Surely in a world where there are so many armed conflicts, the ICC is not short of possible situation countries outside of Africa. The world’s first and only permanent international criminal court has a full plate and must choose to eat it evenly.
So many people have raised questions regarding the issue of some Western leaders that they suspect of having committed international crimes in other states. The most talked about is former president George Bush Jnr. Well the observations of those who advocate for the court to investigate and possibly indict Mr Bush seem clever and rational, at least from a moral point of view or rather for political correctness. However the ICC is not a court of morality nor is it a court of political correctness. It may help us a great deal to repeat the ICC’s modus operandi here so that we can move on with the discussion with clearer heads (albeit with some bitterness at what some see as a biased mandate and structure of the court). The ICC takes actions with due consideration for its principle of complementarity (in short it means the ICC steps in when and where the state concerned is incapable of or unwilling to prosecute those suspected of committing international crimes). The following lines are key to clarifying much of the brilliant points and genuine concerns raised by critics of the court: According to the Rome Statute (the treaty that established the ICC), the ICC can open an investigation (has jurisdiction) against a subject (call it state, individual, group etc), under one of the following three conditions (often referred to as the trigger mechanisms for ICC jurisdiction): 1: If the state in question is a party to the Rome Statute. 2: Self-referral, that is, if the state refers the situation to the court (whether the state is signatory or not). 3. If the state or situation is referred to the court by the UN Security Council. Please note that anyone of the permanent five members of the Security Council can veto (block) any draft UNSC resolution. The third trigger mechanism is what allows President Bush, a man that some see as “a potential or suspected war criminal”, to escape the international criminal justice system as we have it today. The United States, as a veto holding and permanent member of the UN Security Council, can veto any draft resolution that threatens to refer Mr Bush to the ICC. That said, the US can, if it so pleases, allow a resolution to pass at Council for the purpose of referring its former president or any of its officials to the ICC. The US could also unilaterally refer itself (invoke ICC jurisdiction) and have the court investigate and possibly prosecute any of its citizens. The current trigger mechanisms of the ICC (call them unfair and biased) limit the jurisdiction of the ICC as far as law and procedures are concerned.
The best step that critics of the ICC can take is to call for an amendment to the Rome Statute to allow the court a robust and universal mandate so that suspected war criminals, wherever they are on the face of the earth, will have no place to hide. This is the surest way to extend the arm of international justice and leave no room for impunity even for the most powerful players on the world stage. This sounds rather shortsighted because any amendments to the Rome statute will need an overwhelming political support from the states parties (a condition that may not be easy to get).
This is by no means a justification of the African Union’s position vis-à-vis the ICC going after the Presidents of Sudan and Kenya. Those bent on committing grave international crimes against their fellow human beings have little space to hide. Pulling out of the Rome statute is certainly not a panacea to the standoff between the African Union and the ICC. The UN Security Council reserves the singular honor and privilege to refer any situation to the ICC for investigation and possible prosecution irrespective of whether the state/country/ region is a signatory to the Rome statute or not. Even when the temptation to commit crime is too appealing, the surest way of keeping out of trouble with the ICC lies in not committing crimes that fall within the jurisdiction of the court.
The indictment of Laurent Gbagbo of the Ivory Coast was perceived as a bold move on the part of the ICC, but it was not entirely inconceivable by the Excellences and Majesties because Mr. Gbagbo was already out of their club. However, the indictment of President Omar al-Bashir of Sudan was probably construed by the strongmen and women of Africa as a one-off event. For the ICC to refuse to drop or defer charges against Uhuru Kenyatta after his election as president of Kenya, was really a provocation to the high and mighty of Africa. The politicians must have wondered what will happen next as they see the ICC as depraved and daredevil. This bold stance by the ICC necessitated an extraordinary summit of the African Union Assembly of Heads of State and Government in Addis Ababa on 11 and 12 October, 2013. Let us meet in Addis Ababa and send a clear message to the ICC that Excellencies and Majesties must be left alone, the leaders said to one another. Surely this is how an association should respond whenever its members perceive that their common interests are at stake. The high and mighty of Africa have a good foresight and are smart enough to take collective decisions and actions to not only further but also preserve their common interests. If there is any group of people on the continent who are headless and do not know how to protect their common interests, it is the “common” people and not the leaders. Time and time again the assembly of heads of state and government have shown the citizens of Africa that the organ is purely to serve the interests of the leaders alone. However, the October 2013 summit did not proffer tangible mechanisms that could effectively shield politicians from the long arm of international justice. The appearance of the Kenyan president, Uhuru Kenyatta before the ICC this month lends credence to the court and highlights the ill-intentions of the AU vis-à-vis the ICC’s efforts to end impunity in Africa. It would have been so wonderful to see the AU assembly of heads of state and government move with similar speed and determination whenever their civil population is faced with crises such as armed conflicts, flood, famine and diseases such as ebola. It may serve a useful purpose if the “ordinary” citizens of the African Union have their own organ within the AU. This will enable the citizenry to protect and further their common interests by themselves just as the strongmen and women have been doing for themselves. Who says the assembly of heads of state and government is not hardworking when they are busy serving their own interests?
African solutions to African problems: What about that?
The notion of African solutions to African problems has not delivered any tangible results thus far. The African Union would have had a feather in its cap and be respected if the leaders had not excluded themselves and their top lieutenants from the jurisdiction of the fledgling African Court of Justice and Human Rights. At the AU Summit in Malabo, Equatorial Guinea in June this year, the leaders did not hesitate to grant themselves immunity from the court’s jurisdiction should they commit grave international crimes against their people. Credible reports from the summit say journalists and other independent observers were asked to leave the summit hall as the leaders were about to cast their votes on the question of granting themselves immunity. Nobody, including African leaders, wants to do something shameful in the full glare of the media; hence the decision to cast the votes behind closed doors. This sends a clear message to the ICC that the AU leadership is not yet ready to embrace justice and shun impunity. Even though the chief legal adviser to the AU came out to clarify that African leaders and their senior officials are granted immunity only while they are in office, he did not explain when and how justice will be delivered by the African Court of Justice and Human Rights in cases where suspected criminals (who have immunity from the jurisdiction of the court while they are in office) are bent on dying in office. For this reason, the ordinary child, woman and man on the African continent, need the ICC as the only credible supranational court when it comes to fighting impunity and ensuring justice for victims of international crimes in Africa. You and I are not concerned with being prosecuted nor are we interested in being granted immunity from prosecution because we do not contemplate committing crimes. It is therefore logical for one to ask why African politicians are obsessed with being granted immunity from prosecution by the African Court of Justice and Human Rights if they are not contemplating committing crimes against their people.
Until and unless the African Union has a credible criminal justice system that can end impunity and bring leaders to account, the need for the ICC to intervene will always be there. While it is easy for those who are not victims of international crimes to dismiss the work of the ICC as witch hunt, those who suffered untold violence, brutality and mass murder do welcome justice irrespective of who or where that justice is coming from.
The author Joseph Mendy is a blogger and student at the Graduate School of International Studies, University of Trento, Italy.
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