Perceptions of the ICC in Africa have been damaged
by insufficient efforts on the part of the Court,
especially by Ocampo which led the AU to conclude
that the ICC was handing out “Ocampo’s justice” in
Africa. The “Bensouda effect” of an African jurist at
the Court’s helm has not yet dissipated the acrimony
between the ICC and the continental body.
More attention should be paid to addressing the
political, religious, ethnic, social, and economic
problems that spark the conflicts which lead to the
crimes before the ICC, than satisfying abstract legal
principles or punishing the offender.
African leaders unanimously agreed at a recent
extraordinary session of the Assembly of the African
Union that no sitting head of state on the continent
should be obliged to stand trial during his or her
tenure in order to “safeguard the constitutional
order, stability and integrity” of its 54 member
states.
Recognising the critical role that Kenya has been
playing in the fight against terrorism, the Assembly
further expressed concern that the continuing
prosecution of President Uhuru Kenyatta and his
deputy William Ruto by the Hague-based
International Criminal Court could prevent them from
fulfilling their constitutional responsibilities.
The Assembly also established a contact group of the
AU’s Executive Council to engage the United Nations
Security Council to push for deferral of the ICC’s
cases against Kenyatta and Sudanese leader Omar
al-Bashir.
The prosecution of Kenyatta and Ruto has clearly
exacerbated the Court’s turbulent relationship with
Africa.
There is a perception that the ICC is a Western court
employed to try African crimes, given its apparent
obsession with prosecuting Africans and portraying
Africa as the theatre of atrocity crimes.
READ: ICC and UN Security Council: Perceptions and
politics
This “Africanisation” of prosecutions seems to arise
from geopolitical pressures for the Court to avoid
confrontation with the major powers and its non-
African funders.
The ICC has turned a blind eye to equally serious
crimes in other parts of the world — such as
Chechnya, Palestine, and Sri Lanka.
The speed with which the Security Council referred to
the Court the situations in Sudan’s Darfur region in
2009 and Libya in 2011 — but not, so far, on Syria,
where over 100,000 people have died – supports the
suggestion that there is an anti-African bias at work
here.
Criticism that the ICC jeopardises political
settlements to make and keep peace in its pursuit of
justice was recently raised at a public dialogue held
by the Centre for Conflict Resolution in Cape Town to
discuss the Court’s role on the continent.
For example, despite the concerns raised by the AU,
the ICC proceeded to issue an arrest warrant for al-
Bashir in March 2009, a move that was vehemently
criticised by the continental body. Sudan is not a
member of the Court and three of the five members
of the Security Council — China, Russia, and the
United States — are themselves not members of the
ICC either.
The selection of cases by the Court — particularly
under its previous Prosecutor, Argentinian lawyer
Luis Moreno Ocampo (2003-2012) — has also tended
to favour “victor’s justice.”
For instance, in the case of Côte d’Ivoire, the
vanquished presidential contender, Laurent Gbagbo,
is now in the dock, while the victor in the violent
aftermath of the 2010 national poll there, Alassane
Ouatarra, remains free, despite his fighters also
being involved in atrocities.
In all the cases before the ICC, the Prosecutor has
focused on alleged abuses by rebel fighters to the
exclusion of those reportedly committed by
government troops.
The other problem is whether trying suspects in
Europe — at The Hague in the Netherlands — can
deter potential perpetrators in Africa. Justice
delivered where the evidence is, and where the
witnesses and victims reside, has a cathartic effect,
promoting healing and post-conflict reconciliation
more effectively than justice delivered in the remote
confines of the Court’s European dock.
The distance of the trial from the location of the
alleged crimes further limits the number of witnesses
who may be called by the Court, compromising the
quality of evidence presented.
However, the ICC’s new Prosecutor since June 2012,
Gambian jurist Fatou Bensouda, contends that the
Court is protecting Africans rather than “targeting”
them, since all the victims are Africans. She
maintains that her choice of cases is based on the
relative gravity of abuses and that the crimes
committed in Africa are among the world’s most
serious.
She also argues that the majority of cases such as in
the Democratic Republic of the Congo, Central
African Republic, Mali, and Uganda have been
referred by African states themselves, and that she is
also analysing situations outside the continent.
As to why the ICC has only focused on rebels and not
government troops, she contends that only
particularly serious cases can be considered by the
Court given its budgetary constraints. ICC supporters
also argue that national legal systems in Africa are
weak, which has allowed the Court to assert its
jurisdiction on the continent more effectively than
elsewhere.
The animosity directed towards the ICC by the AU is
partly inspired by the UN Security Council turning a
deaf ear to its request in 2009 to defer the al-Bashir
indictment. The continental body’s official position is
not to co-operate with the Court in the arrest and
surrender of Sudan’s president. The AU has also
rejected the ICC’s bid to establish a liaison office at
its headquarters in Addis Ababa.
The AU has highlighted “the need for international
justice to be conducted in a transparent and fair
manner, in order to avoid any perception of double
standards, in conformity with the principles of
international law.” However, the continental body
has made little or no mention of the interests of
victims in its public arguments against the Court.
Perceptions of the ICC in Africa have been damaged
by insufficient efforts on the part of the Court,
especially by Ocampo, to clarify the basis for its
prosecutions on the continent, which led the AU to
conclude that the ICC was handing out “Ocampo’s
justice” in Africa. The “Bensouda effect” of an African
jurist at the Court’s helm has not yet dissipated the
acrimony between the ICC and the continental body.
The AU’s position on the immunity of sitting heads of
state is still a contentious issue because Article 27 of
the Rome Statute clearly states that official capacity
shall not exempt a person from criminal prosecution.
By signing the Rome Statute, state parties waived
the immunity of their own leaders.
In this context, the AU’s threat of non-cooperation
with the ICC could motivate the Court to issue arrest
warrants for Kenyatta and Ruto. An alternative
approach would be for the AU to seek to persuade the
UN Security Council to defer the prosecutions under
Article 16 of the Rome Statute, which allows for
annual deferrals that can be renewed indefinitely.
The AU should allow the Court to open a liaison office
in Addis Ababa, which would help to demystify the
ICC’s work on the continent and keep open the lines
of communication between them.
The Court should extricate itself from the
entanglements of global power politics and
demonstrate its independence.
If African governments can strengthen the integrity
and capacity of national and continental courts to
facilitate the arrest, extradition, and prosecution of
their own, they can force the ICC to focus elsewhere.
If African leaders do not want the ICC to represent
victims and pursue perpetrators of crimes on the
continent, they should stop committing, or
apparently supporting the commission of, such
crimes.
Judicial proceedings, which are adversarial in nature
and aim to declare guilt or innocence, may not settle
questions pertaining to the root causes of conflicts in
which neither side is wholly innocent or entirely
guilty.
Therefore, more attention should be paid to
addressing the political, religious, ethnic, social, and
economic problems that spark the conflicts which
lead to the crimes before the ICC, than satisfying
abstract legal principles or punishing the offender.

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