Africa and the ICC: the myths, facts and politics

The African Union (AU) celebrated its golden jubilee last month. Having started as the Organization for African Unity (OAU) it subsequently changed its name to AU in 2001 but came into legal existence in 2002 through its Constitutive Act. It has the objectives of inter alia promote peace and security on the continent.

Among the rafts of issues – on peace and security – discussed at its 23rd Summit was the Kenyan cases at the International Criminal Court (ICC). The AU chair who is also the Ethiopian Prime Minister read out a communique after the session. Therein he stated that the court was engaged in a ‘racial hunt’ implying that the ICC is unfairly targeting African countries. He also said that all the situations at the court were African and that all the persons before it were consequently African. This this week’s entry looks into the myths, facts and politics (read perception) of the ICC in Africa.

Question: Are all the situations and cases (difference being that situations are country specific and cases are individual specific) at the ICC African?

Answer: YES!

There are eight situations at the ICC. These are situations in the Central African Republic, Democratic Republic of the Congo, Ivory Coast, Kenya, Mali, Libya, Sudan and Uganda. HOWEVER it would be too temerarious to make such a conclusion without ruminating on the jurisdiction of the ICC, thus caution ought to be exercised in using this fact as proof of malfeasance on the part of the court or the powerful in the international system. Many observers argue that this is living proof that the ICC is either being used as an instrument of neo-colonialism by western powers bent on implementing their policies in Africa or a tool for a rogue prosecutor with nefarious intentions for the continent. Please read on to see just how inaccurate this assessment maybe.

Question: Is the court an instrument of western powers?

Answer: NO!

There are three ways through which the ICC is seized of a matter. The first is through a referral by the concerned state itself as is the case with Central African Republic, Democratic Republic of the Congo, Mali and Uganda. The second in through a referral process by the United Nations Security Council (UNSC) as was the case in Libya and Sudan. The last one is through the prosecutor’s own motion and the examples here are Ivory Coast and Kenya.

Out of the eight only two situations were presented to the ICC through the UNSC. Accepting (rather assuming) that the UNSC is controlled by those with veto power – in as much as it has 10 other non veto wielding members – and that this is the way these western powers would use to allow the court to intervene in African affairs, I will assume (for the moment) that it is the body that is being accused of sending Africans to the Hague. However out of the five members that have the said power, only three are western European; relevance of who has veto power does not arise as it takes only one veto to torpedo an entire resolution – case in point is the Syria debacle.

Further, I examined how the UNSC voted on the two African cases. On the Sudan case, the UNSC passed in Resolution 1593 (2005) with 11 for, none against and 4 abstentions. Curiously, Algeria, Benin and the United Republic of Tanzania voted for the matter to go before the ICC citing, among other things, fighting impunity in the continent. Also equally interesting is that China and the USA abstained from taking a vote; one of which is being accused of using the court to drive is foreign policy in Africa.

The Libyan case also presents the same scenario. Interestingly the UNSC was unanimous in it Resolution 1970 (2011) to refer the situation in Libya – which was going through a bitter revolution – to the ICC. Gabon, Nigeria and South Africa supported the move, never you mind that the person they were sending to the ICC ‘gallows’ was a chief adherent, advocate and later the embodiment of Pan-Africanism. So, is it really feasible to purport that the western powers are using UNSC to hit out at unfavorable African governments?

Into the bargain, another spurious argument that is usually presented is that the African states were somehow coerced to vote the way they did. Without any cogent evidence of this claim, I would treat that as mere conjecture to justify the position that UNSC is being used by western powers. I see no evidence of sufficient probative value to safely conclude that there is a witch hunt on the part of UNSC.

Question: Is the Prosecutor unfairly targeting African states?

Answer: NO!

Again, of the eight situations in the court, only two – or 25% if you like – were initiated by the Prosecutor: Ivory Coast and Kenya. But even this is not accurate enough. In the case of Kenya, the state was given an opportunity to create a local judicial mechanism to try the post election violence cases. It failed with a section of parliamentarians – and some accused persons now before the court – joining the bandwagon of those raising the clarion call ‘don’t be vague, go to the Hague!’. It was at that point the Prosecutor decided that it was time to initiate the proceedings; Kenya – in other words – had the opportunity to avoid the Hague. Therefore it is only Ivory Coast situation that, I think, would warrant to be categorized as initiated by the Prosecutor on his own motion in the strictest sense as they never had the same opportunity Kenya had.

So? This means that half of the situations at the Hague were taken there by African Governments. Secondly, it means that African states seating at the UNSC at the time when Libya and Sudan situations were being referred consciously voted for the position. Thirdly, the cases in Kenya and Ivory Coast – and I single out Kenya – were brought about by the actions or inactions of their respective Governments.

In conclusion, I find it imperative that the ICC narrative sticks to the facts rather than fallacies and half-truths. I leave you, the reader, to convince yourself of the veracity of the arguments presented by the group that seeks to direct African public opinion in a particular direction versus the actual historical events and draw your own conclusions.

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