Africa’s distrust with International Criminal Court 1

Perhaps, more than any other period in world history, the last two decades have seen a significant impetus in the effort to create an enduring global mechanism to bring to justice those who bear the greatest responsibility for the world’s most dreadful crimes. Despite several delays and setbacks, the international community’s vision of establishing a widely accepted global criminal justice system was finally realised when a number of states adopted a multilateral treaty known as the Rome Statute of the International Criminal Court on July 17, 1998. Before then, international obligations had always been outdone by the doctrine of state sovereignty which affirms the full right and power of a nation state to govern itself without any interference from outside sources or bodies. However, two world wars and the unimaginable human rights tragedies that took place in the former Yugoslavia and Rwanda changed all that and propelled the international community to find a way to address the growing impunity in several parts of the world.

However, despite the euphoria that greeted the creation of the court and its early successes, there is allegation gaining currency, especially in Africa, that the ICC is a neo-colonialist institution set up to exert subtle control over the continent and its leaders. According to this charge, the court has preoccupied itself with Africa and failed to investigate equally severe conflicts in other parts of the world. This perception is principally fuelled by the provenance of the cases currently in the court’s docket. The fact that majority, if not all, of the suspects currently being investigated or facing trial at the court are of African descent has often led to the misleading assumption that the court is an imperialist tool rather than one established to end impunity and promote global peace.

The need to address this situation became so pressing for African leaders that the AU in 2013 at the 15th extraordinary African Union summit held in Addis Ababa deemed it necessary to review its continued cooperation with the ICC and passed a landmark resolution providing a veil of protection for sitting African heads of states from ICC’s indictment and prosecution. Although, Kenya and Mauritania which requested the meeting had initially pushed an agenda for total withdrawal of African member states from the ICC, they were only able to secure “The selective Justice Resolution” and request for deferral of Uhuru Kenyatta’s trial. The AU reasoned that the resolution was passed in good faith and in the interest of peace and stability of the continent.

Even before the 2013 meeting, the AU had served advance notice of its tough posture when in July 2009, it informed the ICC that AU members will not cooperate with the arrest warrant issued against President Omar El Bashir of Sudan since the UN Security Council had refused to consider the African Union’s request to defer criminal proceedings against the Sudanese President.

This big question at this juncture is: can anyone really say that the position of the AU is justifiable having regard to the circumstances that exist in most African states? Sadly, a balanced appraisal of the hard facts points to the contrary.

Since the coming into force of the Rome Statute in 2002, the ICC Prosecutor has been moderately active and become seised of eight country situations – all in Africa. Of the eight situations, four were taken up on the request of the country in question, two upon referral from the UN Security Council, and by the Prosecutor’s exercise of its proprio motu power. The countries are: The Democratic Republic of the Congo, Uganda, Central African Republic, Mali, Sudan, Libya and Cote d’Ivoire. A case by case assessment of how the ICC got involved in these countries follows:

The Democratic Republic of the Congo

Long embroiled in an internecine war, the DRC had long been known for its inability to govern itself. Balkanised by various sponsored political interest groups for disparate reasons, one of the first country situations referred to the ICC was that of the DRC by its own government in 2004. Following the investigation launched by the Prosecutor pursuant to the request, six arrest warrants were issued against the key players in the conflict among whom were Thomas Lubanga Dyilo and Germain Katanga whose trials were recently concluded by the court. In March 2012, Lubanga, the most prominent of the accused was convicted of war crimes including the enlistment, conscription and use of children under the age of 15 as soldiers. The arrest warrants issued against Germain Katanga and Mathieu Ngudjolo Chui in a joint trial were for alleged crimes against humanity of murder, sexual slavery and rape, as well as war crimes founded on the use of child soldiers, attacks on civilian populations, wilful killings, destruction of property, pillaging, sexual slavery and rape.

Uganda

Uganda is host to Africa’s longest-running conflict – a brutal insurgency in Northern Uganda pitting the Lord’s Resistance Army (LRA) against the Ugandan Government and the Ugandan People’s Defence Forces (UPDF). As a direct result of this bloody conflict, thousands of innocent lives have been wasted. While the LRA has never been a large or sophisticated group, what it lacks in size it has more than made up for in viciousness and persistence. Joseph Kony, its unrepentant and infamous leader who has over the years distinguished himself for the most horrendous savagery, emerged in the early 1990s claiming to protect the interest of the Acholi tribe from a legacy of abuse and discrimination by Yoweri Museveni. Ironically though, rather than protect the Acholi or defend their interest, Kony has struck fear in the hearts of Ugandans by killing tens of thousands of his own tribes – and have mutilated thousands more! In this mindless campaign, Kony has adopted as his signature the hacking off of his victims lips. It was against this background that the Ugandan government in December 2003 requested that the Prosecutor of the ICC open an investigation into the situation with respect to the LRA. Hence, five arrest warrants alleging crimes against humanity and war crimes were in July 2005 taken out against senior leaders of the LRA, including Joseph Kony.

Central African Republic

The Central African Republic became a state party to the Rome Statute of the International Criminal Court when it ratified the treaty on October 3, 2001. The politics of Central African Republic had always been characterised by violence from independence in 1960. The war which gave rise to the intervention of the ICC began with the rebellion by the Union of Democratic Forces for Unity (UFDR) after the current President of the Central African Republic François Bozizé, seized power in 2003. According to Human Rights Watch (HRW), hundreds of civilians were killed, more than 10,000 houses burned, and over 200,000 people fled their homes to live in deplorable conditions deep in the bush in northern Central African Republic. It was against this background that Jean-Pierre Bemba and his armed group, mouvement de liberation du Congo (MLC), got involved in the politics of CAR. Originally from DRC, Jean-Pierre had fought his way to the DRC Senate and was thus seen by some as a dominant force in that country.

To be continued tomorrow
Jegede, a former Prosecutor at the International Criminal Tribunal for Rwanda, currently practises law in Lagos.