African Leaders' Blackmail of the International Criminal Court

NigeriaWorld.com

In the last decade, warlordism has been on the decline in Africa. But terrorism and other forms of political combustion appear to be on the rise. Recent and ongoing disturbances in northern Nigeria, Kenya, Somalia, Mali, Ivory Coast, the Great Lakes, Egypt, Libya, Tunisia, Democratic Republic of Congo, and Central African Republic are flashpoints of both Africa's political vulnerability and the continent's political renewal. As Africa engages its current positive, albeit, controversial economic transition, the tail of its political contradictions within a hypocritical world order continues to wag the continent. So far, the International Criminal Court (ICC) appears to be the most influential site with significant clout to check political impunity and irresponsible abuse of rights on the continent by its leadership and other fringe elements. This month, Africa's dilemma and the credibility of its leadership to tackle current regional and global political realities were subject of interests on the global media and across diplomatic circles world-wide. 

On October 10, 2013, African leaders gathered in Addis Ababa, Ethiopia, under the auspices of the African Union (AU) to re-open the continent's lingering double speak on the ICC. Many analysts and supporters of the ICC held their breaths as they waited the outcome of the meeting which was summoned in response to calls by a few African leaders for a regional pull out from the Rome Statute that established the ICC in 1998. Many feared that the continent was about to wholly jettison the ICC. Not that any such resolution would have easily been endorsed by all of the 34 of the 54 AU member states that are parties to the ICC. But such a prospect would have had a chilling impact on the status of the controversial Court and its jurisdictional reach on the continent. Instead, coming out of the meeting, African political leaders settled for a middle ground by demanding that no sitting head of state should be subjected to prosecution at the ICC. The impact of that demand is not lost on the international community, especially in regard to the influence of Kenya on the continent. That country's recently elected president and his deputy, Uhuru Kenyatta and William Ruto, are presently charged at the ICC as a result of their involvement in the ill-fated penultimate (2007) general elections in Kenya. In effect, the AU does not deny that Uhuru Kenyatta and, indeed, Sudan's Omar al-Bashir - another African head of state indicted at the ICC - do not have a case to answer. Rather, the AU demands the postponing of their trials until after they leave office. 

The volte face in Addis Ababa is owed largely to strong opposition to African leaders' inclination to escape accountability championed by many credible civil society organizations and a number of reputable African leaders, notably Mr. Kofi Annan and Archbishop Desmond Tutu. These organizations and leaders insist that the ICC has important role to play not only on the side of helpless victims of African dictatorships and widespread abuse of power but also in strengthening the continent's fledgling democracies by standing as a symbol of accountability for those who play outside the rules. One is not sure there is any responsible African leader who would wish a repeat of what happened in Rwanda, Liberia and Ivory Coast and elsewhere without there being strong consequences. Any decision by African leaders that could directly or indirectly aid a repeat of the horrific experiences of genocide and wordlism on the continent would put them at odds with the entire people of the continent and its most vulnerable. 

The circumstances under which Kenya's Kenyatta and Sudan's al-Bahsir, two African serving heads of states, are currently indicted before the ICC are not the same, and should not be conflated. Omar al-Bashir's presidency is a creature of naked dictatorship, lacking any scintilla of democratic credential. al-Bashir did not only violently crush his countrymen and women in the Darfur region for daring to express their human rights; he also brutally prosecuted the long-drawn fratricidal war fare against the peoples of South Sudan. Through these and several other inglorious trademark of his long-running dictatorship, he has been dragged to the ICC and is required to defend himself against allegations of genocide, crimes against humanity and war crimes, which are squarely within the jurisdiction of the ICC; especially since it is not possible to prosecute him for these charges under the Sudanese legal system, while he remains on the saddle. It is arguable that the fear of the ICC was instrumental to al-Bashir's reluctant willingness to follow through with South Sudan's independence over which he stalled repeatedly. On the other hand, Uhuru Kenyatta and his deputy got into trouble in the process of being actors in a democratic process that went awry, whereof the duo and their supporters were alleged to be complicit in indictable offences at the ICC. In a dramatic twist, and as an apparent act of defiance, Kenyans elected these two leaders to power; thus casting a shroud over, if not calling the bluff of their continued appearance at the ICC. Sudan and Kenya represent two different dynamic in Africa's experience with the ICC. Kenyatta and al-Bashir are not on the same league; all details factored in. 

If not for the double speak of African leaders on the ICC, the recent call they made regarding the docking of serving African heads of state would merit pensive introspection, at least from a practical point of view. On the double speak, African leaders have conveniently, in the words of Bishop Desmond Tutu, "played both the race and colonial cards" to undermine the ICC. But these are hollow charges when confronted with the important statistics regarding African representation in the Court as judges, prosecutors, other personnel, petitioners, and constitutive member states of the Rome Statute. Without getting into their details, in all these and other counts, it is hard to sustain the argument that the ICC is a racist or colonial establishment designed to humiliate Africans. Just as an illustration, only 20 out of 54 African states are not parties to the Rome Statute. Put differently, 63% of African countries are parties to the Rome Statute. 

But the ICC is not an African Court. It is a global institution. The 122 member states of Rome Statute include all the countries of South America, almost the entire Europe and majority of the countries of Oceania. More than 31 other countries, including Russia, have signed but not ratified the treaty. While a case can be made that so far only African leaders have been charged at the ICC and its sole conviction yet is an African. In a way, that may be an affirmation of Africa's evident leadership failure and political fragility. But one should not lose sight of ongoing ICC investigations directed at other regions that have yet to result in indictments. As well, several independent tribunals are charged with handling specific cases (Yugoslavia, Cambodia, etc.) and some of those have concluded their hearings - a situation that reduces prosecution traffic in the ICC from other regions. Even if these are not good reasons, it is hard to provide regional equivalents of recent political turbulence in Africa as reflected in the countries listed above. In addition, half of the preceding investigations and resulting prosecution of Africans at the ICC arose from petitions by African member states of the Rome Statute. Perhaps more importantly, the question that needs asking is: If the ICC is a racist institution targeted against Africans, how is that 30 African states, including those whose leaders are now kicking against the ICC, were part of founding member states of the Rome Statute that breathe life to the ICC? 

Beyond the self-serving posturing of a few African leaders against the ICC, African countries may, however, have a case in regard to the ICC even though any such reservation does not justify the idea of pulling out of the Rome Statute. So far, that reservation has been poorly expressed in a manner that undermines its credibility and the credibility of its purveyors. Similar tribunals to the ICC have not been without criticism. For example, the Nazis, their sympathizers and other anti-Semites did not see anything good about the post-World War II Nuremberg tribunals which they easily dismissed as inquisition of the vanquished by the winners. But that did not mean that the world was not better off by a system that held people accountable for genocide, crimes against humanity, war crimes and other behaviours that impugn or mock our common humanity. 

In truth, the major problem with the ICC and its modus operandi is rooted in the perennial fault line of international law, namely the tension between state sovereignty and international accountability. The push back by Libya, for example, against the trial of Saif al-Islam Gaddafi, the son of its former strongman, in The Hague is one example. The same is true more so for Kenya where a now-sitting and democratically elected head of state is required to appear before an international Court in a foreign land. It is not whether the judicial systems in both or any such countries is capable of holding people who commit crimes against humanity accountable, perhaps it is the appearance of affront on state sovereignty, collective national pride and patriotism that is loathed by those who oppose the ICC in some national contexts. 

The sovereignty argument can be countered by the fact that the ICC derives its legitimacy from the collective will of the international community as represented by member states of the Rome Statue. That is as far as the argument goes. Key players in the international process such as the United States, China, Russia, even Israel and India are not on board the ICC. China, United States and Russia constitute 60% of the United Nations Security Council where they self-servingly wield veto powers often against the collective will of the international community. The UK and France are the only permanent members of the Security Council that are parties to the Rome Statute. The United Nations Security Council is gradually developing a cosy relationship with ICC. That is a cause for concern. While China, United States and Russia are desirous of holding leaders and dissidents from member states of the ICC who commit crimes under the jurisdiction of the ICC accountable through the latter's framework, those countries are not willing to have their leaders and citizens held accountable under that same framework to which they subject others. The subtext is that leaders and citizens of those countries are immune from the crimes over which the ICC has jurisdiction at the behest of the international community. In the case of the United States, that country was proactive in lobbying other countries not to ratify the Rome Statute! 

Despite its noble intentions, the ICC reflects the structural fault line of the international order, especially in regard to the tension between state sovereignty and international accountability. Yet, save for the cosy relationship it is developing with the UN Security Council, the ICC is one international institution that does not have the bullying presence of key actors on the international stage. That is as problematic as it is opportunistic. At least member states of the Rome Statute can resolve and seem to have actually resolved to make the ICC work without the overbearing presence of the United States. As a continent, Africa is better off with an efficient and effective ICC and it should not be seen to derail that resolve. Holding leaders and brutish political actors accountable through the ICC is important to secure the interest of the vulnerable in Africa and to grow and nurture African fledgling democracies in order to maintain the continent's economic growth momentum and sustain enduring progress. Well-meaning African leaders should be at the forefront of championing the ICC in critical and constructive manners than is presently the case. One way to demonstrate African part ownership and stakes in the ICC process is to have Africans indicted by the ICC stand trial in relatively stable Africa countries such as South Africa, Botswana, Ghana, etc., with appropriate security and logistic arrangements. Such a prospect provides a counter optics to the ICC that sits at The Hague which African leaders are now exploiting to create the imagery of an African mindset in which the ICC is portrayed as a symbol of colonial or racist conspiracy to humiliate Africans. The Rome Statute itself accommodates such a procedural flexibility under Article 3 which provides that ICC proceedings can take place anywhere. 

Instead of resorting to a cheap blackmail against the ICC, African leaders should be concerned as to why their ranks are frequent candidates for prosecution at the ICC. If they are sincere, they can easily diagnose abysmally poor quality of leadership as being at the root of African problems, requiring them to earnestly work with the ICC and similar bodies to stem the tide of irresponsible leadership and political impunity on the continent. It is noteworthy that at the time when African leaders were throwing tantrums at the ICC, the Mo Ibrahim Foundation announced for the fourth time in five years that it did not find a worthy candidate to receive its $5m endowed African Prize for Excellence in Leadership. The latter is dedicated to honour "former [African] heads of state or governments, who during their mandate have demonstrated excellence in leading their country and, by doing so, serve as a role model for future generation". One just hopes that the Foundation and the rest of Africa took notice of those who gathered in Addis on October 10, 2013 with a thankfully failed agenda to withdraw the continent from the Rome Statute. They are far from being inspirational role models, far from excellent and out of sync with Africa's desire for accountable leadership.

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