Africa and the International Criminal Court (ICC)

Since 122 countries signed the Rome Status on July 1, 2002, formally establishing the International Criminal Court (ICC) that sits in the Hague in the Netherlands to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes, a total of 39 individuals (all Africans) have been indicted by the court. This has recently led to accusations by mostly African countries that the court targets only Africans. Consequently, South Africa, Burundi, and the Gambia have given formal notice of withdrawal from the Rome statute. There are fears that the withdrawals will lead to a walk-out on the courts by African states, which will ultimately lead to the collapse of the court. Thankfully, Nigeria’s President indicated some weeks back that the country has no intention of backing out of the Rome Statute. This is reassuring!

True, the court has been court up in high wire geopolitics and super power contestations. The United States, Russia, China, Japan, India, Pakistan, Israel and Turkey have not ratified the treaty. In fact, Russia, last week, withdrew from the court. The United States signed the Rome Statute of July17, 1998 but did not ratify the treaty, accepting the jurisdiction of the courts over its personnel. It withdrew from the Rome Statute in May 2002, rejecting the courts authority over its personnel. In such circumstances, the court is hamstrung and cannot try citizens of such powerful nations.

Africa’s submission to the ICC therefore exists within political and structural inequalities in the global arena. But that is the world we live in. But the court’s importance must not be in doubt. Most African and third world states suffer from severe institutional constraints and absence of laws that the local courts are unable or even incapable of providing justice or holding to account those who commit offences within the jurisdiction of the courts. In fact, in most African states where there are conflicts, the states themselves are the criminals. For instance, Amnesty International has detailed reports of how Nigerian government forces deliberately and massacred members of the Shiite Islamic Movement of Nigeria (IMN) in Zaria and members of the Independent State of Biafra (IPOD) in cold blood and it is clear no one can hold anyone to account for the crimes within the country. For the victims of such crimes, only the ICC presents a ray of hope that the victims will get a modicum of justice. To take that away is to leave majority of the world population vulnerable to the capricious nature of unrestrained politicians and criminals.

Is it any wonder that most of the cases involving Africans have been reported, investigated, prosecuted and adjudicated largely by Africans who are frustrated by the failure of the African Union and their nation states to prevent such abuses in the first place or hold leaders accountable for their actions.  Six of those cases were brought to the court by African governments. That of Jean-Pierre Bemba, a former Congo DR warlord – head of the Movement for the Liberation of the Congo—and a former vice-president of the same country convicted of crimes against humanity, of rape and pillage in relation to the conflict in the Central African Republic between October 26, 2002 and March 15, 2003 was referred by the Central African Republic in 2004. That of the post-election violence in Kenya was also referred to the court by the mediator in the crisis – Kofi Annan – an African and former Secretary General of the UN. In any case, the court’s chief prosecutor, Fatou Bensouda is from Gambia while the senior trial lawyer, Jean-Jacques Badibanga is from the DRC. A number of the judges who sit on the cases are also Africans.

Of course, African states have a right to be aggrieved that the courts only target Africans. But it is precisely because African states do not have the capacity to hold offenders to account or are themselves the criminals. Africans have not shown the capacity to manage their conflicts. Until they do so, it is only proper that the ICC continues to hover over the leadership, instilling the fear of justice on its rapacious and bloodthirsty leadership.