By Judge Eboe-Osuji
They centrally concern the unfortunate perception that Africa had become the only region in which the ICC feels free to exercise its jurisdiction, riding roughshod over the sensibilities of some Africans and their leaders, in a manner that is not done elsewhere. That sentiment comes through in the following passage from an AU press statement: “On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations. While similar requests (for deferral of prosecution) by other entities were positively received, even under very controversial circumstances, neither the ICC nor the UNSC have heeded the repeated requests that we have made on a number of cases relating to Africa over the last seven years”, Ethiopian Prime Minister who is the Chairperson of the African Union said in a statement to his colleagues. “Our goal is not and should not be a crusade against the ICC, but a solemn call for the organisation to take Africa’s concerns seriously”.
But, this complaint will always be a double-edged one. It is difficult to see African victims of atrocities sharing the concern that the ICC may not be taking ‘Africa’s concerns seriously.’ The Court’s purpose is to ensure accountability for gross atrocities expressed in certain proscribed crimes which have preyed upon Africans in very recent memory. Africans were victims of apartheid (in South Africa), of genocide (in Rwandan), of war crimes (in Sierra Leone), of sundry manner of crimes against humanity committed during periods of violence that followed African elections. Current affairs on the African continent show that the kinds of conflicts that result in these atrocities are still not a thing of the past. As long as that remains the case, the plight of current or prospective African victims remains a critical ‘African concern.’
The fact that these atrocities also occur elsewhere (as they no doubt do) is entirely immaterial to the need for justice at the instance of African victims of such atrocities. The apparent resolve of the Prosecutor to prosecute as much of these atrocities as she can, and to issue statements that aim to stave them off, are the clearest proof of her taking ‘African concerns seriously’ on behalf of the ICC. She deserves much credit, not denigration.
As I have written in a previous opinion, African leaders are fully entitled, out of humanitarian instincts and as caring leaders in their broader membership of the international community, to insist that victims beyond the African region must also be permitted the benefits of the ICC as a foremost instrument of accountability for the harm that victims of atrocities suffer wherever they are. But that is a reason to strengthen and support the ICC, not worry its confidence, so that it can fulfil that mandate. As outlined in an earlier opinion, there is much value that the ICC holds for Africa, particularly in contributing to the pacification of an environment in which available resources and energy are not devoted to armed conflicts but to economic development and to the general improvement of conditions of life.
This is an excerpt from presiding judge, Eboe-Osuji’s, public redacted version of the decision on defence applications for judgments of acquittal in Ruto-Sang case.