africa versus icc nyu scps

Report
Africa’s Case Against the ICC
John Mukum Mbaku, J.D., Ph.D.
Brady Presidential Distinguished Professor of Economics
Weber State University & Nonresident Senior Fellow, The
Brookings Institution
The African Union & The ICC (1)
 In June 2009, Comoros, Djibouti, and Senegal called on
African States Parties to withdraw en mass from the
Statute in protest against allegations that the ICC was
targeting Africans. This declaration was specifically in
reference to Sudanese Pres. Omar al-Bashir’s indictment.
 May 2013: At the end of a three-day summit held in Addis
Ababa, the AU accused the ICC of being racist and stated
that the ICC was prosecuting only African cases.
 At this summit, AU announced its support of Kenya’s
application for legal proceedings against President
Kenyatta and Deputy Pres. Ruto to be returned to Africa.
The African Union & The ICC (2)
 October 12, 2013: The Assembly of the African Union
passed a resolution:
 To reiterate its commitment to fight impunity, but
 That sitting heads of state shall not appear before any
international court during their term of office.
 Indictment of sitting heads of state by the ICC, the AU argued,
would undermine the sovereignty, stability, and peace of
member states.
 The AU called on the UN Security Council to suspend
proceedings against Kenyan President Kenyatta and Deputy
President William Ruto on the basis of Art. 16 of the Rome
Statute.
The African Union & The ICC (3)
 The AU claims that ICC activities with respect to Africa
undermine African efforts to facilitate the early resolution
of conflicts in the continent, and point to the Darfur
Conflict and the indictment of Omar al-Bashir as examples.
 Uganda’s Deputy AG & Minister of State for Justice and
Constitutional Affairs spoke on behalf of the AU at the 12
Assembly of States of the Rome Statute of the ICC at The
Hague, Nov. 21, 2013 and declared as follows:
The African Union & The ICC (4)—Dr.
Ruhindi’s Speech
 The AU recognizes the need to combat impunity, promote
democracy, the rule of law and good governance
throughout the continent as enunciated in the AU’s
Constitutive Act.
 The AU believes that if Kenya does not qualify for use of
Art. 16 of the Rome Statute and subsequently the principle
of complementarity, then no other State Party will.
 The AU strongly believes that if Kenya does not qualify for
Art. 16, then the UN Security Council cannot legitimately
and constructively resort to it and the ICC would no longer
be a court for all but only one designed to deal with
Africans in the most rigid way.
The African Union & The ICC (5)—Dr.
Ruhindi
 The AU’s position is that the Kenyan situation
demands that the UN Security Council exercise its
mandate under Art. 16 of the Rome Statute, read it
together with Chapter VI of the UN Charter, and allow
Kenya to move forward and deal with the challenges
confronting it.
 Dr. Ruhindi affirmed the AU’s strong belief that
Africans should be allowed to solve their own
problems.
Kenya and Other African Countries &
the ICC
 The Parliament of Kenya, in response to the indictment of
Kenyatta and Ruto, has voted in favor of withdrawing from the
ICC.
 The Kenyan decision to withdraw from the ICC is supported by:
 Uganda—President Museveni accuses Western countries of using
the ICC to “install leaders of their choice in Africa and eliminate
those they don’t like.”
 Ethiopia, Rwanda & Tanzania
 South Africa’s ANC party has stated that the ICC’s indictment of
Kenyatta and Ruto is a “judicial coup” and that there is clear
evidence “that the ICC is used more to effect regime change in the
majority of cases.”
Other African countries supporting
Kenya’s decision to withdraw from
the ICC
 Ethiopia: Minister of Foreign Affairs, Dr. Tedros
Adhanom Ghebreyeusus, has urged Africans to speak
with one voice and send a strong message to the
international community on the issue of the
continent’s relation with the ICC.
Some African Countries do not
support Kenya’s approach to the ICC
 Nigeria: Minister of State for Foreign Affairs,
Nurudeen Muhammad, distanced himself from Kenya
and argued that Kenya had its own reasons for acting
against the ICC.
 Ghana: President Mahama said the ICC had done “a
fantastic job in bringing some people who have
committed genocide and mass murder to justice.”
 Others: Bostwana, Côte d’Ivoire, Mali, and The
Gambia.
January 29, 2014 Letter from the AU
to the ICC
 The letter mentions four flaws in ICC procedures, which
the AU believes could undermine the rights of defendants
and thereby offend the principles of international justice:
 (1) The ICC fails to adhere to stringent evidentiary standards and
investigative techniques critical to the collection of reliable
evidence—this flaw arises from the fact that the ICC outsources
critical functions of the Court’s Office of The Prosecutor
(“OTP”) to unregulated and often privately funded NGOs and
individuals who are not accountable to the Court or to the
judicial process and may have incentives beyond or inimical to
this process.
January 29, 2014 Letter from the AU
to the ICC (2)_
 (2) The impact of permissible funding from private
sources on the justice delivered by the Court—private
funding can significantly influence the Court’s
impartiality or give the appearance of doing so.
 (3) The Court’s grounding is in principles of
humanitarian and not criminal law—a prominent
feature of the ICC is that while it is grounded in
principals of humanitarian law, it purports to
investigate and judge essentially criminal cases.
January 29, 2014 Letter from the AU
to the ICC (3)
 (4) The ICC Office of The Prosecutor, using proprio
motu jurisdiction, can initiate a case without referral
from a member State or the UN Security Council.
Without a referral from a member State, the OTP runs
the serious risk of lack of cooperation, which
undermines the integrity of the investigation, and
without a referral from the UN Security Council, the
OTP discretion is unchecked and lacks the focus and
political support obtained by having the UNSC narrow
the issues.
What Africans and their supporters
are saying about the ICC (1)
 Does it mean that Africans are the only ones in the world
who commit the most insidious war crimes and crimes
against humanity?
 Some are quoting former UK foreign minister Robin Cook
who said of the ICC: “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.”
 Some Africans argue that the ICC is not unlike the colonial
order established in Berlin in 1884-1885—then, one of its
most important missions was to protect “vulnerable
groups,” one of which included citizens of the “Dark
Continent.” Supporters of the ICC make similar claims.
What Africans and their supporters
are saying about the ICC (2)
 The Rome Statute was driven, to a great extent, by
Western-based NGOs, with only marginal contributions
from official country representatives.
 Out of 189 member countries of the UN, only 60 were
needed to approve the Rome Statute, an extremely low
bar. This is extremely problematic, especially given the
fact that the ICC has worldwide jurisdiction, including over
countries that are not signatories to the ICC Statute.
 Important global players (e.g., United States, China, India,
Japan, and the Russian Federation) are notably absent
from the agreement establishing the ICC. What happens if
one of these countries commits war crimes in Africa?
What Africans and their supporters
are saying about the ICC (3)
 Ratification of the Rome Statute was undertaken primarily
with the help of States that are not considered major
players in the global system.
 Over 70% of the world’s population is outside the Court’s
jurisdiction—India (1.27 b); China (1.390 b); Indonesia (230
mil.); Russia (150 mil.); Japan (125 mil.); USA (312 mil.).
 The ICC’s members represent only 27% of the world’s
population; yet, the ICC purports to be a universal court
exercising universal jurisdiction.
What Africans and their supporters
are saying about the ICC (3)
 The ICC has ignored cases of superpower abuses of human
rights and abuses by client states.
 The ICC has only gone after those people seen as being
weak and unprotected by the UN Security Council—
consider human rights abuses in Iraq, Afghanistan, and
Syria.
 The ICC has concentrated its efforts exclusively in Africa, a
process that has made a mockery of the ICC’s claims to
bring about an end to impunity.
 The ICC exists to employ more Americans and Europeans
and increase its budget.
What Africans and their supporters
are saying about the ICC (4)
 “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” (Prof. Mahmood Mamdani).
 The EU provides about 60% of the ICC’s funds—Africans
believe that there is a close relationship between funding
and influence over the activities undertaken by the Court.
 Key staffing positions that are responsible for
investigations and the preparation of cases are held mostly
by EU citizens.
 The ICC has been drawn into domestic politics.
What some expects are saying about
the ICC (Dr. David Hoile)
 Dr. David Hoile, an expert on the ICC and African affairs:
 Says the ICC is nothing more than a European Court.
 He identifies several flaws in the ICC as an international legal
institution:
 The ICC Statute was rushed through in four weeks by Western
NGOs with very little time given to effective contemplation,
especially of the type needed to establish laws that would affect
so many people and the judicial systems of many countries.
 The UN Security Council is granted special prosecutorial rights
to refer or defer an ICC investigation or prosecution, effectively
inserting political interference into the Court’s terms of
reference.
What some expects are saying about
the ICC (Dr. David Hoile): ICC Flaws
 Five permanent members of the UN Security Council,
which has significant political control of the ICC, are
not even members of the ICC.
 The ICC is unaccountable to any public entity.
What ICC opponents are saying
about the ICC:
 USA:
 Washington objected to the Court because of a perceived
lack of adequate checks and balances on the powers of
the ICC prosecutors and judges, as well as the lack of due
process and the absence of juries.
 No effective external check on The Prosecutor—there is
insufficient protection against politicised prosecutions or
abuses. This is essentially what African countries are
complaining of.
India’s Objections to the ICC
 The Rome Statute makes the ICC subordinate to the
UN Security Council and in effect, the UNSC’s
permanent members who can interfere politically in
the ICC’s work—these countries can block ICC
proceedings or refuse to refer cases to the ICC.

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