Oyebode: African leaders exiting ICC are not immune from prosecution

We Are Waiting To See The Arrest of Western Leaders For War Crimes

Recently, three African nations unveiled plans to opt out of the International Criminal Court (ICC), on the allegation that it is anti-African. Professor of International Law at the University of Lagos, Akin Oyebode, spoke with The Guardian on what may have prompted The Gambia, South Africa and Burundi to want to take this course and how to change African mindset in this regard.

What, in your opinion, made these African nations to accuse the ICC of being anti-African?
The various African countries, indeed, the African Union (AU), have come out with a position that the ICC is ranged against the continent. Not that the Rome Statute specifically depicted Africa or African countries as violators of international minimal standards of human rights, but you will notice that only African personalities, freedom fighters and heads of states have been accused of breaching the Rome Statute. That is why, for instance, some AU members have not been so committed to honouring their obligations under the Rome Statute, especially those concerning delivery of persons against whom arrest warrants have been issued by the ICC.

African countries generally seem to connive with and protect accused persons. Omar Al Bashir of Sudan, especially with regards to events in Darfur, is a case in point. We have heard of the atrocities the Americans perpetrated in Iraq, Al Gerab Prison, and of course, former British PM Tony Blair, who also was an accomplice. Those Western leaders could easily be brought before the ICC. Russian President Vladimir Putin assigned jet bombers to attack Aleppo and even the Americans have said that the activities of the Russians in Syria are tantamount to crimes against humanity – war crimes or genocide, which are all justiciable under Articles 5 to 7 of the ICC.

The other thing we should observe is that under the Rome Statute, especially Article 27, sovereign heads of states are no longer immune. The concept of sovereign immunity in international law has been eroded, where allegations of war crimes, crimes against humanity and genocide are involved.

However, one important point is that you don’t need to be a signatory to the Rome Statute for the statute to be invoked against you. The Rome Statute permits the Security Council of the UN to refer matters that are tantamount to crimes under Articles 5-7, to the prosecutor, who can now exercise powers to institute investigations and if prima facie case has been established, to issue an arrest warrant. Nothing precludes the ICC from seeking the arrest of Blair or Bush because under International Law, there are no statutes of limitation for crimes.

Are there things the ICC can do to change African countries’ perception of it?
I will answer this question against the backdrop of international law. Here, a state reserves the right to enter into any engagement and vacating that engagement is an act of sovereignty. African countries have the right to enter into the Rome Statute and they also have the right to exit, if the situation is no longer convenient or conducive. But there is a principle in international law called Pacta sunt servanda (agreements must be faithfully implemented). This is to say that a concluded treaty should be honoured and implemented in good faith. You are not compelled to enter into any treaty, but once you do that, under international law, you are duty-bound to carry out the provisions of the treaty.

African states entered into the Rome Statute with their eyes wide open. They should not give the impression that they are international rascals, because the world will no longer take their word seriously. If a country starts vacating or violating its obligations, then the rest of the world will have a low impression of that particular state. So, if the African countries want to remain part of the human race and be part of the international community, they should honour their obligations. They should not do anything that is untoward in terms of international obligations.

Interestingly, the U.S. that makes a lot of noise about genocide and others is not party to the Rome Statute. Beyond and above that, the U.S. has invoked Article 98 of the Rome Statute to enter into engagements with parties to the statute, not to deliver up any American soldier that is wanted for any of the crimes.

What practices made African countries accuse ICC of not being anti-Africans?
We must recognise the double standards that exist in the world. Similar cases should be treated similarly. That is one of the principles of law, which we borrowed from our colonial oppressors. You can’t make one rule for certain countries and another one for the others, as one state is equal to another. There is a lot of ground to suspect some anti-African attitudes within the ranks of the ICC. Why have we not heard statements about Vladimir Putin, George Bush and Blair? Why can’t they say they want to investigate what is happening in Syria or what the Americans did in Iraq?

The Americans insisted that their soldiers could only be tried within their own court martial. They don’t accept the jurisdiction of the ICC over their soldiers, howsoever malicious, desperate or preposterous the soldiers behave at the theatre of conflict. There is too much double standard and hypocrisy with regards to non-African countries, members of the OECD, and the group of 24 most industrialised countries. They speak from both sides of the mouth. The same yardstick should be used to handle Africa, Europe, Latin America or wherever.

Is this attempt by African countries to exit the ICC escapist?
I must say that they are trying to make a point. ICC is ranged against them, is not even-handed, there is no level-playing field in the world. The ICC focus has been on Africa. So, these African countries are showing their distaste in a vehement fashion against the way they have been treated at The Hague. But if you say that they want to cover themselves or their atrocities, of course, some people will think along this line; that once you are no longer within the ICC, then you can deal with your nationals howsoever you wish.

But that is not absolutely correct. Even if you are not a member of the ICC and your matter is outrageous, it can still be raised at the Security Council. Omar Al-Bashir of Sudan is not a member of the ICC, but there is an international warrant of arrest on him. So, exiting the ICC does not absolve them from international responsibility because there are different ways of invoking responsibility of the ICC.

In fact, the basic principle that under-guards ICC jurisdiction is complementarity. By that, it means that if a party is unwilling to enforce the provisions of the Rome Statute, then the prosecutor can take the matter up at his own initiative, that is suo moto (by himself). The state parties have the primary responsibility to ensure that no crime against humanity, no war crimes, no genocide is committed within your country. It is only when such crimes have been committed and you don’t show any evidence, any commitment to try to arrest and try the persons accused of committing such crimes that the ICC might seize the matter.

Countries such as South Africa, The Gambia or Burundi, who are now saying they want to exit the ICC, I do not know what they stand to gain, because if they violate the Rome Statute, they will still be liable under it through the instrumentality of the UN Security Council. Saying they want to go out of the Rome Statute is just humouring themselves, because if the West wants to get you, any member of the Security Council can always refer your matter.

So, if African countries think that by exiting the ICC they can be committing mayhem and atrocities against their nationals, they will not be saved from the ICC jurisdiction, if they are apprehended by the UN Security Council. It is surprising that a country of eminence such as South Africa could exit the Rome Statute. Moreso, South Africa habours aspirations to be made a permanent member of the Security Council. It is bad politics. It is as bad for Egypt and Nigeria, because they are the only three African countries competing for the two positions of Security Council permanent member. Out of the three, only two will be chosen between Egypt, South Africa and Nigeria.

By shooting itself in the foot, South Africa is not going to muster a lot of support, when the choice comes to be made. It has given the battle away to Egypt and Nigeria.

Are there grounds upon which their arguments can be supported?
Free entry, free exit is the position in international law. A sovereign State has the right to go to heaven the way it wants. They are exercising their sovereign rights to exit the Rome Statute.

It seems that the spotlight has been only on African delinquents. The argument of those who are exiting is that the ICC is not even-handed. Why are they focusing only on their colleagues in Africa? When you look at the African landscape, there are many so-called African leaders, who don’t evince leadership qualities, but they are in charge. That gives us the negative profile within the international community. It shows that we are not in charge of our affairs, when with our eyes wide open we elect distasteful, criminally minded people to lead us. Burundi president’s action is preemptive, as he fears he might be brought to the ICC.

Is it not possible for the ICC to discharge its responsibilities without bias?
ICC prosecutor, Fatou B. Bensouda, said she wouldn’t do anything against her continent. The founding fathers of this court have a game plan, which they have not disclosed, otherwise why are they not members of the ICC? The UN Secretary General expressed his discomfiture with what South Africa did. The Western countries have remained ominously silent. They have the winner-takes-it-all attitude. They don’t believe in equality of states, not to talk of equality of the races. They still believe that Africans are children of the lesser god and should be given the wrong end of the stick.

Whilst not absolving the bad behaviour of some African countries, we, however, deserve a modicum of respect as human beings. We are not inferior human beings. I believe that those countries that are quitting the ICC had it up to the neck level and said to hell with the ICC. It is a western conspiracy against Africa.

The exit of quite a number of African countries should sound alarm bells in the minds of the ICC that before long, they might have no parties. If other African countries decide to follow suit, then the ICC might become a shadow of itself. So, they either shape up or ship out. They must take measures to refurbish their image, to spread their dragnets far and wide beyond Africa. Let it extend its dragnets to other flashpoints in order to give the impression of even-handedness; that they are not just zeroing in on Africa. They will get a lot of credit for that in terms of confidence in African countries that they will be fair and even-handed.

What advice do you have for Nigeria or any other African nation that may wish to quit the court?
As an international lawyer, I would caution my country against it. Nigeria is a responsible member of the international community. So, it is better to stay within the organisation and fight instead of exiting, because it doesn’t absolve them of being persecuted of any wrongdoing. There is no advantage to derive from quitting because the court can still exercise jurisdiction over them. Going away does not absolve them from accountability for any violations of international humanitarian law.