Impunity for Africa’s “Big Men” – Africa’s touted withdrawal from the International Criminal Court

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On 12 October 2013, African leaders gathered in a two-day extraordinary session of Heads of States of the African Union to discuss Africa’s relationship with the International Criminal Court (ICC).

In a curious show of solidarity, the session took a far-reaching decision that –

“ to safeguard the constitutional order, stability and, integrity of Member States, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.”

This was not the first clash between the AU and the ICC. The AU took previous decisions on the “abuse of the principles of Universal Jurisdiction” (in Sharm El Sheikh in July 2008), as well as other decision on the activities of the ICC in Africa (in January and July 2009, January and July 2010, January and July 2011, January and July 2012, and May 2013).

In these previous decisions, the AU expressed “its strong conviction that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.”

The motivation behind the AU’s apparent hostility towards the ICC appears to be the “concern on the politicization and misuse of indictments against African leaders by ICC”. Put simply, the AU is concerned that the ICC is “targeting Africans”.

Targeting Africans (a neo-colonialist court)?

This concern has been uttered in various forms by commentators and public figures. For example: Tedros Ghebreyesus, Ethiopia’s Foreign Minister, is quoted saying that the ICC “has transformed itself into a political instrument targeting Africa and Africans. This unfair and unjust treatment is totally unacceptable.”

Others, like Fred Kennedy Nkusi, put the criticism more crudely, that “the ICC is a hegemonic tool of the neocolonialists intended to exert power on internal matters of Africans.”

Indeed, all of the 15 cases currently before the ICC are against Africans. This fact has been employed by ICC critics to support the assertion that the ICC is being used by powerful western powers (specifically Washington, Paris and London) to punish ‘recalcitrant’ African leaders.

In this regard, Zaya Yeebo argues that – Colonel Gaddafi’s son, who was indicted in 2011 and Charles Taylor, who is currently serving a sentence in The Hague, were indicted only after personal clashes with western powers.

William Schabas, the chairman of the Irish Centre for Human Rights at the National University of Ireland, argues that the ICC’s (former) lead prosecutor [ Jose Luis Moreno Ocampo] has “avoided situations where he would likely step on the toes of permanent members of the UN Security Council, from Afghanistan to Gaza, to Iraq, to Columbia.”

Response of the ICC

The ICC’s response has been to point to the case selection mechanism and the limited role played by the Office of the Prosecutor (OTP) in instituting investigations.

The OTP generally does not institute investigations and prosecutions on its own accord (proprio motu). There are four ways to institute an investigation and prosecutions before the ICC: (1) referral by a state party, (2) referral by the United National Security Council (UNSC), (3) an external communication, or (4) a proprio motu investigation by the OTP.

Article 53 of the Rome Statute contains a comprehensive legal framework for selection of situations (prosecutions) once a referral or communications has been received.

In respect of external communications, the OTP only plays an active role once it has received an external communication regarding an alleged international crime. The OTP filters out communications that fall outside the jurisdiction of the court. In this regard, the OTP exercises a degree of discretion. Referrals by a state party or the UNSC bypass the filtering phase.

The OTP has, to date, only instituted two proprio motu investigations, both in respect of post-election violence in Kenya and Ivory Coast.

Professor Jan Wouters of the Catholic University of Leuven (Belgium) has pointed out –correctly in my view– that the source of conflict between the ICC and Africa is the exercise of prosecutorial discretion in terms of Article 53 of the Rome Statute. It is not so much that the OTP targets African nations, but that the OTP has adopted a strategy that focuses on communications and referrals about Africa.

The AU protecting Big Men?

If the ICC’s poor strategy does not amount to targeting Africans, what then is the motivation behind the AU’s hostility?

The ICC has targeted African-so-called-leaders accused of grave crimes, not against the international community but against Africans! These are men like Lubanga, Katanga, Ngudjolo and Bemba, Joseph Kony and Al Bashir. If these men are innocent, why do they object to facing their day in court?

The ICC operates on the same principle of “innocent until proven guilty”.

If the procedure before the ICC is transparent and fair, and accused persons get equal opportunity to defend against allegations, what then is the AU’s objection?

The allegation is not that Africans are being judged unfairly by the court or that Africans are subjected to unfair hearings. The objection is simply that Africans alone are being called to answer for crimes against other Africans.

In my view, the AU is engaged in something more sinister, which is to protect Africa’s “Big Men” from prosecution for grave crimes against Africans.

This sinister motive was laid bare by the decision to protect “sitting presidents against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.”

The consequences of this decision are far-reaching. First, we have no uniform method of determining who is entitled to act in the capacity of a head of state. Second, African states do not have a uniform limitation on how long a head of state or a person acting that capacity may remain in office.

Thus, for as long as a person is either a head of state or entitled to act in that capacity, they remain immune from prosecution. Currently, more than 3 African leaders have been in office for more than 30 years. [Robert Mugabe of Zimbabwe (33 years); Teodoro Obiang Nguema of Equatorial Guinea (32 years); Jose Eduardo dos Santos of Angola (32 years), and Paul Biya of Cameroon (29 years)]

The AU has also not put in place methods to preserve evidence during the term of impunity. It is foreseeable that in the 30 years or so that the ICC may have to hold off from prosecuting an alleged international criminal, all evidence may be destroyed (naturally or otherwise).

Africans everywhere must reject attempts by Heads of States to protect themselves from investigation and prosecution! Africans must resist the abuse of the AU forum by animus “leaders” fearing that they may face prosecution in future.

If African leaders are disgruntled about the strategy of the ICC, they must establish a credible, well-resourced African criminal court. Until then, they must appear before the ICC and face the music.

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