Tomorrow, African leaders will meet to discuss Africa’s relations with the International Criminal Court (ICC). Relations between the African governments and the ICC could not be worse than the current state of affairs. Now, at government and also to some extent at public level, the ICC is perceived as being anti-African. Some African leaders are also thought to be fearful of the ICC. The same can be said about the relationship between the AU and the ICC. The AU barred the ICC from opening a liaison office to the AU in Addis Ababa.
Recently the AU commenced a global campaign against the entire ICC following a request from the East African region. Indicative of its precarious relationship with the ICC, the AU has called an extraordinary summit featuring the ICC as the sole agenda item for discussion. Clearly, the AU’s displeasure about the ICC’s operations in Africa is nothing new. Since the indictment of the Sudanese President in 2006, the AU has expressed its grave concerns about the ICC and subsequently decided not to cooperate with the ICC on specific cases, namely the cases brought against the Sudanese president, Mr Omar Al Bashir, and the newly elected president of Kenya, Mr Uhuru Kenyata. The AU has also forwarded repeated pleas and requests to the UN General Assembly, and to the UN Security Council for deferral of these specific cases.
In a series of articles I wrote for various media outlets, I deliberately used the title African Leaders and the ICC: The Good, The Bad and The Ugly. Summarising the major points of these articles in this piece I argue that the ICC is ‘the Good’ for Africa, the former Chief Prosecutor is ‘the Bad’, and African leaders of governments and rebel groups implicated in gross human rights violations are ‘the Ugly’. There are several reasons for this characterisation of the current relationship between the ICC and Africa.
At public level, and to some degree in the academic arena, any criticism of the ICC and its Chief Prosecutor or divergent opinion regarding the ICC is considered as being ‘anti-ICC’, ‘pro-Al Bashir of Sudan’, ‘supporting impunity’ and so on. In contrast, many African leaders, politicians and academics alike have criticised the ICC as being ‘anti-African’, ‘pro-dominant powers’, a ‘neo-colonial court’ and so on. On the face of it, these criticisms seem plausible. Closer investigation, however, reveals that these criticisms are misplaced, biased, and often incorrect. More importantly, as short-sighted as they are, such incorrect, shamefully one-sided and deliberate distortions have led to the current viciously critical and shaky relationship between the AU and the ICC. As usual, the truth does not reveal itself in stark shades of black or white. As with all-important issues, it is more likely to appear somewhere in the middle; in grey.
It will be recalled that the case against President Al Bashir of Sudan (and three other indicted officials) became a rallying point for the AU and the Intergovernmental Authority on Development (IGAD). What we have in Kenya is another Bashir-like case, where President Kenyatta and some of his officials have been indicted. Thus, the Summit will be used to urge the African states parties to the Rome Statute to withdraw and not cooperate with the ICC. The new posture of President Kenyatta’s government is more Pan-Africanist and Pan-IGAD and thus may gain even more support. Nevertheless, with the exception of Kenya, which has already decided to withdraw from ICC, a few countries such as Uganda and Djibouti will do little more than verbally declare their intention to withdraw. Nigeria, Algeria, South Africa, and Egypt are more likely to fully support the AU’s stand on particular cases, while they attempt to maintain their hold on the middle ground. A small number of countries, such as Botswana, can be expected to oppose the AU’s decision.
In a nutshell, the IGAD, which includes Kenya, Sudan and Uganda as member states, will actively support the withdrawal, but the summit is unlikely to decide in favour of bloc withdrawal. Paradoxically, during the negotiation for the Rome Statute, it was Kenya and Uganda who were the most aggressive African proponents of the ICC. They were the first countries to ratify the Statute. Actually, a Kenyan diplomat even assumed responsibility as the second vice presidency of the ICC Assembly of States Parties. Before the indictments against Kenyans, the Nairobi government was a very vocal supporter of the ICC. Now, Kenya has become the first country to officially withdraw from the Rome Statute. While Kenya is once again vigorously engaged with the ICC, on this occasion it is with determination to weaken the ICC’s position in Africa.
Possibly the most far reaching consequential impact on the ICC’s future in Africa will be that countries like Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea Bissau, Mozambique, Sao Tome and Principe, the Republic of Sudan, and Zimbabwe, states that have signed but not ratified the Rome Statute, may not ratify it or may even decide to “un-sign” the Statute. This would place these African countries in the same category as the USA and Israel, who also signed but did not ratify the Treaty. Moreover, countries like Equatorial Guinea, Ethiopia, Libya, Mauritania, Rwanda, Somalia, South Sudan and Togo are likely to consolidate their determination also not to sign the Rome Statute. Hence the most important message from this AU Summit to the ICC and the international community will be its continuously converging and strong opposition regarding the ICC’s handling of Africa and making the future of the ICC in Africa that much more precarious.
The other far-reaching negative implication of the Summit is the continued politicisation of the ICC’s judicial role. Primarily due to the prosecutorial policies of the former Prosecutor, Mr Ocampo, the victory of Mr Kenyatta and Mr Rutto in the most recent Kenyan election was construed as reflecting the Kenyan people’s indictment on the ICC and its activist Prosecutor. For many, the Kenyan presidential election was a contest between Mr Kenyatta and Mr Ocampo, with Kenyan voters serving as the jurors in a case that placed the ICC judges in the dock. In the eyes of many Africans, the ICC lost its case.
To be certain, an en masse withdrawal from the ICC will hurt Africans more than the ICC. With the highest incidence of systemic and human rights violations globally, Africa, more than any other continent, needs the ICC. As the largest bloc to ratify the ICC Rome Statute, Africa showed its staunch support for the ICC. Indeed, many Africans genuinely believe that they want an end to genocide, war crimes and crimes against humanity. The ICC can help in deterring political forces from committing these terrible crimes. That is the reason why one- third (34) of the 122 states parties to the Rome Statute are member states of the African Union.
The ICC also needs Africa. Former President of the ICC, Mr Philippe Kirsch, stated in a meeting with the AU in 2006: “As far as I am concerned the ICC would not exist without the support of the African Members”. Africans, therefore, believe that the ICC is good for Africa. The current rough relations emanate from the activist prosecutorial policy promoted by the former ICC prosecutor Mr Ocampo and the referral and deferral powers of the UN Security Council.
For such reasons, the AU should continue to pressure the UNSC and the ICC to address Africa’s major concerns. The AU, through its member states, which are also states parties to the ICC, should make use of its regional bloc advantage to ensure that its repeated calls for reform are heeded. Thus it should focus on the following three issues: 1) developing a strict African mechanism for ensuring accountability of all state officials and leaders, particularly heads of governments; 2) change Mr Ocampo’s prosecutorial policy by persuading the Assembly of states parties of the ICC; and 3) more crucially ensure that the UNSC’s referral and deferral powers are withdrawn and conferred either to the Assembly of States Parties or/and the UN General Assembly.
Mehari Taddele Maru is International Consultant on African Union affairs, and Research Fellow at the NATO Defense College. He was Programme Head of Conflict Prevention and Risk Analysis at ISS Addis Ababa, Programme Coordinator for Migration and Legal Expert at the African Union Commission as well as the Director of the Addis Ababa University Office for University Reform.