to improve fairness in the international political order, but added that international criminal justice is about human beings. “What do these human beings want? Should they wait until we have fairness in the world order to get justice?” he asked.
In an impassioned five-minute closing oration, in French, ASP President Sidiki Kaba said: “It is important not to play politics with justice, especially when issues that touch on humanity. We can transform a crisis into an opportunity if we are committed. Let us get back to the spirit of the Rome Statute,” he said as he referred the discussion to a meeting of the ASP’s bureau for further debate.
This year’s ASP accredited 410 delegates from 88 state parties, 72 delegates from 18 observer states, 223 representatives of international and non-governmental organisations and 78 journalists.
Besides the plenary sessions that discussed withdrawals, state cooperation with the ICC and the court’s budget, there were over 50 side events tackling accountability for crimes in Syria, lessons learnt from the Kenya cases, protection for victims and human rights defenders and complementary trials such that of former Chadian dictator Hissène Habré.
This story was first published in TheEastAfrican