Editorial: SA must stand up to ICC's detractors

President Uhuru Kenyatta is being tried for orchestrating    ethnic violence that killed more than 1 000 people after the controversial ­election in Kenya in 2007. (AFP)

President Uhuru Kenyatta is being tried for orchestrating ethnic violence that killed more than 1 000 people after the controversial ­election in Kenya in 2007. (AFP)

This weekend the African Union (AU) holds an extraordinary summit to deal with its relationship with the International Criminal Court (ICC), which is in the process of trying Kenya's deputy president and is soon to try its president for the mass violence that erupted at the time of Kenya's 2007 elections. On the surface, the Kenyan leaders are submitting to the ICC process, but Kenya's Parliament has voted to withdraw the country from the Rome Statute, the ICC's founding agreement. 

Kenya denies it has been lobbying for other African countries to pull out of the statute, but its huffing and puffing about the ICC has put sufficient pressure on the AU to have called this special summit. 

So what does the AU have to decide, then, when it meets?

Surely a mass pull-out from the Rome Statute is out of the question. It would send a very negative message about African governments' commitments to human rights.
It would look as though the AU was slipping back to the bad old days of its parent body, the Organisation of African Unity, when it was known as a cosy "dictators' club". That cannot be allowed to happen.

At the same time, there needs to be action from the ICC itself to counter the kinds of claims some African leaders are making. Ethiopia's Hailemariam Desalegn, for instance, accused the ICC of going on an "African safari", hunting Africans in particular; to such critics, it does look as though the court is unfairly targeting the continent. Certainly, almost all the cases before it now are African, and cries such as Desalegn's resonate with Africans who see the ICC as a Western institution sticking its nose into African affairs and wagging a moralistic finger at Africans while ignoring the sins of Westerners such as the warmonger George W Bush.

Last week in Cape Town, the former United Nations secretary general Kofi Annan reminded us that, of the six African cases the ICC is prosecuting, five were referred to it by the nations involved, so they obviously support the ICC process and find it valuable in dealing with human-rights abuses in their countries. The exception, however, is the troublesome one: Kenya.

Can the ICC and the AU, as they reconsider their relationship and/or the way they interact, find a practical solution to this problem? The plea that the Kenya trials be postponed fell on deaf ears at the ICC, which looked like a distinct lack of sympathy for a country dealing with the aftermath of a vicious terrorist attack. Perhaps that is one area where the ICC could show some flexibility; it would help to ameliorate the perception of bias against Africa, and could be a first step towards restoring good relations with African leaders. 

The ICC's African opponents need to be reminded that the Rome Statute is there to end impunity when it comes to the kinds of horrors perpetrated by, say, the Liberian warlord Charles Taylor, or the Lord's Resistance Army – to mention two African cases the ICC has handled. Seeing what had happened in places such as Rwanda and Sudan, African leaders rightly agreed to do whatever they could to stop such atrocities from recurring in future. 

South Africa was a key driver of the Rome Statute, and the victory of human rights in South Africa's own struggle made it a powerful advocate for a court "of last resort" such as the ICC. Now, at the AU summit – and even as it helps to find practical solutions to the Kenya problem – South Africa should be pushing hard against those who want to exit the Rome Statute. 

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