As a court of last resort regarding atrocities and such crimes under its mandate, the international criminal court (ICC) stood as the watchdog and guardian of international human rights norm holding world leaders and individuals accountable for atrocities perpetrated. From inception, perennial African dictators have shown contempt against the ICC in trying to derail its mandate, accusing the Court of imperialism and disproportionally biased against Africa. I have analysed those concerns in the context of empiricism and the wider notions of law and order, responsibility, international law, and ultimately justice for the victims concerned.
The International Criminal Court is a multilateral agreement ‘’Rome Statute’’ accented to by one-hundred and twenty-two nation-states with the primary aim of deterring and preventing atrocity crimes as set out in its foundation and functioning document. The statute had seek to establish a world-wide court system exercising jurisdiction beyond national boundaries and across continents as far as four crimes are concerned: War crimes, genocide, crimes against humanity, and the crime of aggression. As an institution, the ICC is an independent and permanent court system with powers stretching five continents, not just Africa. It has determined to put an end to impunity for the perpetrators of those crimes and to put up barriers to the infraction of such crimes. Even if such deterrence capability should fail the court then serves as a last resort in administering justice by serving punitive strikes against culprits, be they presidents, ministers, military personnel, businessmen, or such private citizens.
Although legally binding, the weakness of the Court lies in its democratic deficit with only 34 out of 54 African countries ratifying the Rome Statute. This has made for a state of affairs less to be desired for with the Court under heavy scrutiny from critics and states within that dissenting bracket. The salient point here is to serve justice, ensure war crime perpetrators and such atrocity criminals are brought to book and face punishment; albeit the Court shall only involve in cases where states are unable or unwilling to do so themselves (Article 17). Contrary to some ill-judged rhetoric from African dictators, the Court does not exercise absolute power having limitations imposed on its remit. It is noteworthy that the ICC dynamic – The responsibility to prosecute – is only triggered after the failure of the protection responsibility of the state towards citizens. That responsibility, if fulfilled and satisfied by African leaders shall render the Court redundant and obsolete in their jurisdiction. Despite failures in promoting democratic values, African states are encouraged to uphold those basic human rights norms inherently universal. The Court has shown that it will pursue war criminals wherever they hide as embodied in the principle of positive complementary. This has brought domestic politics and international law together in administering justice by strengthening the Court’s resolve in law and order.
Historically, the lessons and legacies of colonialism has left fragile states still to find their identity. This was the result after the Berlin conference (1884), leaving Africa fragmented and carved up into nation-states with people of alien cultures grouped together in ‘new’ countries. This further resulted in a weak structural make-up of those societies in which no-patrimonial leaders are seen as above the state and in some instances beyond criticism. With rampant corruption mounting, African leaders are still struggling to shake-off the gate-keeper state tag despite five decades of independence. In countries such as china, corruption is a treasonable offence, punishable as high crimes. And with the ‘’Panama papers’’ scandal brewing up the big-wigs at the helm of the Chinese Communist party, suppression of domestic media by Africa’s presidential monarchs exposing their decadence and luxurious lifestyles is producing accelerated complaints of human rights abuses across the continent. Corruption, if not tamed and addressed, often leads to other forms of crimes, including savagery and intrastate conflict.
As a court of last resort as far as crimes of international stature are concerned, the ICC has faced a climate of hostility from certain African leaders with dubious human rights record. Despite those difficulties, the court has had good working relationship with many countries on the continent. However, it continue to struggle with no-patrimonial dictators hostile to its existence and legal reach. This include extreme rhetoric in public discourse by The Gambia’s Yaya Jammeh, withholding of documents as in Al Bashir’s Sudan, and intimidation of potential witnesses as documented in cases against the Kenyan leadership. Not only are investigations time consuming and costly, the fact that half of the countries in Africa refuse to endorse the Rome Statute has further complicated its work.
The so-called ‘strong men’ ruling African states have exhibited realist tendencies with continued obsession with power. The unfulfilled promises to the electorate lay dormant whilst their offshore bank accounts in Switzerland and elsewhere continue to balloon-up. In sub-Saharan African, for instance, presidents have schemed in coercing and encroaching on both legislative and judicial powers respectively in prolonging their rule. This has left us with a political-economic system infested with selfish politicians hampered by misguided egos obsessed with favourable media headlines. For Africa to realise its development potentials, it is critical that her political leaders uphold and fulfil their pillar 1 responsibilities, respect international law and norms in the context of human security.
As a political tool, the International Criminal Court serves both as a means of deterrence and compliance mechanism enjoining on states to fulfil their pillar one responsibilities as laid out in the R2P norm. It is imperative that African leaders adhere to the social contract, obey the constitution, and respect institutionalism so that the instruments of governance – separation of powers and checks and balances – are intact. Man is inherently selfish and easily corrupted, and given unchecked power thus breeds duplicity. Therefore, the dispersal of political power away from the clutches of one individual or group is the only rational and pragmatic skill to emancipate Africans from political violence and bloodshed. In his reign as chief-prosecutor, Ocampo was often flagged and maligned by Rogue leaders in Africa for ‘disproportionately’ targeting them. However, the current holder of that office is African who was unanimously endorsed by the AU, throwing up their complaint into doubt.
The common theme and anger among African leaders is the double standard and timidity of the ICC in certain cases. Unscrupulous African leaders have long complained that the court unfairly targets them and have requested for deferral of cases against sitting heads of state. This was rejected by the UN Security Council adding to their frustrations. A classic of such vexation is war crimes committed in the 2003 Iraq war by the Bush and Blair administrations respectively, the 2008 Russian aggression on Georgia, etcetera. In all fairness charges could and should be brought against President Bush, Vice-president Cheney, Defence secretary Rumsfeld, Tony Blair, Alistair Campbell, and others for endorsing and beating the drums of that war on false pretence. Russian military personnel and kremlin officials should also face the ICC on war crimes charges in regards to Georgia and Ukraine respectively if the court is to be believed. But, because of institutional arrangements at the supranational level and the politicised nature of international law, the inconsistency at the top is astounding. By following on such high-profile cases, this shall help restore authority and global confidence in the court.
The ICC has often advocated that its simple aim is to end atrocity and impunity, and has endeavoured to find and bring war criminals to justice. As with Nazi war criminals refusing to recognise the authority of the Nuremberg tribunals, rogue African leaders have resorted to such brinkmanship labelling the Court as racist, unjust, and imperial. Despite hostility towards the court, former UN Secretary-General Kofi Annan has said that withdrawal from the court would be a ‘badge of shame’. Nobel Peace laureate Archbishop Desmond Tutu has echoed similar sentiment stressing that African leaders seeking to dodge the court are effectively looking for a license to kill, and oppress their own people with impunity. As Democratic Congo militia leader, Lubanga, and former (Junta) President of Liberia, Charles Taylor spend lonely nights behind bars, with investigations lingering in Uganda, Central African Republic, Mali, and Gambians screaming for one against that dictator, African leaders are finally in fear of a legal instrument watching over despotic preponderance.
It is far more productive to keep a society content by providing for its needs than it is for a self-interested ruling elite to seek compliance through violence. The chief prosecutor has in fact intimated that some of the cases involved originated from African countries themselves seeking to redress past injustices. After the horrendous 2010 post-elections violence in Ivory Coast, the proprio motu powers activated investigations into alleged crimes by the contending stakes in that contest has indicted former president, Gbagbo and his cronies.
As globalisation encroach on national boundaries connecting people and cultures world-wide, reclusive African dictators are finding it harder to rule the old. The rise of technology and social media has effectively exposed introverted despots away from their luxurious mansions onto public political discourse which do not sit well with them. Their last ray of hope, so it appears, is hiding under the ‘nationalism’ banner in fending off waves of democratic and such seductive human rights norms their citizens are demanding, as enjoyed in the west. As the Sudanese president, Al Bashir, attended the 2015 AU summit, the failure of the South African government to arrest and hand him over to the ICC on war crime charges was a decrepit of duty demeaning the Rome statute and a major scar on human rights campaign across the continent.
The common complaint among African leaders is that the court is disproportionately biased against Africa. That argument is misleading and dishonest meant to garner sympathy amongst an unversed and a poorly educated electorate. To their credit, however, all successful prosecutions up to date have been against war crimes perpetrators from Africa with several such investigations looming. But we should also note that the Nuremberg tribunals, precursor to the ICC, had successfully prosecuted Nazi war criminals; and so has the ‘ad hoc’ Tokyo tribunal post-World War Two. Again, the former Bosnian-Serb war-time General, Radovan Karadzic, brought to The Hague over genocidal crimes committed in Srebrenica was sentenced to forty years imprisonment over the massacre of eight-thousand Bosnian Muslims. Hence, the Rome statute provides the Court with a mandate to investigate and prosecute war crime charges on an individual basis; and nowhere has it advertised that Africa is on trial. Empirical evidence has also shown charges against the former Chilean dictator, Pinochet, with calls in the UK for former prime minister, Blair, to stand trial on war crime charges pertaining to the Iraq war. Earlier this morning, the former president of Chad, Hissene Habre, was sentenced to life imprisonment on war crime charges by a specially convened Senegalese/AU court in the capital, Dakar. This represents a major boost to African Union’s request to prosecute crimes committed under its jurisdiction. The principle of complementary has shown that African states should implement democracy if they effectively want to prosecute and punish atrocious crimes committed in their jurisdiction. As a result of complementary, Senegal has sent a clear warning to other leaders on the continent that they are not immune to prosecution.
African leaders have managed to convince their ill-educated public that the ICC is conducting a witch-hunt against Africa wanting to impose western values. This complaint lack strength because the acquittal of the Kenyan president, Kenyatta, and his deputy, Ruto, should struck a chord showcasing the court in a new light as an independent and an impartial arbiter world-wide. Instead African leaders continue to hide behind their own mismanagement and failures firing cheap shots at the ICC as a western imposed institution. The truth is this the court is a universal legal entity in which membership is voluntary, of which African countries themselves willingly signed up to. Furthermore, the chief prosecutor, Fatou Bensouda, is African who has reiterated that the court is not targeting African states, but protecting African victims.
Concluding – the research has refuted wild claims from Africa that the court unfairly targets the continent and its leaders by showcasing cases of a worldwide nature that it has embarked on. However, the blatant disregard and impunity of international law and justice as evident by the Israeli aggression on Palestine has scarred the ICC in Africa’s eyes. And as cases of gross human rights violations mount across the world, it does make one wonder if the court has the required resources or personnel to investigate and prosecute all the crimes under purview, not just in Africa. Although internalised, the paper regret the fact that the Court lack jurisdiction to effectively carry out its mandate in all African countries in furtherance of the international norm. It is recognised that the lack of credible institutions of governance across Africa has exacerbated those violations with impunity, calling on strengthening of democracy to counter that. However, to maintain credibility and for the Court to remain relevant long term, the research enjoined the prosecutor to uphold democratic values and deliver on justice wherever injurious crimes against humanity, regardless of jurisdiction, are committed.
Witten By Gibril Saine, UK