The International Criminal Court (ICC) has, so far, indicted 27 Africans from seven countries, prompting African leaders, this week, to question why the gaze of international justice falls in some places and on some people and not others.
The extraordinary weekend summit by the African Union (AU), in opposition to ICC, arose with specific reference to the on-going cases against the newly elected leaders of Kenya, President Uhuru Kenyatta and his vice, William Ruto.
It is to be recalled that in its May 2013 summit, the AU Assembly took the decision requesting the ICC to refer the cases back to Kenya. On July 8, the AU sent a letter to the ICC President, communicating the decision of the assembly and urging the ICC to allow a national process to deal with the cases.
In the meantime, the ICC commenced the trial of Kenya’s vice president, William Ruto, last month. In what many African governments have since considered to be a further disregard of their voice, an earlier decision of allowing the trial of Kenyan leaders in their absence was suspended, pending the decision of the appellate Chamber of the Court on the Prosecutor’s appeal for reversing that decision.
In another letter addressed to the ICC, the AU reiterated its earlier communications to the ICC, requested the Court ‘to allow the Head of State of Kenya and his deputy to choose the sessions they wish to attend’, having regard to the constitutional obligations that they are required to discharge as leaders of Kenya’s popularly elected government.
This is a tension seemingly between the requirements of international justice within the framework of the ICC and an outcome of an electoral democratic process.
Does it mean Africans are the only people in the world who commit the gravest war crimes and crimes against humanity? Is there a political reason behind the focus on Africa?
The African Union this week said: “The abuse and misuse of indictments against African leaders have a destabilising effect that will negatively impact on political, social and economic development of member states and their ability to conduct international relations…”
The opposition of many African governments to the ICC is not new. Since 2008 when Moreno Ocampo, former ICC Prosecutor, launched charges against Sudanese President Bashir, African governments, acting within the framework of the African Union, issued a number of declarations expressing increasing discontent about the process of the ICC on the content.
The ICC was embraced with enthusiasm by a wide range of people, NGOs and governments when it came into being on 1 July 2002. Many of those who initially welcomed it were African.
Africa is the continent with the largest regional grouping of member states of the Rome Statute. While there are 122 states that are party to the ICC, 34 of them are African states. Now, this largest regional membership of the ICC is under threat.
It has now reached a new height following the weekend’s summit to discuss on the mass withdrawal of African member states of the Rome Statute, establishing the ICC. The resort to such extraordinary measure, unprecedented in the history of the international legal order, has understandably sent shockwaves across many capitals in Europe and among the mainstream international human rights community. Why? Could it be for justice, or rather our resources?
Of all people, former US President George W. Bush should have been tried by now. Yet, more than three African Presidents know the day they leave office, they will be hunted down like former Liberian President Charles Taylor whom the ICC condemned to a prison in the United Kingdom recently.
The problem with the African leaders is they fail to rally over the restructuring of the UN Security Council where most decisions are made but come together when they fear for their personal future after they leave power.
The UN Security Council says no in the case of Cambodia, Mozambique, Iraq and other places where terrible war crimes have been committed but yes, in the case of Yugoslavia and Rwanda.
The court has become political and economic, not discriminative as African leaders want to put it.
In Uganda, the ICC has charged only the leadership of the rebel group, LRA, not that of the pro-US government headed by President Museveni. In Sudan, the ICC has charged officials of the Sudan government. In DRC, the ICC has remained mum about the links between the armies of Uganda and Rwanda – both pro-US – and the ethnic militias that have massacred civilians.
Although the ICC, according to Jacqueline Geis and Alex Mundt, was established as an impartial arbiter of international justice, both the timing and nature of its indictments issued to date suggest that the intervention of the ICC in situations of ongoing conflict is influenced by broader external factors.”
“Broader external factors” bring into sharp focus the indictment by the ICC of the ex-Libyan leader, Muammar Al Gadhafi, during the NATO war in Libya. Gadhafi’s indictment contrasts starkly with the ICC’s silence on the presidents of Syria, Yemen and the King of Bahrain where similar “war crimes” and “crimes against humanity” as alleged by the ICC to have occurred in Libya under Gadhafi, have happened over the past year.
Why Africa? The naked truth
The court is meant to protect vulnerable people from brutal national rulers but now is an instrument of power against vulnerable countries.
Die-hard supporters of the ICC have tried to explain away its focus. When asked in 2005 about the fact the ICC’s only referrals up to then had been African, Judge Goldstone replied; “It is a coincidence that the first four cases have come from Africa.”
By February 2006, the ICC prosecutor had received 1 732 communications alleging crimes worldwide. As of 4 October 2007, the Office of the Prosecutor had received 2 889 communications about alleged crimes in at least 139 countries. As of 1 February 2006, 60% of the communications had originated in just four countries: the USA, UK, France and Germany.
As of July 2009, the prosecutor reported his office had “received over 8 137 communications from more than 130 countries. Yet, despite all these complaints, the ICC has started investigations into just seven countries, all of them African: Uganda, DRC, Central African Republic, Sudan, Kenya, Guinea, Côte d’Ivoire, Libya; and has indicted 27 people, all of them again Africans.
When pressed on the fact that all his cases and investigations have been in Africa and nowhere else, Moreno-Ocampo has always defended this narrow focus by claiming they were all “self-referrals” by the African countries themselves, or in the case of Sudan, by the UN Security Council. But this is a deceit! The ICC brought considerable pressure to bear on both Uganda and DRC to refer themselves to the Court.
The truth is, Ocampo made it very clear to both the DRC and Uganda he had been “closely analysing the situation in the DRC since July 2003. In September 2003, Ocampo informed the states parties he was ready to request authorisation from the Pre-Trial Chamber to use his own powers to start an investigation but that a referral and active support from the DRC would assist his work”. In autumn 2003, Ocampo said he was ready to act but pointed out he preferred to wait for the Congolese government to ask him to intervene.
In contrast to the ICC action in Africa, the Office of the ICC prosecutor reported in February 2006 it had received 240 communications in connection with the invasion of Iraq in March 2003, which alleged various war crimes had been committed. Many of these complaints concerned the British participation in the invasion, as well as alleged responsibility for torture deaths whilst in detention in British-controlled areas.
On 9 February 2006, Ocampo published his response to all those who had raised the issue of Iraq, which included the allegations in respect of the targeting of civilians or clearly excessive attacks; wilful killing or inhuman treatment of civilians. Ocampo stated there was insufficient evidence... and the situation in Iraq did not appear to meet the “gravity” threshold necessary to initiate any such investigations and that there was a reasonable basis for believing there had been an estimated four to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totalling in all less than 20 persons.
The ICC has also turned a blind eye to a range of crimes that would seem to fall within its legal mandate committed by Western security companies in Iraq. These include a September 2007 shooting incident in Nisour Square in Baghdad in which the Iraqi government said contractors from [a US security company] killed 17 Iraqi civilians and wounded more than 20 others.
The ICC also continues to ignore the situation in Iraq, as it does events in Afghanistan and Gaza and the Occupied Territories in Palestine.
In 2008, the UN reported that the US, NATO and Afghan forces were responsible for over 828 civilian deaths in Afghanistan. Most of these were the result of the US and NATO air strikes. In effect, the death of more than 90 Afghan civilians and the injury to dozens more, in a military air strike (one of many such air strikes resulting in civilian fatalities) are ignored by the ICC. Yet, the death of 57 to 157 protestors during a demonstration in Conakry, Guinea, is the subject of an official ICC investigation.
Any examination of the ICC’s budget clearly shows the Court is umbilically tied financially to the European Union (EU), which provides over 60% of its funding.
No wonder the former British foreign minister, Robin Cook, said before he died: “If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.”
Given Africa’s traumatic experience with the very same colonial powers that now in effect direct the ICC, it is an unfortunate case of déjà vu.
The ICC has now emerged as a de facto European court, funded by Europe, directed by Europe and focused almost exclusively on the African continent, thereby serving Western political and economic interests in Africa.
There are deep concerns not just about the ICC’s acute financial dependence upon Western European funding, corrupting the Court’s legal independence but also on the all-too-obvious inefficiencies in how that money is used.
The amount payable by each state party is determined using the same method as the United Nations: Each state’s contribution is based on the country’s capacity to pay, which reflects factors such as national income and population.
The maximum amount a single country can pay in any year is limited to 22% of the Court’s budget. in 2007 alone, the ICC spent around N$1b.
The EU, through its member states, paid 60% of the 2009 budget of N$1.5b.
The biggest contributors to the ICC’s budget that year were Germany with N$180m (almost 14%); the UK with N$120m (10%); Italy with N$95m (8%); France with N$95 (8%) and Spain with N$50m (4%). The five dominant EU countries paid 44% of the budget.
There is, as always is the case, a direct relationship between levels of payment and control.
Secondly, in the section of the ICC’s own website entitled, “How is the Court funded”, the ICC interestingly reveals it also receives money from “international corporations, individuals and other entities”. No details are provided for this funding line and mysterious donors.
The thought of private interests such as major multinational businesses helping to finance a judicial organisation is one that should be of great alarm to all those who believe in the rule of law.
Alas, the ICC and Europe are targeting Africa at a time when the continent is asserting its political and economic independence.