The 26th Annual Summit of the African Union held in Addis Ababa was dominated by security issues as discussions over the ongoing situation in Burundi and Libya remained inconclusive. The Summit also took a highly symbolic decision when it overwhelmingly backed a proposal tabled by the Kenyan government to prepare a road-map for the withdrawal of African nations from the Rome Statute, the 1998 Treaty that underpins the International Criminal Court (ICC) based in The Hague. The decision is not legally binding but is the most recent development in the strained relationship between African Leaders and the International Criminal Court.
In order to understand the debate and arguments that underpin the tense relationship between African states and the ICC, a concise explanation of the structures of the International Criminal Court is necessary. The International Criminal Court is an independent international organisation that is not dependent of the United Nations. The Court tries individuals accused of crimes of great concern to the international community such as genocide, crimes against humanity and war crimes. The Rome Statute, ratified by 123 countries, is its founding document and clearly stipulates its remit. The court is a legal instance of last resort. It may not act if a case is investigated or prosecuted by a national judicial system unless these proceedings are fraudulent. The court can also only exercise its jurisdiction with states that have ratified the Rome Statute or if the crime was committed by a national of a state party or in the territory of a state party. The court thus does not have jurisdiction in a state that has not ratified the Statute. This exemption can be lifted if a state voluntarily and temporarily recognises the authority of the court or if the matter has been referred to it by the United Nations Security Council (UNSC). The ICC’s office of the prosecutor also has the authority to conduct a preliminary examination anywhere in the world. However the actual ability of the court to try a non-party national is complex and un-clear. In most circumstances the ICC cannot try a non-party national that has committed crimes in a non-party state without any of these two states recognising the authority of the court. A number of issues relating to the courts remit, such as its role in regards to the crime aggression or the extent of its international jurisdiction, are still debated. The lack of a clear and established position for the ICC has thus at times made it vulnerable to intense criticism often calling into question its legitimacy.
African states were early proponents of the court, as memories of the atrocities committed during the Rwandan Genocide and the civil wars in Democratic Republic of the Congo and Liberia were still raw. However relations have frayed in recent times. For many African leaders, the court is biased against the continent. In the words of President Omar Al Bashir of Sudan, himself facing indictments by the ICC for crimes committed in Darfur, the court has become “a tool to terrorize countries that the West thinks are disobedient”. During the 2013 African Union summit, amid calls by African Leaders for the court not to prosecute sitting leaders, the Ethiopian Foreign Minister Tedros Adhanom Ghebreyesus declared that “the court has transformed itself into a political instrument targeting Africa and Africans“. The core of the evidence boils down to a simple point: All the 10 cases, or situations as they are called by the ICC, with the notable exception of the Georgian situation involve an African state. However these figures can be misleading and misunderstood. Of the 9 situations concerning African states, 5 were brought by the relevant African governments themselves. The situations concerning Darfur and Libya were referred to the court by the United Nations Security Council. In essence, the ICC’s only two situations that have been, at a first glance, independently opened by the Prosecutors office are the cases of Kenya and the Ivory Coast. The case relating to crimes against humanity committed in Kenya during the post-election violence of 2007 – 2008 is at the centre of the confrontation. The reason being simple: the impetus for leaving the Rome Statute is primarily the result of the lobbying undertaken by the Kenyan government.
The reason behind the tremendous lobbying efforts of the Kenyan government are quite simple. The current President of Kenya, Uhuru Kenyatta, and his Vice President William Ruto were both indicted by the ICC for crimes against humanity following the Presidential elections of 2007. The President saw his charges dropped but his deputy had his charges confirmed and is currently on trial in The Hague. The matter of ICC involvement in Kenya is sensitive and has often been fuelled by allegations that ICC intends to destabilise the country or that it is a legal proxy of Imperialist policy. The current position of the Kenyan government in regards to the ICC is however fraught with hypocrisy and the result of a serious political miscalculation by senior Kenyan politicians.
In 2007, following disputed Presidential elections, the country erupted in violence which claimed over a 1000 lives and displaced over 500,000 people. The crisis was brought to an end by a power sharing agreement brokered by the former United Nations Secretary General Kofi Annan. One of the key clauses of the agreement was the establishment of a commission of inquiry into the violence: The Commission of Inquiry on Post-Election Violence (CIPEV), better known as the Waki Commission. The commission’s report advised, among other things, that the government establish a special tribunal of national and international judges in order to investigate and prosecute crimes against humanity. The Commission took it upon themselves to warn that if the Kenyan government was unable to set up the stipulated court, the findings of the Commission would be passed to the ICC. Throughout 2009, the Kenyan parliament twice voted against establishing the proposed court.
By refusing the establishment of a Kenyan court, Kenyan MPs willingly ensured that the ICC would thus intervene. Indeed, supporters of the current Vice-President William Ruto notoriously declared “Let’s not be vague, Let’s go to the Hague”. The most probable explanation for the gamble is that most politicians expected the case to be a long protracted battle in The Hague, which turned out to be a serious political miscalculation. Following unwillingness of the Kenyan parliament to establish the court in Kenya, the Waki Commission sent the relevant information to the Office of the Prosecutor. Luis Moreno Ocampo, the Argentinian ICC Prosecutor at the time, thus conducted his preliminary examination with the information provided by the Kenyan judiciary in the form of the Waki Report. The Kenyan situation highlights an interesting point: the ICC can at times be a useful political tool for certain leaders as much as it can be a nuisance further along the line.
The relationship between the ICC and African states regularly illustrates this dichotomy. As the situations in Uganda, the DRC, the Central African Republic and Mali clearly demonstrate, African leaders have most of the time energetically cooperated with the ICC when it suited their interests. Indeed, a vehement opponent of the ICC, President Yoweri Museveni was silent when Dominic Ongwen, a leader of the murderous Lord’s Resistance Army, was sent to trial at The Hague. The Congolese government has energetically delivered indicted former warlords such as Thomas Lubanga and Germain Katanga or remained silent in the case of political threats such as former vice-president Jean Pierre Bemba. The government of Ivorian President Alassane Ouattara has also closely collaborated with the ICC as his predecessor Laurent Gbagbo became the first former head of state to go on trial.
However, if President Ouattara seems to collaborate with the ICC when it comes to extraditing political opponents, it is doubtful that such cooperation will be forthcoming should close allies of the President be indicted. In essence, the ICC is a welcomed institutions for certain African leaders as long as the court does not impede on the power of the ruling elite. The case of the African Court of Justice and Human and Peoples’ Rights clearly highlights this fact. The African Union has recently re-enforced the remit of the court in order to establish a regional counter-weight to the ICC. However, the Malabo Protocol of June 2014, guaranties immunity for serving heads of states or government from the prosecution of the new regional court. The new African regional court could thus not prosecute any of the long-standing African leaders.
Regardless of the nature or reasons for the current predicament the ICC faces on the African continent, an accurate point has been made. The ICC, even if it has conducted itself according to its remit and through proper channels, has overwhelmingly targeted situations in Africa while overlooking other dire situations in other parts of the world. However, this is not the result of a large pro-Western grand strategy or an attempt to discredit African leaders, but the result of flaws in its jurisdiction and the unwillingness of global powers to cooperate.
Currently, 123 states are party to the Rome Statute. The largest geographical segment is overwhelmingly the African continent, with 34 African states having ratified the Rome Statute. The second largest geographical area in terms of states having ratified the Rome Statute is the Asia-Pacific region with only 19 states. This divide highlights the first problem the ICC faces: a vast proportion of states have not ratified or even signed the Rome Statute. The situation in North Africa and the Middle East, a hotspot of international geo-political tension, is striking: only Jordan and Tunisia have ratified the Rome Statute. Key regional actors such as Iran, Saudi Arabia or Israel are thus outside the direct remit of the court with the probability of this status changing becoming slimmer as the regions conflicts intensify. Conflict zones in the region such as Syria, Iraq and Yemen are also not included in the court’s direct jurisdiction.
It could be argued that the question of jurisdiction could be over-ridden by a United Nations Security Council resolution. However it is at the UNSC that the ICC faces some of its most powerful detractors. Certain members of the UNSC’s permanent five, including the United States, China and Russia have been notable critics and at times opponents of the ICC. The United States under the Bush Administration was especially hostile to the ICC by completely disengaging with the court and by securing Bilateral Immunity Agreements with a 100 countries in order to protect Americans from the ICC’s jurisdiction. The US has softened its approach after the policy had un-foreseen but serious ramifications on US interests and with the arrival of the Obama Administration. The American government however has continued to distance itself of the court. As permanent members with veto powers, any resolution empowering the ICC would most certainly be confronted by the political interests of the Great Powers. In March 2014, Russia and China vetoed a UNSC resolution that would have referred the conflict in Syria to the ICC. Taking into account recent air strikes on civilian targets in Syria by Russian forces, any change of demeanour is highly unlikely. In essence, the ICC has no remit or means by which to conduct any kind of inquiry against the major players of foreign affairs or in areas where their interests are too important. In regards to situations implicating European governments, the ICC faces the argument that it is an instance of last resort when the state party cannot fulfil its legal obligations. Most Western governments could easily argue that their legal systems seriously and adequately handle allegations of crimes against humanity. For example, the current work by the British government’s Iraq Historic Allegations Team (IHAT) demonstrates at least a willingness by the United Kingdom to uphold its human rights obligations. This does infer a certain favouritism for Western legal structures, which seems to automatically imply a certain sense of higher worth.
In essence, the ICC does not attempt to pro-actively undermine African states. The International Criminal Court lacks the institutional power and scope to be a truly impartial legal body, as its abilities are continuously kept in check by Great Power politics and by its muddled legal structure. African leaders are correct to point that the ICC is fundamentally flawed, however their reasoning is still marred in hypocrisy and reflects certain African leader’s intent at self-preservation. In order for the International Criminal Court to effectively counter these accusations it will have to develop into a court able to hold to account Great Powers and clarify its remit in order to impose its position. That however seems for the time unlikely.
Alexandre Raymakers is a graduate of the London School of Economics and Political Science holding a degree in International History and International Relations. He has extensive personal experience on the African continent having been born in Zimbabwe and lived in 4 different countries in Sub-Saharan Africa. He has previously worked for the Swiss Embassy in Kenya and has been working in Strategic Communications in London for the past year. His interests include International Security, African politics and European Affairs.
Cover image ‘International Court of Justice at The Hague‘ by United Nations Photo