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.