Is the ICC Ready for the Murky World of African Politics?

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June 17, 2013 By Jimmy Kainja

Few days before African Union’s 50th Anniversary celebrations in Addis Ababa, Ethiopia where the organisation was founded, initially as Organisation of African Unity on 25th May 1963, Nafie Ali Nafie, Sudan’s Presidential assistance was quoted by Sudan Tribune that he had told the country’s official news agency that African Union (AU) was going to endorse “an en masse withdrawal” of its membership from the International Criminal Court (ICC), allegedly due to the court’s unfair targeting of Africans.

And yes, it was easy to see why al Bashir’s assistant was eager to advance such claim, true or false. It is the interest of Sudanese leadership, whose president Omar al Bashir is an ICC indict that the ICC is discredited, at least by the continent’s leadership. Like most folks in my circle of friends, I thought the membership withdrawal was highly unlikely, given the lack of cohesion within the AU and among its member states. Take for instance, last year the AU was forced to shift its meeting from Lilongwe, Malawi to Addis Ababa after Malawi’s Joyce Banda (barely three months in office at the time) refused to host the conference if al Bashir, arguing that as ICC signatory Malawi had mandate to arrest al Bashir.

Sudan has all the reasons to try their luck knowing it now has allies in Uhuru Kenyatta, the Kenyan president, who together with his deputy, William Ruto are also fighting to clear names at the court. No single AU member pulled out but the organisation issued a strong statement, accusing the court of “racial hunting”. The ICC are mostly likely getting used to responding to these criticisms, the court has faced it so many times before from various people, institutions etc. The significance of this occasion is that it was the first time the accusation came directly from the African Union.

Writing for Al-Jazeera, Solomom Ayele Dersso, a legal academic based in Addis Ababa notices that the ICC’s current list of cases puts into question the claimed international status of the court, giving credence to descriptions that the court is, in practice, an “international court for Africa.” Dersso observed that Professor Mahmood Mamdani has previously made the similar point that “the ICC is turning into a western court to try African crimes against humanity.”

Such critics do not deny the fact that atrocities have been committed in various parts of the continent and that those being tried at the ICC have cases to answer. These critics question why is that the court is not pursuing perpetrators of similar atrocities elsewhere. Dersso notes that among these critics is Professor William Schabas who wonders: “why prosecute post-election violence in Kenya or recruitment of child soldiers in the Democratic Republic of Congo, but not murder and torture of the prisoners in Iraq or illegal settlements in the West Bank?”

These are legitimate questions, and the ICC recognise that these concerns are legitimate and ought to be addressed if the court is to save its own face. The court has emphasised that most of the cases has actually been referred by Africans themselves. ICC has a point, according to Dersso, of the 18 cases currently at the court, Africa have indeed initiated 12 of them. The other six were United Nations Security Council referrals.

The puzzle is why is the African Union accusing the ICC of “racial hunting” when most of the cases are initiated by its own members? Does this constitute to double standards or its is a manifestation of confusion with the AU? Are these facts suggesting that ICC is flooded with African suspects only because Africans are too enthusiastic about the court unlike elsewhere? Or is it because unlike other parts of the world Africa lacks justice systems that Africans themselves can trust? South Africa’s Daily Maverick argues that AU’s concern is not about the alleged “racial hunting” or trying to protect Kenyatta et al; African leaders are simply trying to protect themselves – most of fear they will end at the court.

It is a valid point, Ugandan opposition have since decided to take advantage of the ICC’s thirst for African cases; they are asking the court to charge the country’s president, Yoweri Museveni (one of the AU’s powerful men) after the country’s security personnel teargased demonstrators protesting against economic hardships in the country. Teargas is perhaps the most abused substance by the continent’s security enforcers.

How many of these cases is the ICC prepared to deal with? Is it really what the court wants to be doing? And of course Uganda’s opposition will only need the court so long as they remain in opposition. Once in power they will join the AU bandwagon. Is this what the ICC wants to get itself into? The court’s seemingly unquenchable thirst for African cases is slowly but surely getting it into the murky world of African politics, and it this will do nothing to mend its tattered reputation.

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