The ICC Dilemma: To cooperate or not?
Mehari Taddele Maru
The 25th AU Summit in South Africa began with fanfare and ended with news worthy legal debacle of high political nature. The controversy started when a court in Pretoria, unlike in many African states where President Omar al Bashir visited, issued a provisional order preventing al Bashir from leaving South Africa until it decides on ICC’s request for an arrest of the president. Now, Bashir is in his Khartoum Palace; ANC is as usual in political and legal controversy; the Darfuri victims are still left without redress, and ICC is crying of fault by its state parties. But, why?
As discussed in my recent Op-Ed piece on Al Jazeera, the debacle started with South Africa’s failure to do its homework in clarifying ahead the legal issues arising from the presence of President of Sudan Mr Omar al Bashir and its competing obligations to ICC and the AU. But it is also a surprise that al Bashir traveled to South Africa – thinking he would be left alone to attend the Summit like other leaders. President al Bashir, on his side, forgot that South Africa, unlike Sudan, is a constitutional democracy with an independent judiciary that possesses a daring nature – the prime virtue of a judicial system that serves as a shock absorber. Independent court is supposed to act like a shock absorber of a vehicle when a nation’s rough going gets though. Through judicial intervention it stabilizes the country.
The court order landed the South African government and its ruling party ANC in a legal hot water and political dilemma: to cooperate with ICC by respecting its court’s decision, or to respect its obligations to the AU by disregarding its judiciary and ICC. The first would have put South Africa in a diplomatic row with far reaching consequences on its standing with the AU. The second would put South Africa and ANC under serious political controversy and legal challenge. Two choices with two equally unpalatable alternatives, South Africa was in a diplomatically awkward, politically difficult and judicially critical situation. Straddling on a delicate balance of being an ICC state party and AU leading member state, the decision on the matter cannot be simply a legal only, it need to take into account the domestic politics in the country, the legal obligations of South Africa to its judiciary, the AU and the ICC, and its diplomatic place in the Pan African community. With a double bind that has conflicting obligations, regardless of the choice South Africa takes, it was automatically wrong. The choice was between two wrongs. South Africa decided the second as less problematic. The political debacle is not yet over for ANC and South Africa, the judicial questions still looming large.
Deliberate distortion of facts and concepts
On 15 November 2013, immediately after the United Nations Security Council (UNSC) voted against the AU request for deferral of the trials of Kenya’s President Uhuru Kenyatta and Vice President William Ruto for a year, the United Kingdom (UK) Permanent Representative to the UN announced that “there is a right place and wrong place” to present the AU’s requests for deferral of cases. He was referring to the Assembly of States Parties (ASP). Similarly both the President of the ICC and the chair of the ASP have been active in arguing that African countries had referred five cases to the ICC, and that the ICC had not specifically targeted African countries. These two and other similar arguments often made by westerners are generally evasive arguments at best; arguments that are not only simplistic, but also symptomatic of the challenges the ICC is facing in solving its contentious relations with Africa. That is the reason that a year or so ago, in an extraordinary AU Summit deliberating the ICC as the only sole agenda, African countries sealed an agreement to fight ICC globally through diplomatic channels by appealing to UN Security Council, continentally by expanding the mandates of an African court and thereof limiting ICC’s mandate to take cases on sitting heads of state and senior officials of government, as well as domestically by withdrawing from the Rome Statute that establishes the ICC.
AU’s dispute with regard to the ICC is bigger than whether African countries have referred five cases to the ICC, but rather why the ICC is only prosecuting Africans. Are Africans the only one committing crimes proscribed by the Rome Statute? Did the UNSC referral and deferral powers politicize the ICC’s judicial role and led to the application of a double standard? Does the undemocratic nature of the UNSC and longstanding demands for its reform affect the stand of the ICC in the eyes of the weakest countries? Did the activist prosecutorial policy and selective prosecution policy pursued by the former chief prosecutor, Mr Luise Ocampo, place the ICC in a position conducive to political wrangling and selective justice? Is the UNSC’s failure to formally respond to AU’s requests to defer trials for a year appropriate? Did the ICC fail to dispel the widespread misunderstanding about the work of the ICC and the political misuse of the referral of cases by African states? Are there some discrepancies in the interpretation of the Rome Statute that cause legitimate legal concerns and debate, particularly in regard to the rejection of impunity and applications of immunity with regard to officials of non-states parties? Should the UNSC enjoy the referral and deferral powers it has now?
As I have argued in my piece “The Future of the ICC and Africa: the good, the bad, and the ugly”, I have no qualms in my mind that the ‘ugly’ are states and officials that violate the human rights of the very fellow citizens that are supposed to be protected. Unfortunately the ‘bad’ prosecutorial policy of Mr Luise Ocampo still looms large, negatively impacting the court’s ‘good’ work for Africa. As far as there are massive atrocities, Africa needs the help of such an institution.
Regardless of the legal merits of the cases, the ICC is highly controversial now as a result of Mr Ocampo’s activist tendencies. The other far-reaching negative implication of the recent debacle in South Africa is the continued politicization of the ICC’s judicial role due to the former Prosecutor’s activist prosecutorial policy. The last Kenyan presidential election was effectively a choice between Mr Kenyatta and Mr Ocampo. The jurors were the Kenyans, not the ICC judges. That is the reason why the election victory of Mr Kenyatta and Mr Ruto was construed as the people’s indictment of the ICC and its activist’s prosecutor, Ocampo. The recent failure of South Africa to arrest and hand over Mr al Bashir is another additional case.
The far reaching consequential impact for the ICC’s future in Africa will be that countries like Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea-Bissau, Mozambique, Sao Tome and Principe, the Republic of Sudan, and Zimbabwe, that have signed, but not ratified, the Rome Statute may also decide to not ratify the Statute or even to “un-sign” the Rome Statute as in the case of the USA and some other states. Moreover, countries like Equatorial Guinea, Ethiopia, Libya, Mauritania, Rwanda, Somalia South Sudan and Togo will consolidate their determination not to sign the ICC statute altogether. While only Kenya has decided to withdraw from the ICC, Uganda and Djibouti have verbally threatened taking a similar decision. Nigeria, Algeria, South Africa, and Egypt will probably fully support the AU’s stand on particular cases, while they remain committed to the middle ground. Paradoxically, it is Kenya and Uganda which were the most aggressive proponents of the ICC during the negotiation for the Rome Statutes and were the first to ratify. Actually, Kenyan and Ugandan diplomats were very vocal in supporting the ICC before the indictment. Kenya was active in using the support of IGAD members.
Interpretation Discrepancies: Immunities of officials of non-states parties
While Article 27 removes the immunities of officials of states parties, Article 98 allows states parties to respect the laws governing immunities. Thus they are not obliged to arrest or surrender an official of a non-state party who enjoys immunity from prosecution. Article 98 applies only to non-states parties; under Article 98, immunity of officials of non-states parties to ICC. Nevertheless, under Article 27 of the same Statute, immunity is suspended when it comes to the court’s exercise of its jurisdiction on officials of States Parties and even on non-states parties as per Article 25 of the UN Charter where decisions by the UNSC are binding on all states. However, when the UNSC refers the case of a non-state party, the non-state party legally expected to discharge all responsibilities as a state party for the specific case. Whatever the judicial interpretation, the ICC Trial Chamber failed to consider the relationship between Article 27 and Article 98 of the Rome Statute.
The ICC-Effect: the fears of African leaders
It is almost clear that indictment by the ICC is almost a conviction for life until cleared by the court. Unless it is an issue of a degree, a person indicted by ICC must have committed one of the crimes. The ICC had an effect of instilling fear on incumbent officials and political leaders and those indicted. However, eight years after the issue of arrest warrants against the president of Sudan and his cohorts, they remain firmly entrenched in power, and the new indictees, the President and Vice President of Kenya, are fighting back against the ICC Prosecutor, threatening the very foundations of the ICC. The indictments also raised patriotic sentiments that were misused in election campaigns in Kenya and Sudan. However, one cannot say with full confidence that the indictments by the ICC have been effective in deterrence, serving justice, bringing peace and addressing or reducing victimization. Rather the deterrent effect of the ICC and its indictments in Africa could be effective, not against those already indicted but against those who might have the power to commit crimes as newly elected or appointed leaders. Where, with the ICC in mind, they would otherwise be careful about the consequences of their actions.
The future of ICC in Africa
Despite the current widely held public misgivings of Africans about the role of the ICC, I believe future generations of Africans and their leaders will increasingly support the ICC as a complementary institution of global justice rather than as the indicter of African leaders with different views from western powers.
There is no legal solution to conflicts in Africa, but certainly there can be no solution without justice. At the heart of this debate is the nature of African states, African political forces and interventions by the international community. With states that are strong in terms of the wrong functions such as repression, intimidation, and deception, and at the same time weak in regard to the right functions, mainly in ensuring human security of their population, the contention between ICC and Africa will remain until such time as responsive governance systems are established in Africa. Similarly, the mobilization of political parties and rebel groups on undemocratic and sectarian platforms, such as ethnicity and religion, will lead to violence and brutal political changes in Africa. Similarly, due to the undemocratic nature of the UNSC, the double standards practiced in international relations as well as national and corporate interests, international interventions will continue to misuse and abuse the UN and other regional systems for their own advantage. To keep the ICC at bay and address the fear of misuse of the ICC by dominant powers, African states must first totally reject impunity and establish national and regional mechanisms that will ensure accountability even at the highest levels of office.
Thus, the solution to the current challenges affecting relations between ICC and AU may require a generational shift of attitude on the part of African leaders and more understanding, credibility and scrupulousness on the part of the ICC. Such a change of attitude will not come unless the ICC and its statute are amended to address some fundamental questions including the referral and deferral powers of the UNSC; the issue of double standards in the application of justice with a focus only on Africans; the peace-justice dilemma during ongoing conflicts and the place of transitional justice mechanisms; and the application of the principle of complementarity when a country or a regional mechanism attempts to address impunity.
Ed’s Note: Former Legal Expert at the AU and a specialist in human rights and humanitarian law, Dr. Mehari Taddele Maru is an international consultant on African Union affairs, and an expert in Public Policy and Administration, Management and Peace and Security as well as Migration. He serves as freelance strategist on peace and security, political and migration issues. Adjunct Assistant Professor at Centre for Federal Studies of Addis Abeba University, he lectures at NATO Defense College (Italy), UN Institute for Economic Development and Planning (Senegal), and African Center for Strategic Studies (USA).
