Which way Africa and the International Criminal Court?

The International Criminal Court, known famously as the ICC, has had and may continue to have unacceptable consequences for Africa’s security interests as well as erode or compromise the very sovereignty that Africans may be having. Part of the reason lay in the fact that the ICC is an organisation whose precepts go against fundamental African notions of sovereignty, checks and balances. Do Africans have their own interests to protect or their interests are being taken care of by others?It should be recalled that the statute of Rome establishes both substantive principles of international law and creates new institutions and procedures to adjudicate these principles. The statute confers on ICC over crimes, namely, genocide, crimes against humanity, war crimes, and the crime of aggression. The Court’s jurisdiction is “automatic”, applicable to individuals accused of crimes under the statute regardless of whether their governments have ratified it or consented to such jurisdiction. Particularly important is the independent Prosecutor, who is responsible for conducting investigations and prosecutions before the Court. The Prosecutor may initiate investigations based on referrals by states parties, or on the basis of information that he or she otherwise obtains.It might be assumed from the foregoing that the ICC is simply a further step in the ‘orderly march toward the peaceful settlement of international disputes’. But the reality on the ground is different. The Court is poised to assert authority over nation states and to promote its prosecution over alternative methods for dealing with the worst criminal offences.The esteemed Court has two serious flaws: Firstly is substantive in nature and secondly is structural. In case of the former, the ICC’s authority is vague and excessively elastic and the Court’s discretion ranges far beyond normal or acceptable judicial responsibilities, giving it broad and unacceptable powers of interpretation that are essentially political and legislative in nature. Why should Africa then place its destiny in the hands of such a powerful Court whose accountability is far from being clear?As Rwanda’s Chief Justice Prof. Sam Rugege correctly observed, “many Africans .. .are unhappy about the way the International Criminal Court (ICC) operates. Instead of operating as an International Court, many think it is biased against the continent and ignores crimes committed in other parts of the world”. A lot of events are taking place in the region and they relate to international law and Justice. I have been reminded that International Law and indeed justice favours the powerful against the weak and powerless. Omar El Bashir, the Sudanese President was a few years ago issued with the International Criminal Court (ICC) warrant of arrest, the first for a sitting head of state. To issue an indictment for a sitting head of state is a huge gamble with unpredictable consequences. So far Omar El Bashir is still a free man, despite the current challenges facing his country and South Sudan both of which are on the throes of a serious warfare. If it does succeed that General Bashir is finally arrested someday, the consequences will be unfathomable. And this would send a regrettable precedent for our continent and the developing world.No doubt, the ICC Prosecutor, Luis Moreno-Ocampo, has successfully created uncertainty and fear among Africa’s leaders and people. Why fear? Students of conflict resolution agree that conflict management is in part an exercise of reducing anxiety and uncertainty thereby bringing former enemies together and finding common grounds and a solution that everyone can live with.Sudan has done a lot for nearly a decade through persuasion of its international partners and friends to accommodate diverse and distrustful people who have the ability to bring the country from a near apocalypse that it has sometimes been close to. Resolving the Sudanese imbroglio has always been key to solving its national challenge and part of a new vision for the Sudan. The ICC has put a spanner in the works of these efforts. It has successfully pretended to be out of the political paradigm ‘representing principles on which no compromise is possible’. The key word here is “pretence”.From Charles Taylor, Thomas Lubanga, now General Bosco Ntaganda to Uhuru Kenyatta, Muthaura, Rutto and others, the majority of those indicted are Africans.If you scan across the length and breadth of the universe, you begin to wonder about the curious coincidence. Why is it that it is Africa that is being targeted? We have the Middle-East, Latin America and the Caucasus, to mention just a few. All these are international trouble-spots in which there are people who can be singled out for contributing to human rights violations and injustice.There is a lot at stake in the Sudan with the arrest warrant issued against president El-Bashir. The Arab League has expressed dismay that the UN Security Council could not have delayed the court proceedings. Fortunately two members of the Security Council, Russia and the Peoples Republic of China could be handy. Already Russia’s Foreign Ministry has warned that the ICC decision could further destabilise the peace process in Sudan. China has similarly refused to back the arrest warrant and has argued that the warrant was regrettable and a source of concern for Beijing.Whatever the outcome of the Bashir arrest warrant, the consequences for the people of Sudan may be food for thought. After all, we live in an interesting world in which interests come first.

Opinions

Which way Africa and the International Criminal Court?