A major highlight of the recently held 28th ordinary session of the AU summit in Addis Ababa, Ethiopia was the adoption of a “strategy” for the withdrawal of AU member states from the International Criminal Court (ICC/ the Court). This development has continued to generate comments and debates within the international community largely because African States constitute the largest regional bloc in the roster of States Parties to the Rome Statute, the treaty that formally established the ICC in 2002. This is not the first time that the future of the ICC would be threatened. In October 2016, Gambia suddenly withdrew its membership of the institution, citing irreconcilable differences. South Africa, Burundi and Kenya had earlier indicated their plans to do the same. Calls for the withdrawal of African States from the ICC are not likely to abate in the coming months and years as long as the penchant for criminal impunity among African leaders subsists and remains unchecked.
This article will address the claim that the ICC is biased against Africa, a claim that has been vociferously and vigorously deployed in support of the AU’s adoption of the earlier mentioned “withdrawal strategy.” The article commences with a brief overview of the ICC, its raison d’etre, and its zero tolerance for criminal impunity which is very evident in its jurisprudence. This will aid our understanding of the background against which the current crisis of confidence between the AU and the ICC is set. We then critically investigate the allegation of bias which is the subject of this article. As we shall see, the bias theory appears somewhat exaggerated and largely unfounded. We conclude the article with an advocacy for greater cooperation in the global campaign against criminal impunity.
Background to the ICC
Although it is true that the ICC was formally established in 2002 following the entry into force of its founding document- the Rome statute that year, global efforts to tackle international crimes and their perpetrators clearly antedate the Rome statute. In fact as far back as 1948, in the aftermath of World War II, the United Nations (UN) General Assembly had, while adopting the Genocide Convention, mandated the International Law Commission (ILC) to “study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions.” Article VI of the Genocide Convention itself envisaged the establishment of such an international judicial organ to prosecute persons accused of the international crime of genocide.
Earlier in 1945, widespread support had been expressed by the international community for the allies’ prosecution of major World War II criminals at Nuremberg and Tokyo. In fact, most of the principles of international criminal law enshrined in the Rome Statute of the ICC have their provenance in the jurisprudence of the International Military Tribunals which sat at Nuremberg and Tokyo from 1945 to 1946. This is evident when the principles of international criminal law contained in the Rome Statute are juxtaposed with those expressed in the Charters and jurisprudence of the Nuremberg and Tokyo Tribunals.
Following the successes recorded by the Nuremberg and Tokyo tribunals, efforts were made to set up a permanent International Criminal Court to prosecute perpetrators of international crimes in future, however plans in this direction were put in abeyance throughout the cold war period for obvious reasons. At the end of the cold war, ad hoc international criminal tribunals were established for Yugoslavia (ICTY) and Rwanda (ICTR) by the UN Security Council to prosecute persons responsible for the perpetration of grave violations of international humanitarian law in those countries in the early 1990s. Like the Nuremberg and Tokyo tribunals, most of the principles established in the Statutes of the ICTY and the ICTR subsequently found their way into the Rome Statute that established the ICC.
Thus the establishment of the ICC in 2002 was not an isolated or spontaneous incident. It was essentially a culmination of efforts which started long before then. Previous initiatives to curtail international crimes and bring perpetrators to justice through the establishment of international criminal tribunals show that long before the establishment of the ICC, there had been a global consensus on the need to establish mechanisms to punish perpetrators of international crimes. And from all indications that consensus is still existent. Nothing affirms this more than the speedy adoption and ratification of the Rome statute by an overwhelming majority of States such that its entry into force was made possible less than four years after its adoption.
The foregoing background became necessary to debunk claims that the ICC was specifically set up to further western parochial interests or actualize a racist agenda. Such sentimentalist propaganda has been used for years to hoodwink a gullible public and frustrate the global campaign against criminal impunity. As we have shown above, far from being a mechanism set up to advance the racist agenda of any super power, the ICC was the last in a series of similar efforts, in the past, to bring perpetrators of international crimes to justice.
Having established the above, we must now turn to critically assess the claim that since its establishment, the ICC has not operated impartially and appears to have, in fact, developed a prosecution policy targeted solely against Africa and her leaders. How genuine is this claim? And to what extent has it negatively impacted the mandate of the ICC to end criminal impunity around the world? To these and other issues we now turn.
Is the ICC Biased Against Africa?
The ICC, it is often said, focuses too narrowly on Africa and persecutes the continent and her leaders while ignoring atrocities committed by leaders in the west. This narrative raises two questions. First, is there a deliberately articulated policy of the ICC to solely focus on Africa and ignore perpetrators of international crimes in other parts of the world? Second, are the persons indicted by the ICC for international crimes in Africa, at least prima facie culpable? In other words, are there pieces of evidence- direct or circumstantial- that strongly and truly suggest their culpability? Or has the ICC simply been concocting charges against these African leaders? These two questions must be adequately addressed in order to justify or disprove the above mentioned argument by the leaders of the AU.
To answer these questions, there is a need to examine the docket of the ICC, its founding documents, and its criminal prosecution history to establish whether it has indeed been biased in the conduct of its work. The first three cases at the Court were referred to it by African States in whose territories international crimes had occurred. These were Uganda (2004), Democratic Republic of Congo (2004), and Central African Republic (2004). A self-referral from Mali also came to the Court in 2012 concerning war crimes committed by certain persons in the country’s northern region. The ICC did not initiate the above mentioned cases proprio motu. Rather, the cases were referred to the ICC by the concerned African States themselves. The ICC simply acted on the requests of the affected states. It is difficult to see how the ICC, whose current Prosecutor is an African woman from Gambia, could be justifiably accused of meddlesomeness or bias against Africa in the instances cited above.
The cases concerning Libya and Sudan were referred to the Court by the UN Security Council acting pursuant to its chapter VII powers under the UN Charter, and in accordance with Article 13(b) of the Rome Statute. All member states of the United Nations know that the Security Council can make such referrals under the Charter. The ICC cannot be blamed or accused of bias for acting on a prosecution request emanating from the Security Council. Article 13 (b) of the Rome Statute allows the Court to act on such a request.
The Court’s prosecutor has initiated investigations and proceedings proprio motu in three instances only, that of Kenya in 2010, cote d’ivoire in 2011 and Georgia in 2016. Thus, of the cases so far handled by the Court, only three have had investigation, and prosecution launched into them by the ICC proprio motu in accordance with Article 15 of the Rome Statute. And as we have seen, of these three, only two- Kenya and cote d’ivoire- involve African States. All other African cases before the Court were indeed referred to it by the authorities of the concerned African states themselves. Where then is the so called bias against Africa?
The Rome Statute which is the founding document of the ICC contains no provision that remotely suggests that the Court was solely established to prosecute African leaders. Similarly, no official document of the ICC discloses such an agenda. There is thus nothing in the founding and working documents of the ICC or its criminal prosecution history to remotely suggest the existence of a policy against Africa, or a policy to solely focus on Africa. Similarly, a look at the Court’s docket discloses no bias or prejudice in its work since investigation into its first set of cases commenced in 2004. The allegation that the ICC is biased against Africa, or is deliberately targeting Africa, therefore appears unfounded, to put it mildly.
One other thing that that appears to have escaped the attention of the ICC’s traducers is that the Court’s jurisdiction in respect of international crimes is supposed to be complementary to national jurisdiction in respect of such crimes. Article 17 of the Rome Statute clearly states that a matter shall not be admissible before the ICC “if the case is being investigated or prosecuted by a State which has jurisdiction over it.” The jurisdiction of the Court is only triggered where the State which has original jurisdiction over an international crime “is unwilling or unable genuinely to carry out the investigation or prosecution.” Thus, where a State voluntarily and responsibly initiates investigations into and prosecutes perpetrators of international crimes within its territory, there will be no need to refer the matter to the ICC, neither will there be any need for the ICC to initiate investigation and proceedings proprio motu in respect of such a case.
In fact, the complementarity provision, as codified in Article 17 of the Statute is sufficient to quell any doubts as to the sincerity of the framers of the Rome Statute, and reassure skeptical stakeholders that there is no pre-conceived agenda against any country or continent. The complementarity principle empowers African countries, if they so desire, to take full responsibility for the prosecution of perpetrators of international crimes found within their borders. The problem however seems to be that in many cases, the absence of the requisite political will makes it practically impossible for patrons of international crimes to be successfully prosecuted by national courts in Africa.
There is therefore nothing wrong with the Rome Statute, neither is anything wrong with the ICC. Rather the problem seems to be with Africa itself. Rather than belabouring the issue of bias, the question African States should be asking is whether international crimes have indeed been committed in the States being investigated by the ICC? If they have, what steps have the concerned African States themselves taken to establish the culpability of the perpetrators and get them prosecuted in their own national courts? More often than not, the answers to these questions will reveal an astounding lack of political will on the part of the concerned States to investigate and bring their culpable nationals to justice. It is precisely this gap in international criminal prosecution that the ICC was created to fill.
The Bashir Connection
It is widely known that the ICC’s indictment of Omar Al Bashir of Sudan for international crimes committed in the Dafur region of Sudan since 2002, and the subsequent international warrant issued by the Court for his arrest, is the main reason why the AU and some of its member states are threatening to pull out of the ICC. The fear appears to be that if Bashir, a sitting President could be indicted by the Court, and an international arrest warrant issued against him, any African leader could be similarly indicted and prosecuted in future. This is a possibility that many African leaders consider infra dignitatem.
Bashir is accused of being responsible for genocide, crimes against humanity, and war crimes committed in Dafur since 2002. His case was referred to the Court by the Security Council of the UN in 2005. The appropriate question to ask is not whether he is a sitting Head of State but whether he indeed committed these crimes. The right approach is to consider whether there are indeed pieces of evidence that strongly suggest his culpability. The charges against Bashir were not frivolously concocted. He was indicted only after a thorough preliminary investigative process by the Court’s Prosecutor. Authorization for a warrant of arrest against Bashir was issued by the Pre-trial chamber of the Court on the basis of preliminary evidence that strongly suggests his culpability in this case. Indeed, the Court is structured in a way that ensures that charges are brought against persons accused of international crimes only after a thorough and objective investigative process. Rather than seeking to impugn the Court’s credibility by accusing it of ignoring atrocities committed by western leaders, the logical thing to do is for African leaders to advise Bashir to surrender himself to the Court in order to establish his innocence, if indeed he is innocent. The same goes for all other persons that have been indicted by the court but who are currently at large.
It is grossly inappropriate for African member states of the ICC, all of which were fully aware of the Court’s zero tolerance for the so called “head of state immunity” at the time of ratifying the Rome Statute, to now turn round to latch on to the same “immunity” argument in their desperate bid to protect Bashir and future perpetrators of international crimes from the ICC. Article 27 of the Rome Statute is emphatic in its denunciation and rejection of “official capacity” as a bar to prosecution. And ratification of the Rome Statute by States presupposes their voluntary recognition and acceptance of this clause. In any case, the Pre-Trial Chamber of the ICC has settled the immunity controversy in The Prosecutor v. Omar Hassan Ahmad Al Bashir when it stated that “immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court.” “This” the Court added “is equally applicable to former or sitting Heads of States not parties to the Statute whenever the court may exercise jurisdiction.”
We have already argued elsewhere that the so called head of state immunity against prosecution has largely lost its traction and tenability as a defense before international courts. The statutes and jurisprudence of the ICC and the adhoc international criminal tribunals set up after the cold war confirm this. The non-recognition of official capacity as a bar to prosecution by the various international courts and tribunals is crucially important to the success of the global campaign against criminal impunity. In the case of Africa, it is well known that non- recognition of official capacity is perhaps the only way to hold current and former leaders accountable for their actions in office. As long as official immunity is unduly venerated, it will always be difficult to bring perpetrators of international crimes to book, since most perpetrators are usually high ranking government leaders or officials.
International Criminal Law must be applied to the Al Bashir case, just the same way it would be applied to any other case before the ICC. The era of impunity is over, and perpetrators of international crimes must be made to face the full wrath of the law in order to serve as a deterrent to potential international criminals. The earlier this is accepted by African leaders the better for the continent. Although we hold no brief for the ICC, it must be emphasized, in the interest of global efforts to stem the tide of international crimes and bring perpetrators to book, that there is no bias against Africa in the work of the ICC. It is Africa that should get her act together. If African States are proactive, responsive, and responsible in their approach to international criminal justice, the ICC would have no reason to prosecute any African.
Conclusion
Thus far, we have examined the much touted claim that the ICC is biased against Africa. We have established that nothing in the Court’s criminal prosecution history or any of its official policies justifies this claim. Rather, global efforts to contain international crimes and bring perpetrators to justice antedate the adoption of the Rome Statute. The ICC is, in effect, a culmination of age-long efforts to institute a permanent mechanism for the trial and prosecution of international criminals. Contrary to what has been widely circulated in the media therefore, the ICC was not set up to advance or foster any racist agenda. The sincerity of the framers of the Rome Statute is particularly evident in the complementarity provision enshrined in Article 17 of Statute. This provision allows parties to the Rome Statute, if they so desire, to genuinely prosecute perpetrators of international crimes within their own borders without having to refer such matters to the ICC. In fact, as we have seen above, the jurisdiction of the ICC is not triggered until it is evident that a State is unwilling or unable to genuinely investigate and prosecute international criminals found within its own borders. Incidentally, most African States have been unable to muster the requisite political will to bring their nationals engaged in international crimes to justice.
For now, the ICC appears to be the only institution capable of actualizing the global vision for an effective punitive mechanism for perpetrators of international crimes. Rather than seeking to pull down the ICC therefore, we should encourage it to fully deliver on its mandate of ending criminal impunity around the world. The fact that most of the cases before the Court, at the moment, are connected with Africa does not necessarily detract from the Court’s credibility, neither does it imply that the Court will not spread its dragnet to other parts of the world in future. The work of the ICC is an ongoing one, and those who have escaped investigation and prosecution today may be investigated and prosecuted tomorrow. The global resolve to punish perpetrators of atrocity crimes, as expressed in the letter and spirit of the Rome Statute, must not be allowed to wane. Happily, a number of African countries, including Nigeria, have publicly reaffirmed their commitment to the vision of the International Criminal Court. Hopefully, the African Union itself will ultimately back down from its withdrawal agenda.
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