By Omar Bah
The Gambia is among just three African countries to express interest in supporting the United Nations draft articles on the prevention and punishment of crimes against humanity. The other two are Sierra Leone and South Africa.
Even with the Rome Statute in place, crimes against humanity have not yet been codified in a dedicated treaty of international law.
The draft articles on the prevention and punishment of crimes against humanity were drafted by the International Law Commission (ILC) between 2013 and 2019 and then transmitted to the UN General Assembly’s Sixth Committee, the UN’s principal forum for the consideration of legal questions.
After a period of political stalemate in the Sixth Committee, discussions on the draft articles were revived in late 2022 and state delegates met in New York in April last year to “exchange substantive views” on all aspects of the draft articles. The Sixth Committee gathered in New York once more this April to continue discussing the draft articles before proceeding to decide in October on whether to move discussions into formal treaty negotiations.
Melissa Hendrickse, a legal adviser on racial justice and international criminal law at Amnesty International, said the draft articles are significant in that they propose to close a gap in the architecture of international criminal law.”
She said Africa has the largest number of states that have yet to expressly weigh in on whether the Draft Articles should advance to negotiations.
“Indeed, only Sierra Leone, South Africa, and Gambia have shown interest in the document. Countries like Ghana, Angola, Mozambique, Guinea-Bissau, São Tomé and Príncipe, Equatorial Guinea, Cabo Verde, Senegal, and Tunisia only voiced their support. This means they have not submitted their written opinion.
Further, countries including Zambia, Malawi, Lesotho, Namibia, Botswana, Benin, Liberia, Ivory Coast, and Uganda, have yet to take an official position on this matter.”
The draft treaty aims to address crimes against humanity, which include acts like murder, torture, enslavement, persecution, rape, and other forms of sexual violence committed as part of widespread or systematic attacks on civilian populations.
“A crimes against humanity treaty would in fact be distinct from the ICC’s Rome Statute. It would deal with the responsibility of states to both prevent and punish the crimes unlike ICC that deals with individual criminal responsibility.”
The treaty is expected to open the door for states to hold other states accountable through the International Court of Justice if those obligations are not met.
African advocates, activists and experts suggest such clauses could be another trap for African countries to be used by powerful economies.
In 2013, when the then Kenyan President, Uhuru Kenyatta and his Deputy (now) President of Kenya Dr. William Ruto were indicted before the ICC for the alleged role in the post-election violence, Kenya pressured the African Union to attack the ICC and even incited the call by African states to withdraw from the ICC.
Many African leaders argue that the ICC disproportionately targets African countries and leaders, reflecting a perceived bias or neo-colonial agenda. They argue that the ICC infringes national sovereignty by interfering in what should be a matter between domestic legal jurisdictions, hence taking away countries’ autonomy. These criticisms have been further compounded by concerns relating to effectiveness and efficiency, with slow proceedings, high costs, and few convictions since its inception.
