The first time a group of African leaders got together to seriously consider a mass withdrawal from the International Criminal Court, shouting could be heard coming from a conference room more used to diplomatic smiles and polite handshakes.
An assistant to one of the presidents, stepping out to take a phone call, looked horrified when he spotted journalists within earshot. “Go! You’re too close,” he shouted.
The ICC, it seems, makes some African leaders very angry.
And since that meeting in 2010, if anything, tensions have risen. On Friday, it looks as if the UN Security Council will consider an African call that the ICC trials of Kenya’s President Uhuru Kenyatta and his deputy, William Ruto, should be deferred for one year.
If you hijack this institution, then keep it. We don't need it.
Kenyatta and Ruto are accused of stirring ethnic bloodshed that left about 1,200 people dead after Kenya’s 2007 elections. Kenyatta’s trial is due to start in February after being delayed three times, while Ruto’s is already underway and he has appeared at the Hague several times.
Both men have said they should be free from the court’s duties to do what they were elected – freely and fairly – to do: govern their country. The need for them at home is especially pressing now, they argue, after September’s attack on Nairobi’s Westgate mall by the Somali rebel group, al-Shabab, in which at least 70 people were killed.
While most diplomats say it’s unlikely the council will agree to defer, the deepening row between the court of last resort and much of Africa isn’t going away any time soon.
This latest pushback against the ICC was hatched at a special African Union summit held in the Ethiopian capital, Addis Ababa, last month. The meeting was called at the behest of the Kenyans but many other African nations are equally keen to attack the court.
“The ICC has been hijacked and it is being used selectively in a reckless manner,” Uganda’s deputy foreign minister, Asuman Kiyingi, told Al Jazeera.
“We do believe that the ICC, if used appropriately, can check impunity. But if it is used in a very selective manner, and without taking into due consideration what the African leadership is saying, then, of course, it can cause us problems.
“If you hijack this institution, then keep it. We don’t need it.”
On the face of it, the AU would seem to have a good argument.
All of the court’s current 20 cases in eight countries are against Africans – two of them sitting heads of state – and, though four of the countries involved referred the cases to the ICC themselves, some of the continent’s leaders accuse the Hague-based court of picking on them.
Victims await justice
Stoking their anger is the fact that global powers such as the United States, China and Russia have not signed up to the court. Neither have Israel, Pakistan, India, North Korea, Saudi Arabia, Qatar and several other nations.
Why, many Africans ask, are Britain and the US not investigated by international institutions for the alleged crimes of their troops – and political leaders – in places such as Iraq and Afghanistan?
The answer for some, as once articulated by Ethiopian Prime Minister Hailemariam Desalegn, is that the ICC is “hunting” them. Worse still, they say the hunt is racist and neo-colonial.
“The founding fathers of African unity were conscious that structural colonialism takes many forms, some blatant and extreme like apartheid, while others are subtler and deceptively innocuous, like some forms of development assistance,” Kenyatta said in a gleefully anti-Western speech to close the AU meeting.
Suspicion of the ICC deepened in the African Union when the Security Council asked it to investigate the then Libyan leader Muammar Gaddafi’s violent crackdown on protests against him in 2011.
AU officials say they felt slighted by Western powers when its proposed plan for negotiations between Gaddafi and the rebels was largely ignored. Though the rebels refused to ever really consider it because of Gaddafi’s sway within the AU, for many African leaders, the NATO intervention was a colonial one.
For some African governments, the power the Security Council has to refer cases – which was also used in Kenya – is at the heart of the problem. That ability, they argue, can be used against them by the countries that traditionally dominate the council, especially the Western ones, and they want it stripped.
The court’s defenders, marshalled to lobby in its favour ahead of the summit, say these claims are nonsense. The African countries who want out of the court are simply trying to avoid justice, the argument goes. What they really want is impunity. Claims of institutional bias against Africa are nothing but a smokescreen.
“The AU’s call for a deferral of the cases against Kenya’s president and deputy president is another attempt to derail and delay justice for Kenya’s victims, and betrays the AU’s purported commitment to fight impunity,” Davis Malombe, deputy executive director of the Kenya Human Rights Commission, said after the summit.
Some AU officials admitted privately to Al Jazeera that a desire to escape justice does motivate some of the organisation’s members and that divisions over how to deal with the ICC have caused rows between its member states regularly in recent years.
Kenya, Sudan, Uganda and Ethiopia are among the countries who favour a walkout, diplomats and AU officials told Al Jazeera. And countries such as South Africa, Ghana, Nigeria and Botswana are among those who ordinarily argue against that.
The 2010 meeting at which tempers boiled over took place at an AU summit in the Ugandan capital, Kampala, the same month the ICC added a charge of genocide to a warrant it had issued the year before for the arrest of the Sudanese President Omar al-Bashir, accusing him of orchestrating murder, rape and torture.
Unlike Kenyatta, Bashir has refused to co-operate, and the Sudanese – along with the Kenyans – have pushed behind the scenes for a mass walkout from the court by the 34 African countries who are signed up to it.
Though many officials – including several Western diplomats – told Al Jazeera there was a strong argument the ICC’s warrant against Bashir was badly timed and made the situation in Sudan worse as he became determined to cling to power in fear of being arrested by a new regime, his vendetta against the court would appear largely selfish.
Africa has been involved in the ICC since its inception. The court was established in part by Africans and it is currently defending African victims.
But, the same officials say, Bashir aside, the manner in which the story is often presented by the media – as a fight between justice and impunity – is too simplistic.
The fact remains that all of the cases are African and the perception among many Africans is that the court has become a tool of the West. The anger, they say, is genuine.
“The real story is one of a more confident Africa that will not be told what to do anymore,” an African official who works with the AU and who did not want to be named told Al Jazeera.
To some extent, that willingness to kick back against former colonial masters has come as African nations have grown in economic clout and built new alliances with countries such as China, Russia, India and Turkey (both Moscow and Beijing back the AU on the deferral).
“We’re not against justice,” the African official continued. “But we won’t have a ‘Western’ justice dictated to us. And we won’t anymore ignore that the ICC only wants Africans.”
Though the court has launched investigations in countries outside of the continent – in Georgia, Honduras, Afghanistan, Colombia and South Korea – it has yet to bring those cases to trial.
“With respect to the ICC, what is relevant is its apparent tone-deafness to public perception in Africa – and, hence, to the political realities thus created by those perceptions – of the tribunal’s seeming fixation with Africans,” Peter Pham, director of the Africa Center at the Atlantic Council think-tank, told Al Jazeera.
For many on the ICC’s side in the row, it is the voice of the victims that is lost as the ICC and the UN lock horns with the AU and African governments – arguments in the conference rooms of the powerful are a long way from the homes of the grieving families of people killed, many of them hacked to death or burned alive during Kenya’s violence.
“It is important to ensure justice for the victims of serious crimes that occur on the continent and around the world,” Ibrahim Tommy, of the Center for Accountability and Rule of Law in Sierra Leone, told Al Jazeera.
“In the absence of a credible and functioning court with a similar jurisdiction as the ICC to try perpetrators of serious crimes in Africa, it would be a huge setback for efforts at combating impunity on the continent if ICC member states in Africa were to withdraw.”
The AU has tried to create its own African Court of Justice and Human Rights but the effort has stalled and seems unlikely to get funding. While all of the seven African NGOs and legal advocacy groups contacted by Al Jazeera agreed that, if possible, political criminals should be dealt with at home by domestic tribunals or by a pan-African court, they also said that until such institutions are credible, the ICC is the only hope for victims.
Can you imagine Tony Blair in front of the ICC when he was in power? Do you think Britain would allow that?
Supporters of the ICC point out that Africa’s ICC members joined voluntarily. They scoff at suggestions the court could be Western-dominated when its chief prosecutor, Fatou Bensouda, is from the Gambia and five of the 21 judges are African.
“Africa has been involved in the ICC since its inception,” Angela Mudukuti, of the Southern Africa Litigation Centre, told Al Jazeera. “The court was established in part by Africans and it is currently defending African victims.”
But ICC critics see a Western hand behind the scenes, even when African prosecutors are involved and African NGOs speak out in support of the court. They say the cases pursued by the court’s first chief prosecutor, Luis Moreno Ocampo, betrayed its Western agenda and that most of the African NGOs that defend it are Western-funded. To them, the behaviour of Western governments, aid organisations and other institutions is sometimes condescending.
“It’s a really colonial context. We were a dominated people. For a very long time we have been taking directives from these people,” Uganda’s Kiyingi told Al Jazeera.
“Even on the economy and politics, we are hardly ever taken seriously because we are dismissed as people who are incompetent. So, when we speak out, we are not given due attention from some of these leaders and this is just an extension of that.”
The court’s supporters on the continent will be hoping that the Security Council doesn’t buy these arguments on Friday and that it defends the ICC’s credibility by refusing to deal what would be a serious blow to its perceived power.
Whatever happens, the court’s opponents in Africa insist their battle will go on.
“Can you imagine Tony Blair in front of the ICC when he was in power? Do you think Britain would allow that? It is impossible to picture such a thing,” another AU official told Al Jazeera.
“We will not stop resisting this so-called court until it treats us like everybody else.”
Follow Barry Malone on Twitter: @malonebarry