THE frosty relations between the International Criminal Court (ICC), which came into force on July 1 2002, and African leaders show signs of further deterioration with African leaders accusing The Hague of employing double standards against Africans.
The conflict was sparked in July 2008 when the then prosecutor Moreno Ocampo applied for a warrant of arrest for Omar Al-Bashir, the sitting President of the Republic of Sudan.
Al-Bashir was charged with war crimes, crimes against humanity and genocide in the Darfur region of South Sudan.
Since establishment, the office of the prosecutor (OTP) of the ICC has investigated eight cases involving alleged violations of international criminal law. Each of these investigations is related to situations in African countries, namely the Democratic Republic of the Congo (DRC), Uganda, the Central African Republic (CAR), Darfur/Sudan, Kenya, Libya, Ivory Coast and Mali.
The stand-off worsened with the recent indictment of Kenyan President Uhuru Kenyatta and his deputy William Ruto by the ICC for crimes against humanity in the violent 2007 elections which left more than 1 000 dead.
The African Union (AU) charges that the ICC seems to be only targeting African leaders while ignoring transgressions of other countries, especially the West.
Armed with that argument the AU extraordinary summit in Addis Ababa, Ethiopia, last Saturday stopped short of withdrawing from the ICC, demanding the immediate deferral of the cases against Kenyatta and Ruto.
The weekend summit also ignited debate on the role of the ICC in as far as its global approach on dealing with issues of gross human rights abuses is concerned.
While the OTP has received information on alleged abuses in other parts of the world such as Iraq, Venezuela, Palestine, Colombia and Afghanistan, it has decided not to open investigations or kept them under preliminary examination in order to determine whether or not to proceed.
All situations and cases under current investigation or prosecution by the ICC are in Africa. Critics claim that the OTP’s focus on Africa has been inappropriate and biased because it has been targeting African leaders, resulting in the international court being viewed as a reflection of the global balance of power.
The US is not a signatory to the Rome Statute, but has the power to dictate where the ICC casts its eyes through its permanent seat on the UN Security Council.
Aside from Africa, the other indictees include Slobodan Milosevic and Ratko Mladic, from the former Yugoslavia.
University of Zimbabwe lecturer CharityManyeruke said African leaders are to blame for believing that justice can only come from The Hague.
“At last African leaders are realising that their belief that justice only comes from the West-oriented Hague was an error of judgment,” Manyeruke said.
“Africa must have confidence in itself and build institutions which deal with African problems with regards to human rights. What Africa has done is to fire warning shots at the ICC that time has come for Africans to speak for themselves,” she said.
President Robert Mugabe last Saturday advised Kenyatta not to go to The Hague to answer to charges of crimes against humanity which he faces together with his deputy.
Presidential spokesperson George Charamba said Mugabe did not mince his words over the ICC’s alleged intransigence, saying it was heavily biased against African leaders and Kenyatta could not reduce himself by appearing before it when no Western leader had been subjected to such treatment.
Several nations in the 54-member AU have demanded that the court drop its cases against Kenya’s leadership. African states have also repeatedly ignored ICC orders to hand over indicted Sudanese leader al-Bashir.
In 2012, the venue of the AU summit was changed from Malawi to Addis Ababa, after Malawian President Joyce Banda said she had asked the AU to prevent Al-Bashir from attending the summit in her country, saying his visit would have “implications” for the economy since he was wanted by the ICC.
However, some analysts claim the view being pushed by the AU is only meant to serve the interests of “African leaders’ culture of impunity”.
Dewa Mavhinga, a senior researcher in the Africa division of Human Rights Watch, said the impunity enjoyed by African leaders means they would be very happy to push for the withdrawal from the international court.
“The ICC is certainly not beyond criticism, and should seek a more balanced approach to ensuring global justice,” Mavhinga said.
“However, the AU leaders, by seeking to pull out of the ICC, are exposing their hypocrisy and undermining their own charter which enshrines promotion and protection of the rule of law, good governance, justice and human rights respect,” he said. “It appears the AU leaders have a sinister motive to prioritise insulating their predominantly ‘old boys’ club’ from justice and accountability while ignoring Africa’s pressing needs including ending multiple wars, ensuring development and respect for basic rights.”
Mavhinga also said those countries with something to hide, that are concerned that they may be called to account for abuses in their own backyards are most vocal in trying to stop the activities of the ICC.
“This would put the rule of law in the African continent in jeopardy. It is time for Africa to strengthen the institutions that stand for good governance, the rule of law and democracy,” Mavhinga said.
Another analyst and lawyer, Gabriel Shumba, who is director of Zimbabwe Exiles Forum based in South Africa, bemoaned the move by African leaders to threaten the ICC.
Shumba, who alleged he was a victim of torture in Zimbabwe, managed to take his complaint before the African Commission on Human and Peoples’ Rights (ACHPR) which later found the Zimbabwe government responsible for his torture and ill-treatment.
The decision also alluded to the impunity with which torture is being committed in Zimbabwe which made it impossible for Shumba to seek justice before Zimbabwean courts.
“It (the possible decision to pull out of the ICC) is tragic because ordinary citizens will have no meaningful recourse and succour for serious crimes committed by their own governments,” said Shumba.
“African leaders would rather have a docile court that panders to their whims, while sanitising atrocities. It is an unforgivable shame and African civil society is called upon to unite and fight any attempt to destroy the court as happened to the Sadc Tribunal.”
The tribunal, which incensed Zimbabwe due to its judgment in favour of white commercial farmers, was dissolved in 2011 after leaders from the regional bloc tasked the justice ministers to reconstitute the body and give it a new mandate.
However, while there are allegations the ICC reflects the balance of global power politics, there are hopes the push by the AU to have a greater say in the investigations at The Hague will not disadvantage African victims of misgovernance.