Africa and the ICC: A vexed relationship

The ICC indicted the Sudanese leader in 2009 for war crimes and crimes against humanity and later genocide in Darfur. But despite that, Bashir has travelled to numerous African countries – including Chad, Kenya and Nigeria – where anger at the ICC’s perceived bias against Africa meant calls for his arrest were ignored.

“The process the ICC is conducting in Africa has a flaw,” Ethiopian Prime Minister Hailemariam Desalegn told the African Union (AU) in 2013. “The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting.”

And last December Ugandan President Yoweri Museveni called the ICC a “tool to target” Africa, but he failed in his effort to orchestrate a mass withdrawal by African states.

Rwanda’s President Paul Kagame has accused the ICC of “selective” justice.

“This world is divided into categories. There are people who have the power to use international justice or international law to judge others and it does not apply to them,” Kagame said in late 2013.

Established in 2002 as the world’s only permanent independent body to try war crimes, the Hague-based ICC has opened nine cases in eight countries, all in Africa.

Kenya’s then ICC-indicted presidential ticket running-mates, Uhuru Kenyatta and William Ruto, cast their election-winning 2013 campaign as a patriotic struggle against imperialism.

AU commission chair Nkosazana Dlamini-Zuma has also spoken out against Bashir’s arrest warrant, urging the balancing of reconciliation and justice. Her home country of South Africa pioneered such an approach with its post-apartheid Truth and Reconciliation Commission that offered amnesty for honesty.

Africa backed ICC founding
African states were early adopters of the Rome Statute that established the ICC, and around one-third of its member states are in Africa. 

African states have also played key roles in facilitating the ICC cases.

Of the eight countries where ICC investigations are under way or arrest warrants issued, four – Central African Republic, Democratic Republic of Congo, Mali and Uganda – are ICC member states which invited the prosecution to open investigations.

The UN Security Council had requested the investigation in Darfur – leading to Bashir’s arrest warrants for war crimes and crimes against humanity in 2009 and for genocide in 2010 – and also in Libya.

Benin and Tanzania were among 11 countries that voted in favour of the Darfur referral in 2005 while Gabon, Nigeria and South Africa were among those that voted unanimously for the Libya referral in 2011.

In both Ivory Coast and Kenya the ICC itself opened the investigations. The government of Ivorian President Alassane Ouattara welcomed the probe and arrest of former leader Laurent Gbagbo in 2011. In Kenya the ICC stepped in after domestic investigations stalled.

And now South Africa has responded to the ICC’s call and temporarily barred Bashir from leaving the country while scheduling a hearing on the arrest warrant against him.

The ICC however has faced criticism over its record so far. It has brought just two convictions, both against Congolese warlords. Another Congolese militia leader was acquitted while the case against Kenya President Kenyatta collapsed in December, although his deputy Ruto’s trial continues.

Aware of the criticisms ICC Chief Prosecutor Fatou Bensouda, a Gambian lawyer, is proving less Africa-focused in her investigations than her predecessor, Argentinian Luis Moreno Ocampo.

Bensouda is conducting preliminary investigations into alleged crimes in Afghanistan, Colombia, Georgia, Honduras, Iraq, Palestine and Ukraine, as well as in Guinea and Nigeria. – AFP

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Tristan Mcconnell
Guest Author

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