From Kenyatta To Al-Bashir: Africa’s Struggle With ICC
IN the absence of effective judicial arm to try cases of human right abuses, war crimes and similar acts considered as crime against humanity, African countries, may have to still endure the effort of the International Criminal Court (ICC) in The Hague to serve justice.
When President Uhuru Kenyatta of Kenya dramatically honoured the invitation of the ICC, expectation became rife that Sudanese President, Omar Al-Bashir, would take a cue by shedding the toga of a fugitive president and do the needful regarding the ICC invitation. But the Sudanese leader, in connivance with the South African authorities, spurned the order of a South African court to once again be on the run.
The Sudanese president, proving to be one of the most controversial challenges in the stormy relations between ICC and African leaders, faces charges of war crimes, crimes against humanity, and genocide leveled against him by the Court, in connection with violence in Darfur in the 2000s. He knew clearly that he was tempting fate by going to South Africa. But he managed to get away, thanks to a general ambivalence about the ICC throughout the continent, just the way he did when he visited Nigerian in July 2013.
Though, Al-Bashir was in South Africa to attend an African Union summit, but because South Africa is a member of the ICC, the country was obligated to arrest him on the two outstanding warrants — one from 2009 and one from 2010 — against him. South Africa’s High Court ruled that he shouldn’t be allowed to leave the country until it finished deciding on the obligation to arrest him. But next day, Al-Bashir’s plane sneaked out of Pretoria, bound for Khartoum. A few hours after that, the court ruled that he should have been held.
Initially in 1998, the ICC had a strong African support, particularly in the aftermath of the Rwanda genocide. There was an urgent need in the continent to squarely confront impunity and the mass violation of human rights. But since then, some governments and thinkers have apparently revised their opinions.
One reason is that most indictment issued by the ICC has been in Africa. The court’s jurisdiction is somewhat hobbled by the non-participation or non-cooperation of many countries, most notably the United States. But the fact remains that alleged acts of genocide committed in Africa have been the focus of a court based in Europe, and given that memories of colonialism are in some places still fresh and very raw, that raises hackles.
While the court can mete out an abstract sort of justice, it has little power to make things right for victims, except to serve as deterrence to leaders who act with impunity.
While Al-Bashir’s indictment in 2009 may have irked African leaders, the indictment of Kenyatta, also a sitting president, for crimes against humanity during post-election violence in 2007 and 2008, was viewed as an affront. The indictment was widely criticised by African leaders. The African Union has argued that no sitting head of state should be prosecuted by the ICC.
Speaking to The Guardian then, former External Affairs Minister, Prof Bolaji Akinyemi, accused the ICC of thriving on “double standards and hypocrisy.”
Explaining that the ICC is wrong to continue a case against a sitting president, he explained that critical countries that pride themselves on human rights protection had not only refused ICC’s jurisdiction, but had always shielded their clients from the court’s probing.
According to Akinyemi, “But to fulfill all righteousness, a few high profile cases had to be brought before the ICC and what better scapegoats than Africans, Black Africans. People seem to have forgotten that the message from the international community to Africans between 1960 and 1990 was to forget and forgive the colonial authorities.
“Forgive and forget the racist and apartheid regimes of Southern Rhodesia and South Africa. Then the message changed once it became clear that it is Black African leaders, who will be humiliated into the criminal docks.”
But differing from Akinyemi, the president of Nigerian Society of International Relations, Prof Jide Owoeye, told The Guardian that there is nothing wrong in dragging a sitting president before the ICC to answer charges against him. According him, “It is all about gang up by African leaders. There is nothing wrong in prosecuting any sitting president. We are talking of an international organisation that is not bound by any country’s law. There is no charter of the AU that gives immunity to any sitting president; I don’t know where that is coming from. I don’t give much weight to that kind of resolution.”
In any case and after years of accusing the ICC of unfairly targeting leaders from the continent, the African leaders eventually had their chance of providing alternative to ICC; but characteristically they refused to come to the party. The alternative –– the African Court of Justice and Human Rights –– was intended to give the continent a homegrown solution. But in a move described as an own goal, African leaders stripped the court –– which was in its embryo –– of power to prosecute them for genocide, war crimes or crimes against humanity.
When the chance came in 2014 during an African Union summit in Equatorial Guinea, a country in 36 years vice-grip of President Teodoro Obiang Nguema Mbasogo and often spotlighted for its own rights abuses, the African Heads of State and officials voted to grant sitting leaders and senior officials immunity from prosecution. Though, the immunity would be valid only while officials are in power, but this in itself is an open invitation to sit tight forever in office. Critics note that Zimbabwe’s Robert Mugabe, one of the longest ruling leaders in the world at 35 years in power, may also typify this scenario. Incidentally, Mugabe is the current chairman of the AU.
According to its charter, the African Court of Justice and Human Rights is intended to replace the African Court on Human and Peoples’ Rights (AfCHPR) and the African Court of Justice, to become the main judicial organ of the AU and predominant human rights court for the continent. The scope of the African Court of Justice and Human Rights’ mandate is designed to be greater than that of its predecessors, as its jurisdiction extends beyond inter-State disputes and State responsibility for human rights violations to deciding individuals’ responsibility for genocide, war crimes, and crimes against humanity.
Unlike the AU attempt, the ICC can prosecute sitting or past leaders who typically have immunity in their national courts. The African court has been cited as an African solution to African problems, but by granting themselves immunity they put themselves out of reach of the institution. Vast majority of the crimes the court investigates will be by senior officials in power. Invariably, victims of the abuse have no choice but to turn to the ICC for justice.
The ICC statute was adopted by the UN General Assembly on July 17, 1998 in Rome to try those accused of the worst international crimes, but some global powers – including Russia and the US – don’t recognise its jurisdiction. However, the Hague-based institution’s most strained relationship has long been with African leaders. Eight African leaders have been indicted so far. But survivors of some of the civil conflicts that raged through West Africa in the 1990s, which partly helped in bringing about the ICC’s creation, expressed dismay at the African court’s draft constitution.
Owoeye, who is also the chairman, governing council of the Lead City University, Ibadan, cautions Africa in total condemnation of the ICC. “Africa has to be very careful in condemning the ICC, because there may come a day you may need such an international organisation. If the conscience of Africa has to come from outside the continent, so be it. Look at the case of Charles Taylor. Nigeria practically gave the former Liberian President away, because of what he committed against some Nigerians. At the right time, he was delivered to international judgment. So, to a large extent it depends on individual country and its national interest,” he said.
In April 2012, when Charles Taylor became the first African president to be prosecuted at an international court. A UN-backed special court for Sierra Leone found the former Liberian president guilty of aiding and abetting war crimes and crimes against humanity for supporting rebels who carried out atrocities in Sierra Leone.
In the words of Owoeye, what the South African government may have done in the case of Al-Bashir, the country might not do same in the case of another country. According to him, “Bashir was attending AU. It means that the host country is prepared to ensure his comfort. If they thought it was going to constitute a problem to them, they would have found a way of preventing him from attending. It is a case of one African leader protecting another. Of course, many of them are worse than Al-Bashir.”
However, Amnesty International said the decision by African leaders to grant themselves immunity was a step backward for justice.
“At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision, which undermines the integrity of the African Court of justice and human rights, even before it becomes operational,” said the organisation’s Africa director, Netsanet Belay.