TJ Monitor: The ICC and Africa – Impunity vs Self-interest

When the Rome statute entered into force on the 1st of July 2002, the International Criminal Court was born with the objective to help end impunity for perpetrators of the most serious crimes of concern to the international community. The said crimes include war crimes, crimes against humanity, genocide and crime of aggression. This move by the international community was particularly embraced by many African countries which without much ado pledged their support for it by signing the treaty their by becoming member states. The following chronicle may be useful background to the ensuing discussion.

The African states were at the forefront of discussions and endorsement of a permanent international criminal court.  Senegal was the first country to ratify the Rome statute. In fact we have over 33 member states of the Rome statutes from Africa,  making it the continent with the biggest block membership.

In December 2003, the President of the Republic of Uganda, Yoweri K. Museveni took the decision to refer the situation concerning the Lord’s Resistance Army (LRA) to the office of the Prosecutor of the ICC, this led to the issuance of warrants of arrest for the top five commanders of the LRA – Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. Vincent Otti and Raska Lukwiya have since died leaving the other three still at large.

The Democratic Republic of Congo (DRC) also referred its situation to the office of the Prosecutor where five cases were brought before the relevant chambers to wit Thomas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga, Mathieu Ngudjola Chui, Calixte Mbarushimana and Sylvester Mudacumura. Thomas. Lubanga has since been convicted, Germain Katanga remains in custody while Mathieu Ngudjola has been acquitted. And of recent Ntaganda surrendered to the ICC and is now facing trial in The Hague.

In December 2004, the Government of the Central African Republic (CAR) referred the situation in CAR to the ICC, after which the prosecutor opened an investigation in May 2007 resulting in The Prosecutor v Jean Pierre Bemba Gombo.

Following in the footsteps of her “sister countries” on the 16th Jan 2013, Mali referred the situation in West African nation to the ICC. This led to the opening of an investigation into alleged crimes committed on the territory of Mali since 2012.

Although Cote d’Ivoire is not a party to the Rome statute, it accepted the jurisdiction of the ICC on the 18th April 2003 which was reconfirmed on both 14th Dec 2010 and 3rd May 2011.

It should be noted that the above were willfully referred to the ICC by the various African states based on the perception that the ICC would provide a lasting solution to ending internal and external threats to governments by warding off would be party spoilers (rebels with intentions of toppling governments and creating instability).

A change of attitude towards the ICC came when the Court issued warrants of arrest for sitting Sudanese president Omar Al Bashir in 2008 for crimes committed in the Darfur region. In 2010, the court agreed to the prosecutor’s request to open investigation in Kenya resulting to the indictment of Uhuru Kenyatta and William Ruto who are currently the president and deputy president of Kenya. In 2011 and 2012 arrest warrants were issued for the former president of Cote D’ Ivoire Laurent Gbagbo and the countries’ First Lady Simone Gbagbo respectively.

Since then, African leaders have come together as one under the African Union to condemn the once desirable ICC and accuse it of conducting a “race hunt”. In their search for an escape, they are now proposing an ‘African’ response to international crimes in the ambit of existing regional legal structures like the African Court on Human and Peoples’ Rights. The question is whether this is a move motivated by genuine complaints of discrimination or protection of individual interests. You be the judge!

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