Africa and the International Criminal Court

On 12 October the African Union said that the International Criminal Court (ICC), which has 122 members, including 34 from Africa, should not prosecute a sitting head of state. This comes on the heels, most directly, of attempts by the ICC to prosecute Kenyan President Uhuru Kenyatta and Deputy President William Ruto for crimes committed during election violence in 2007. But the tension goes back several years more, with a dispute over the attempt to prosecute Sudanese President Omar Hassan al Bashir over the conflict in Darfur, as well as attempts, mostly by European states, to exercise universal jurisdiction and prosecute Africans, and in particular members of the Rwandan government, over violence after the end of the 2004 Rwandan genocide. The AU has repeatedly requested that the proceedings against Bashir and Kenyatta/Ruto be suspended, which only the UN Security Council can do. The AU has argued that the prosecution of Bashir makes it harder for peace to be negotiated in Darfur, although there is little evidence of this. More broader, there are accusations of bias since all prosecutions up until this point have been against Africans. Those making these accusations neglect to mention that some of these cases have come about as a result of African states themselves referring their countries to the ICC for investigation.

What these countries are looking for is, as Desmond Tutu has said, ‘a license to kill.‘ The Rome Statute of the ICC says clearly that one cannot claim immunity from prosecution based on their status as head of state or other official. The 34 African members of the ICC knew this when they ratified the Rome Statute, but now some are having second thoughts once the reality of such prosecutions has hit home. It must be pointed out that African states are not unanimous on this. And with the election of a new African Prosecutor, Fatou Bensouda, arguments of bias or anti-African conspiracies are even less warranted. As I argued in an article in May 2012 in Human Rights Quarterly entitled “‘Bashir is Dividing Us’: Africa and the International Criminal Court” Africa is dealing with four paradoxes or conflicts which are inherent in evolving discussions about human rights, sovereignty and the role of Africa in the world:

  1. Human rights vs. sovereignty – The international community as a whole has recognized that governments and leaders cannot claim the right to do whatever they want against their people, and the African Union has made a similar recognition in article 4h of its Constitutive Act, which said that the AU could intervene in African countries where the government was engaging in widespread human violations against its people. However, such fundamental shifts do not happen overnight, particularly in an organisation like the AU which still has many leaders which are less than democratic. And it is understandable that even Kenya, which is more democratic, would resist when its leaders are under threat.
  2. Human rights vs. Pan-Africanism – While there is significant support for human rights within Africa, the question of African identity is still very important, and there are situations where support for one’s fellow African leaders may trump support for human rights, in particular when neo-colonial arguments are used to argue against outside interference. This connects to the ‘African solutions for African problems’ which, while a positive statement of intent to deal with significant issues within African, can also be deployed to undermine potentially positive support from outside.
  3. Global vs. regional geopolitics – Africa is struggling to assert its place in the world, and in particular within the UN at the Security Council. It argues that the current make-up of the Security Council, and the global peace and security architecture more generally, is unfair and excludes African voices to a significant degree. This is undoubtedly true, and the AU has demanded, via the so-called Ezulwini Consensus of 2005, 2 permanent seats for Africa on the Security Council (which would likely be filled by South Africa and either Nigeria or Egypt), and an additional 5 non-permanent seats. The chances of this happening are slim, and in any event discussions over Security Council reform, which have been going on for many years, are agonisingly slow. Thus, Africa feels sidelined – even more so when its requests to defer the Bashir and Kenya prosecutions have been ignored. As a result, as I argued, ‘real concerns about the role and sequencing of human rights mechanisms in conflict management fall prey to ideology and geopolitics.’
  4. Peace vs. justice – While concerns that international prosecutions can undermine peace negotiations – as has been asserted in both Darfur and Uganda, for example – are real, they can also represent a false dichotomy. And it is not clear whether things would have been any different in Darfur if Bashir had had not had an arrest warrant issued against him by the ICC. In the case of Uganda, while the ICC warrants for Joseph Kony and his top lieutenants may have both driven the Lord’s Resistance Army to the bargaining table, and then away again, the dynamics are much more complex.

The vote on Saturday by the AU does not provide encouragement for those who want to end impunity for mass atrocities – in Africa or elsewhere. But it must be seen in a broader context and with a significant amount of nuance. Africa as a continent has not suddenly turned away from the ICC and human rights. But, this is evident a continuing argument over human rights and justice, which is ongoing not only in Africa but also in the broader international sphere where norms against impunity are still being developed, debated and discussed.

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