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Sunday, January 24, 2021

Pulling out of the ICC is a non-starter

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When The Gambia voted against the AU’s proposal, it did so not because the chief prosecutor of court is a Gambian. The government, one could believe, was influenced by its conviction that although the ICC is far from being that perfect institution that was envisaged at inception, Africa will be better off with an ICC hanging over the heads than without it. In fact, the feeling of the government was summarised by President Jammeh himself when, upon his return from Addis, told journalists at the airport that, “the issue of arrest warrants [for a sitting African president] started with Al-Bashir [of Sudan] and has now come to Kenya and the question for that is why now?” 

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The ICC was established as a permanent, independent institution to prosecute individuals who have orchestrated and executed the most serious crimes of international concern, including war crimes, crimes against humanity and genocide. The Rome Statute, which entered into force on 1 July, 2002, is explicit on the role of the Court in exercising a criminal jurisdiction over perpetrators of these crimes. African countries were actively involved in the creation of the ICC and played a crucial role at the Rome conference when the Court’s statute was drafted and adopted. To date, Africa represents the largest regional grouping of countries within the ICC’s Assembly of State Parties. 


Since 2002, all of the eight cases that the court has set out to investigate are in Africa. They are Sudan, the Democratic Republic of the Congo, Uganda, the Central African Republic, Kenya, Libya, Côte d’Ivoire and Mali. In other parts of the world, such as Afghanistan and Gaza, the court’s intervention has been limited to only preliminary investigations. The prospects for prosecution are remote despite the undisputed commission of crimes that fall within the jurisdiction of the court. 


The ICC, therefore, gives an impression that sub-Saharan Africa is the only region where the most serious crimes of concern to the international community are committed. This has led the AU to become wary and critical of the functioning of the ICC. In the case of Sudan and Kenya, the heads of state in office are amongst the indictees. The AU wants the trials against leaders in charge to be put off, but its communication to the UN Security Council to that effect has not been responded to. The relationship then degenerated.  


The former and first chief prosecutor of the ICC had a particularly embattled relationship with the AU. When Ocampo’s tenure expired in 2011, Fatou Bensouda, a Gambian woman who had been Ocampo’s deputy for the previous nine years, was overwhelmingly supported  by the AU to become the first ever African chief prosecutor of the court. The AU and the whole world had hoped that with an African as the head of the prosecutorial arm of the court, relations with AU would take a positive form. Four years on, that remains to be seen. In fact, if anything, the court’s relationship with the AU is getting worse despite the appointment of another African, a Senegalese, as the president of the Assembly of the State Parties of the ICC. As the AU convened again last week, the withdrawal question resurfaced. 


There’s no doubt that the ICC should seek for a better relationship with the AU. In fact, reforming the Rome Statute should go side by side with reforming the constitution of the UN Security Council. With Africa not having a permanent membership at the UNSC, it would be morally and politically outrageous for that body to make unilateral decisions on Africa, as in the case of Al-Basir, without consultations with the AU. 


Yet, pulling out of the ICC is a non starter. It might interest one to note that with the exception of the case of the Sudanese president, all the other cases at the ICC were referred by the various governments in Africa. One therefore wonders why the AU has taken such a position against the ICC. What is clear is that those who are championing the campaign for withdrawal from the ICC are more likely to be perpetrators than victims of crimes. The proposed African court is significant. It may not be a substitute to the ICC. An African human rights court should more or less complement the ICC.


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