Columnists Features

Case against ICC in Africa

KELVIN KACHINGWE, Lusaka
AT the last summit of the Assembly of the African Union (AU) in January in Addis Ababa, Ethiopia, member states resolved on a non-binding resolution for a mass withdrawal of African countries from the International Criminal Court (ICC).
The main reason cited was the impartiality of the court.
The announcement by the AU followed decisions by South Africa, Burundi, and The Gambia to withdraw.
The South African case is interesting.
Africa’s most developed economy announced that it would be withdrawing from the ICC after it received condemnation from the court for not arresting Sudanese President Omar Hassan al-Bashir, who faces five counts of crimes against humanity, two counts of war crimes and three counts of genocide.
The Sudanese President was in South Africa in 2015 for an AU summit. The South African government had claimed that al-Bashir was immune from prosecution despite an arrest warrant from The Hague-based court.
The Pretoria government is however not the only one that has not arrested al-Bashir, who is the only sitting President with an outstanding arrest warrant from the ICC.
Other countries that have ignored calls to arrest al-Bashir include Uganda, Chad, Kenya and Djibouti.
The Sudanese leader has travelled to a number of countries since 2009 when the ICC issued an arrest warrant for his arrest for alleged crimes in Darfur.
The ICC was formally established in 2002 after the adoption of the Rome Statue of the Court in 1998. The adoption was determined by a vote of 120 against seven, the seven being the United States (US), China, Iraq, Libya, Qatar, Israel and Yemen.
You can say it had teething problems from the start because of non-ratification by all state parties, particularly the US, which for long has acted as the world’s police.
The primary purpose of establishing the ICC was to provide justice when national systems failed.
In its own words: “The International Criminal Court investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes and crimes against humanity.”
The court prides itself in participating in a global fight to end impunity by holding those responsible accountable for their crimes and to help prevent these crimes from happening again.
“The court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court,” reads the court’s website.
“Justice is a key prerequisite for lasting peace. International justice can contribute to long term peace, stability and equitable development in post conflict societies. These elements are foundational for building a future free of violence.”
The ICC’s Office of the Prosecutor, currently headed by Fatou Bom Bensouda of The Gambia, a country which during the reign of former leader Yahya Jammeh, had indicated its intentions to withdraw, is said to be an independent organ of the court.
The Prosecutor conducts preliminary examinations, investigations and is the only one who can bring cases before the court. However, the ICC also regards a strong defence as a key component of a fair trial as it represents and protects the rights of the defendant or rather the suspect and accused.
“Defendants are presumed innocent until proven guilty after a trial; they are entitled to public, fair proceedings conducted impartially and in full equality,” the court says.
“The Rome Statute grants the defendant the right to be informed of the charges, to have time and facilities to prepare their defence and to be tried without undue delay, to freely choose a lawyer, to examine witnesses and present evidence, not to be compelled to testify or to confess guilt.
“To remain silent, to receive from the prosecutor evidence which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, to be able to follow the proceedings in a language he or she fully understands, and therefore to have an interpreter and translations as required, and more.
“The court’s legal aid system ensures that the reasonable cost of legal representation is paid by the court for persons who do not have sufficient means to pay for it.”
But the argument by most countries in the AU is not that most of the persons referred to the ICC have not been provided with sufficient representation, it is that the court is unashamedly biased against Africans.
But it is a highly-debated issue, even within the ranks of the AU.
In fact, Elise Keppler, the associate director for the Human Rights Watch’s International Justice Programme, which works to promote justice and accountability for genocide, war crimes, and crimes against humanity by monitoring the work of the ICC, says the reality on the withdrawal by the AU is more complex.
“There was vocal opposition by ministers to the withdrawal. The Nigerian foreign minister said that the ICC has ‘an important role to play in holding leaders accountable’, and that ‘Nigeria is not the only voice agitating against [withdrawal], in fact Senegal is very strongly speaking against it, Cape Verde, and other countries are also against it’,” Keppler wrote.
“Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by the heads of State. Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it.”
Zambia is expected to give its position on the matter during the next summit of the Assembly of the AU scheduled for around June or July this year.
It is in this regard, that Cabinet authorised Minister of Justice Given Lubinda to initiate and spearhead a countrywide consultation process on Zambia’s position on its membership to the ICC and prepare a report on the findings.
It is anticipated that the report from the consultation process will be concluded by May and will be a basis upon which Cabinet will make a decision on behalf of Zambia to withdraw or to remain a member of the ICC.
But unfortunately, the consultation process in Zambia has been largely absorbed on the reported K2 million expenditure for the exercise.
Anyhow, at its summit, the African leaders are reported to have adopted a strategy with regard to the ICC. But Elise Keppler says the draft of the strategy, obtained by The Associated Press, recommends that African countries strengthen their own judicial mechanisms and expand the jurisdiction of the African Court of Justice and Human Rights in order to reduce the deference to the ICC.
The ICC has been part of the global justice system since 2002. Its biggest case is the accusation by Africans of bias.
Its record is tilted towards Africans.
The first verdict involved Thomas Lubanga, the leader of a militia in the Democratic Republic of Congo who in 2012 was convicted of war crimes relating to the use of children in that country’s conflict.
Former Ivory Coast President Laurent Gbagbo is the highest person to be taken to the court. In 2011, he was charged with murder, rape and other forms of sexual violence, persecution and other inhumane acts.
Kenya’s President Uhuru Kenyatta was indicted in 2011 in connection with post-election ethnic violence in 2007 but the charges were dropped in 2014.
Joseph Kony, leader of Uganda’s rebel movement, the Lord’s Resistance Army, is among those wanted for crimes against humanity and war crimes, including abduction of thousands of children.
The case of the Sudanese President is a longstanding one.
There was an exception in 2015 when the ICC started an investigation into the 2014 Gaza conflict; the United Nations report had found evidence of war crimes by both Palestinian militant group Hamas and the Israeli military.
Still, in its history, the ICC has only brought charges against black Africans.
In November last year, Russia announced that it was withdrawing from the founding statute of the ICC after the court published a report classifying the Russian annexation of Crimea as an occupation.
Although Russia had signed the Rome Statute in 2000 and cooperated with the court, it had not ratified the treaty and thus remained outside the ICC’s jurisdiction. Its decision to withdraw was therefore just symbolic.
Taking a cue from Russia, Philippine President Rodrigo Duterte threatened to withdraw his country from the court’s membership.
“They are useless, those in the international criminal [court]. They [Russia] withdrew. I might follow. Why? Only the small ones like us are battered,” Duterte was reported saying.
Regarding the treatment of Africans, the ICC chief prosecutor said: “The ICC is working with Africa, and working for African victims, so I don’t think the African Union should be against that.”
But that is where the consultation process comes into play.

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