By Chidi Odinkalu
Less than a decade ago, the detention centre of the International Criminal Court, ICC, in Scheveningen on the outskirts of The Hague could easily have been mistaken for a committee meeting of leaders of the African Union. One of its long-term guests was Laurent Gbagbo, a former president of Côte d’Ivoire. From neighbouring Liberia, Gbagbo’s contemporary, Charles Taylor, kept up a punishing schedule on the tennis courts of the facility. With them there also was former Vice-President of the Democratic Republic of the Congo, DRC, Jean-Pierre Bemba.
At about the same time, Kenya’s
President, Uhuru Kenyatta; and his Deputy and future successor, William Ruto,
were suspects on trial before the ICC. For over five years before that, since
2009, the Court had an arrest warrant still outstanding for Sudan’s President
Omar Hassan Al-Bashir.
Even as the ICC advanced towards an arrest warrant
for Sudan’s then dictator, the African Union, AU, complained somewhat vainly
that “abuse and misuse of indictments against African leaders have a destabilizing
effect that will negatively impact on the political, social and economic
development of States and their ability to conduct international relations.”
The month before the ICC
authorized the arrest warrant against Omar Al-Bashir, in February 2009, the
summit of the African Union’s Heads of State and Government requested the
Commission of the African Union “in consultation with the African Commission on
Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights,
to examine the implications of the Court being empowered to try international
crimes such as genocide, crimes against humanity and war crimes, and report
thereon to the Assembly in 2010.” In the wake of the onset of the crisis in
Libya, the African Union decided that the ICC’s focus on the African continent
was “discriminatory.” In Malabo, the capital of Equatorial Guinea, in June
2014, the AU adopted a treaty to confer on the court jurisdiction over
international crimes. This treaty is known as “the Malabo Protocol”, after the
city where it was adopted.
It was the assessment of the AU
then that the Bashir arrest warrant would “seriously undermine the ongoing
efforts aimed at facilitating the early resolution of the conflict in Darfur.”
More than five years after Omar Al-Bashir’s ouster and one and a half decades
after the ICC’s arrest warrant for him, the current metastasis of atrocities in
Darfur provides reason to reassess the African Union’s fears.
At the time when the AU first
voiced its fears and suspicions about the ICC in the first decade of this
millennium, they were largely greeted with derision. This attitude was
foundational to the existence of the ICC. At the adoption of the statute
establishing the court in 1998, then UK Foreign Secretary, Robin Cook,
infamously sniffed that “this is not a court set up to bring to book Prime
Ministers of the United Kingdom or Presidents of the United States.”
This colonial superciliousness
did not preclude African countries from recognizing the opportunities in the
ICC. The continent was the single largest source of resilient support to the
project and process that culminated in the creation of the Court. With 33 of
the 124 member states of the ICC, Africa provides over 26.6% of the signatories
to the Statute establishing the Court, the largest single bloc of any
continent. In January 2004, when few trusted the Court to exercise its
functions with skill or responsibility, Uganda’s President Yoweri Museveni
voluntarily referred the situation in the country to the court, yielding up the
first case received by it. By the end of the first decade of its operations,
the prosecutorial docket of the ICC read like a political geography of Africa:
Central African Republic, Côte d’Ivoire, DRC, Kenya, Libya, Mali, Sudan,
Uganda.
A senior lawyer practising at
the ICC accused it of being “a vehicle for its primarily European funders, of
which the UK is one of the largest, to exert their influence and, particularly,
in Africa.” For a long time, fundamentalists of the ICC dismissed this view as
lacking in credibility.
As the current prosecutor of the
Court, Karim Khan, prepared to turn his attentions to the atrocities in the
ongoing crisis in Gaza earlier this year, however, all the suspicions about the
targeting of Africa by the court were confirmed. In a high profile interview
with the Cable News Network, CNN, last month, Mr. Khan disclosed that an
un-named senior Western official seeking to dissuade him from seeking an arrest
warrant against Israel’s Prime Minister, had told him that the ICC was “built
for Africa and for thugs like Putin.”
At about the same time, it
emerged that the head of Israel’s much feared foreign intelligence agency, the
Mossad, had “allegedly threatened a chief prosecutor of the international
criminal court in a series of secret meetings in which he tried to pressure her
into abandoning a war crimes investigation.” According to The Guardian of London, this was part of “an almost decade-long campaign by the country
(Israel) to undermine the court (ICC).” In the wake of these disclosures, those
who issue gratuitous lectures to Africa about the impunity and accountability
have seen nothing and said even less.
The Prosecutor whom they threatened was Fatou
Bensouda, Gambia’s current High Commissioner to the United Kingdom whose
courage in defending the independence of her office as the second Prosecutor of
the ICC made her the subject of punitive sanctions by the United States.
In the Malabo Protocol, the
African Union, tired of protesting the pigmented project of the ICC, decided to
endow an African Court of Justice and Human and Peoples’ Rights with
jurisdiction over 14 crimes of an international or transboundary nature on the
continent. These include aggression; war crimes; crimes against humanity;
genocide; trafficking in persons, in hazardous wastes or in drugs; terrorism,
corruption; money laundering; mercenarism; piracy; illicit exploitation of
natural resources; and unconstitutional changes in government.
Despite the truly capacious
scope contemplated by this treaty, a sustained international campaign
frightened most African states into losing their sovereign nerves about the
establishment of the court. The current scandal around the skullduggery and
double standards in relation to the ICC’s efforts to address Afghanistan and
Palestine have finally persuaded African countries to return attention to the
project of an African competence on international crimes.
On 31 May, Angola became the first country to ratify the Malabo Protocol. That leaves 14 more to do so before the African Court of Justice and Human and Peoples’ Rights can be established. That cannot happen too soon. When it does, the new court will have 15 judges who will sit in three sections. The General Affairs section will handle cases on mostly trade, regional integration and continental institutions. The section on Human and Peoples’ Rights will focus on human rights cases. There will also be a section on International Criminal Law which will have a pre-trial, trial and appellate chamber. The new Court will house one prosecutor and also one registrar.
Fundamentalists of the ICC mock
the idea of an international crimes instance for Africa. In truth, in the
period of just over two decades of its operations, the record of the ICC has
been largely underwhelming. It can do with all the help that it can get. The
continental criminal instance proposed by the AU should be seen as a paydown by
Africa on precisely that kind of assistance. Ten years after its adoption,
there is no longer time to wait; Angola’s leadership in the push to bring the
Malabo Protocol into force deserves to be quickly complemented by other African
countries.
*A
lawyer and a teacher, Prof Odinkalu can be reached at chidi.odinkalu@tufts.edu
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