By Thomas Verfuss and Rosemary Tollo
A major controversy is brewing behind the scenes in The Hague over whether or not Sidiki Kaba, the Senegalese Justice minister, should serve an unprecedented second term as president of the Assembly of the States Parties (ASP) to the International Criminal Court.
Several diplomats have pointed to the ongoing African Union summit in Addis Ababa as the time and place where the issue of a possible second term for Kaba should be resolved, but others are vehemently opposed to the idea. AU summits, like the ASP, can be occasions of controversy around the ICC. Previously, some states tried to use the AU to push for a collective withdrawal of African states from the ICC.
An email enquiry to Kaba’s office about his possible candidacy had not received a response by the time of going to press.
Although the established tradition since the Rome Statute, which creates the ICC, came into force in 2002 is for a single term, the treaty and ASP rules are silent on the possibility of a second term. The proposal for a second Kaba term has been launched by a few states, but envoys for and against the idea declined to speak on the record, citing the sensitivity of diplomatic relations.
During the first two years of his tenure after his election in New York in 2015, Kaba was often criticised for being too absent and not available enough; for running away from ASP meetings for business in Dakar; and for not fulfilling the oversight function over the organs of the court properly. Some African ambassadors to The Hague criticise him for not caring about Africans dismissed during the “ReVision” project that restructured the ICC Registry.
Perceptions changed dramatically during last year’s ASP session in The Hague, when many feared that the announced withdrawal of Burundi, The Gambia and South Africa from the ICC could create a momentum; and that other African states would follow, leading to a “mass withdrawal”. Kaba kick-started dialogue to rebuild trust between African states on the one hand and the ICC organs and European states on the other. That relationship had been strained by a number of conflicts over the years, some linked to the Kenyan cases before the ICC as well as the earlier indictment of Sudanese President Omar al Bashir.
President Uhuru Kenyatta and deputy president William Ruto argued that their daily presence at trial proceedings in The Hague during trial, as prescribed by the Rome Statute, could not be required because of their official duties back home. There were also issues about recanted evidence — a matter related to witness interference that posed a big problem for the Office of the Prosecutor in the Kenya cases. More recently, in 2015, South Africa got into trouble with the ICC after it failed to arrest al Bashir when he attended an AU summit in Johannesburg.
Confronted with the request for “leave of absence” for political leaders, European diplomats argued that “the rules of the game should not be changed while the game has already started”. Civil society representatives also found it inappropriate that the ASP, the political body within the Rome Statute system, intervened while an issue was sub judice – a matter under consideration by the judges that should not be interfered with.
European diplomats were also critical of African demands to completely exempt sitting heads of state from the ICC’s jurisdiction. Plans to give criminal jurisdiction to the African Court on Human and Peoples’ Rights were sometimes seen as an attempt to shield African leaders from prosecution at the ICC. For Kaba, one principle is not negotiable: a fundamental principle that all states parties to the Rome Statute have subscribed to: there is no immunity for the highest political and military leaders.
Some European diplomats believed that the Africans made the ASP lose a lot of time with their “selfish” issues. On the other hand, many Africans felt that their continent was “targeted” by the ICC as all trials till now have placed African suspects in the dock. Many Africans feel “not listened to and humiliated” by the ICC, which they perceive as “discriminatory and serving up selective justice”, Kaba told Journalists For Justice in an interview last year. “Many Africans perceive the ICC as justice by the white,” Kaba said.
The atmosphere needed to be improved, among other things, through a special session on AU-ICC relations at last year’s ASP session where frank discussions took place during a meeting from which the media were excluded at the very last moment. After that, quiet diplomacy was adopted and continued. Kaba created a multilateral “dialogue committee” within the ASP to this end, and encouraged states supporting the Court to use all their influence in bilateral contacts.
Since last year, The Gambia and South Africa have retracted their announced withdrawal — The Gambia following a change of power through peaceful presidential elections and South Africa after domestic legal proceedings.
One Hague-based diplomat says: “Kaba has done a lot, a lot, a lot, through patient talking, the African way, without showing off. He should be allowed to accomplish this process to avoid getting the court into confusion” again. But another diplomat, the ambassador of an important African country, says: “Kaba has done nothing for Africa and he is the worst president the ASP ever had.” One angry ambassador suspects “France of being behind this” because Paris wants to secure its influence at the ICC.
Kaba has walked a diplomatic tightrope in defusing tensions in ICC-AU relationships, especially given his previous role as a former President of the Fédération internationale des ligues des droits de l’homme (FIDH), which led some to expect him to take a more partisan public pro-ICC stance. Although Kaba released a statement in 2015 urging states to fulfill their obligations around the time al Bashir was visiting South Africa, he did not offer any visible support when the ICC prosecutor issued a statement calling for the arrest of al Bashir while attending the inauguration of Ugandan President Yoweri Museveni in 2016. As recently as March 2017, his failure to speak out when al Bashir attended the Arab League Summit in Jordan, a state party to the ICC, meant that the arrest warrant in force against him did not occupy the attention of states parties.
Kaba, who speaks flawless French, never converses in English, confounded friend and foe by insisting on the presence of a translator in every meeting he held with states parties. The presence of an advisor, who acted as a translator even in highly confidential bilateral meetings frustrated any attempts to cut high-level personal deals.
A civil society leader in Africa said Kaba, “Unlike his predecessors, Kaba came late and left early to the ASP in 2016” and in 2015, he arrived late for the meeting and appeared pressed for time.
Kaba has retained his ministerial position even after election as ASP President, raising questions about his availability and commitment. There are additional anxieties about France’s influence and growing resentment of small states wielding undue influence on the international stage. The Senegalese are considered a mafia that takes up strategic international positions to push the interests of the French. This perception reportedly undermined the candidacy of Senegalese Abdoulaye Bathily for the African Union chairmanship, which went to Chadian Moussa Mahamat Faki.
“He has done nothing so outstanding as to warrant a second term,” the civil society leader added. Kaba took over as ASP president pledging to prioritise relations between Africa and the ICC, cooperation with the court, complementarity, and universality of the Rome Statute. Since his ascension to the ASP presidency, only Palestine and El Salvador have ratified the Rome Statute.
A second term at the ASP presidency would be unprecedented. Until now, the position has been rotating among the UN regional groups: ASP presidents have come from Asia, Latin America, Western Europe, Eastern Europe and Africa. Now it would be Asia’s turn again, and the Asian member states have unanimously proposed a veteran of international criminal justice: Kwon O-gon of South Korea, who has been a judge at the International Criminal Tribunal for the former Yugoslavia for many years, sitting on high-profile trials, like the case of the former president of Serbia, Slobodan Milosevic.
Kwon would be the first ASP president with years of practice at international criminal courts and tribunals. He has the reputation of being committed to the cause of international criminal justice and very conscientious on facts and law.
The Bureau of the ASP has not decided yet whether to formally endorse the Asian proposal and to recommend Kwon’s election to the plenary in December. Some diplomats argue, though not doubting Kwon’s capacities, that Kaba would be better placed to bring the healing process between AU and ICC to a good end. “We need this Court,” Kaba told Journalists For Justice last year.
This report was first published in the regional weekly, TheEastAfrican.