Why Africa's opposition to ICC will only get louder

Africa’s discontent with International Criminal Court (ICC) continues, with the Conference of the Committee of Intelligence and Security Services of Africa (CISSA) in Kigali last week the latest to move the discourse forward. This means that, despite 34 African countries being states parties to the Rome Statute of the ICC, it will be a while before the Court musters respect on the continent. Examining some of the reasons a significant number of countries have not signed on to it shows why the Court shall continue to draw criticism that has bordered on contempt, especially with the open defiance it has been shown. Sample how African countries continue to defy the court’s request to arrest Sudan’s President, Omar al-Bashir, who has been indicted for war crimes and other crimes against humanity in the Darfur region. The reasons for the defiance are writ in the ICC’s notional and operational flaws, to which a case against it was made long before Africa’s perception of the Court’s apparent biases. The ICC was created to prosecute war crimes, crimes against humanity, genocide, and crime of aggression. Yet, strangely, the crime of aggression remains vaguely defined, as I will explain shortly. But, among some of the key concerns, as has often been demonstrated is how the court lacks prudent safeguards against political manipulation. It remains one of the major concerns driving the African countries’ disquiet. There is also the concern that the court possesses sweeping authority without accountability, in addition to a propensity to violate national sovereignty. Take the crime of aggression, for instance. Analysts note how the ICC’s jurisdiction over the supposed crime of aggression directly involves the court in fundamental issues traditionally reserved to sovereign states, such as when, how and to what extent a state can lawfully use armed force to defend itself, its citizens, or its interests. The ability to act when necessary on national security interests is non-negotiable anywhere in the world, from the United States to Rwanda. I mention both countries advisedly, as both are among the many not signatories to the Rome Statute. Under the UN Charter, as it also has been pointed out, the UN Security Council has primary responsibility for maintaining international peace and security. But the Rome Treaty removes this existing system of checks and balances, and places enormous unchecked power in the hands of the ICC prosecutor and judges. The treaty created a self-initiating prosecutor, answerable to no state or institution other than the court itself. The ICC Prosecutor’s office has received thousands of cases to investigate, some of them dubious and probably malicious. From this fact, it is obvious the prosecutor’s authority to initiate an investigation based solely on her own authority or on information provided by a government, a nongovernmental organization, or individuals is an open invitation for political manipulation. As one cogent observer long observed, the court will inevitably have “the West” written all over it. Even if it scrupulously follows UN best-practice, those providing the money will ultimately influence its workings — or at least that is how it will be perceived. ICC and its supporters have been unconvincing in their legalese and long-winded rebuttals on the facts as they obtain. In the end, it is perception that drives politics. The theme of the CISSA meet in Kigali was “Countering the growing threat of abuse of universal jurisdiction against Africa.” The intelligence chiefs at the meeting protested the manner in which some African leaders have been either indicted or hounded before global courts. An indictment is probably the right thing to do, but it can be counterproductive as far as finding a lasting solution to the troubled region is concerned. The priority, as it’s often been pointed out, is to reduce the violence, stop the atrocities, restore peace and security, and reconstitute refugees. And not to condone or promote impunity. An alternative justice system would ably handle issues of justice.

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Why Africa's opposition to ICC will only get louder