THE ICC CELEBRATES 10 YEARS: THE IMPLICATIONS FOR AFRICA
Monday, July 30, 2012
On July 17, 1998, a conference of more than 160 states established the first treaty-based permanent International Criminal Court (ICC). This court has the mandate to investigate and prosecute individuals for war crimes, crimes against humanity, and genocide. The court’s treaty, known as the Rome Statute, also provides for reparations for victims. Ten years ago this month, the Rome Statute went into force.
The ICC has strong support in Africa – 33 of the 121 countries that have become parties to the Rome Statute are African States. This means that Africa comprises the largest regional block of the court’s members. In addition, Africans have been appointed senior officials at the court. Most recently, Chile Eboe Osuji from Nigeria was elected an ICC judge. Fatou Bensouda from the Gambia was appointed the ICC’s new prosecutor. In fact, 4 of the 18 current ICC judges are African and almost 200 out of around 850 staff are African, from 30 countries.
During the ICC’s Review Conference in Uganda in May 2010, African leaders reiterated strong support for the ICC. In addition, African governments have expressed their readiness to cooperate with the court in executing ICC arrest warrants. This includes commitments by Malawi, South Africa, and Botswana to arrest a sitting head of state Omar al-Bashir of Sudan, who is sought for crimes in Darfur if he enters their countries.
But the ICC has not been without controversies and criticisms in Africa. The African Union (AU) and some African leaders have accused the ICC of being a new instrument of colonialism and of having a rather peculiar focus on Africans. They claim that the ICC prosecutor’s cases have disproportionately focused on Africa, including targeting two sitting African heads of state, al-Bashir and Muammar al Gaddafi, when he was still in power in Libya. This has led to AU calls to its members not to cooperate with the ICC arrest warrants for these leaders.
But while it is true that most of the ICC’s work has focused on Africa, the ICC’s target is impunity, not the continent. In the court’s investigations in Democratic Republic of Congo, northern Uganda, Kenya, Darfur, Central African Republic, and Libya, African victims are being served by this court‘s work to hold perpetrators to account.
Indeed, many Africans with whom I interact view the ICC as a long awaited instrument to end impunity by the ruling classes. ICC prosecutions have been praised by African civil society and especially African human rights advocates.
The ICC is an imperative for all African nations, as it remains the only permanent institution that can prosecute genocide, war crimes and crimes against humanity when national courts are unable or unwilling. The ICC is a court of last resort; it will only investigate or prosecute cases of the most serious crimes by individuals, and then, only when national judicial systems will not or cannot handle them.
The proposed expansion of the jurisdiction of the African Court of Justice and Human Rights to prosecute international crimes as well needs to be approached with caution. While welcoming this development in principle, Africans have also expressed a number of concerns. One important issue is ensuring sufficient support for the court to function as a just, credible and independent regional criminal court that is beyond the reach of politics.
In addition, there is the question of reparations for victims. To date, the African Union has paid little or no attention to that issue. The AU also needs to weigh the implications of the expansion toward a criminal jurisdiction on the court’s human rights mandate, especially given the financial burdens of prosecuting complex crimes. Expansion should not reflect an impressive legal instrument adopted by African states that never translates into practice. All too often this has been the case in Africa.
Further, any criminal mandate for the African Court should not impede the International Criminal Court’s mandate to ensure justice for international crimes. The documents that have considered the establishment of this Court have been silent on the African Court’s relationship with the ICC. Ultimately one must ask whether an expanded African Court is more to serve Africa’s political leaders or Africans.
That Africa has witnessed mass atrocities and been subjected to impunity especially occasioned by its leaders is common knowledge; the wars in Sierra Leone, Liberia, Somalia and other numerous conflict situations characterized by international crimes in Africa buttress this fact. African leaders have played a central role in most of these conflicts. Any advocate for change in Africa therefore will readily agree that the African Union’s perception about the ICC is grossly misplaced. The ICC provides hope for Africa and African victims of mass atrocities.
Author: Obiageli Oraka