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Africa and the ICC

The recent special summit of the African Union (AU) marked a turning point in Africa’s relations with the International Criminal Court (ICC). At the summit, which was held in the context of the cases against Kenya’s President Uhuru Kenyatta and Deputy President William Ruto, there was much criticism of the ICC’s supposedly “condescending manner” towards Africans (in the words of Ethiopia’s Foreign Minister Tedros Adhanom), and the way in which it acts “against the sovereignty of African states and peoples” (in those of Mr Kenyatta, who addressed his fellow heads of state on Saturday, October 12). As a result of lobbying by Mr Kenyatta as well as Sudanese President Omar Al-Bashir – who is wanted by the court to respond to allegations of war crimes and crimes against humanity in his country – the AU changed its relationship with the Court.

The AU did not decide that its members would withdraw from the ICC, reportedly because of opposition to the idea mainly from Ivory Coast, Senegal and Botswana, but the summit ended up resolving to demand an amendment to one of the clauses in the Rome Statute that founded the ICC: Article 27, in terms of which “official capacity as a Head of State […] shall in no case exempt a person from criminal responsibility under this Statute.” The AU wants the ICC to refrain from prosecuting sitting heads of state like Mr Kenyatta and Mr Bashir. In the meantime, the AU resolved to request a one-year deferment from the United Nations Security Council, and said that if that demand is not met by November 12 (the date on which Mr Kenyatta’s trial is set to begin) another special summit will be convened to make “far-reaching resolutions.”

According to a report in the British Telegraph on Sunday, October 13, Western diplomats are prepared to accede to the request for a one-year deferment. A “senior European diplomat” told the newspaper that “a solution must be found that avoids a breakdown in relations with Kenyatta or the court’s authority.” It seems, therefore, that most of those concerned will hope that by next year the whole issue will have gone away. But Mr Kenyatta will still, at that point, have three and a half years left in his first term, and we are sure that there will be further efforts in the meantime to amend Article 27 of the Rome Statute, and further threats that Mr Kenyatta will simply stay away from his trial if the AU’s demands are not met. Notably, Kenyans seem to be remarkably supportive of this, backing their president even though the current developments mean that there will be little disclosure and little justice for the victims of post-election violence in late 2007 and 2008.

On Friday, October 11, while the AU was meeting in Addis Ababa, the ICC decided that one of its suspects could be tried in his own country: Abdullah Al-Senoussi, who served as chief of intelligence to Libya’s deposed leader Muammar Qadhafi. The pre-trial chamber in Mr Senoussi’s case – he is accused of crimes against humanity for the murders of anti-Qadhafi protesters in 2011 – decided that Libya’s authorities are “willing and able” to try him at home and that there is no need to try him at The Hague.

The decision is bizarre. Libya is certainly not “willing and able” to give Mr Senoussi any kind of fair hearing: many thousands of men who fought on Qadhafi’s side in the civil war are still being held in dungeons under terrible conditions without trial, and Mr Senoussi’s lawyer is furious at the decision. The ICC may be paving the way to make a similar call in the cases against its Kenyan suspects, so washing its hands of the whole difficult business.

Why do we care?
All of last weekend’s developments were unfortunate. The ICC has (again) been made to look impotent: after many years of failure to do anything about Mr Bashir, it seems that it will now have to even more openly admit its weakness by granting the deferment to Mr Kenyatta. This will diminish its precious ‘authority’ in the very act of trying to hang on to it. By the same logic, we think that if the international community has to choose between amending Article 27 of the Rome Statute and seeing African states withdraw en masse, it will prefer to change the statute and leave the Kenyatta case on ice for the remainder of his time as president.

This will result in a perverse incentive for heads of state suspected of international crimes to hang on to power for as long as they can to escape prosecution – surely not an outcome that the ICC would consider ideal. The ICC has made too many concessions already, and as a consequence it is increasingly becoming what its detractors have always accused it of being: an instrument of victors’ justice, delegated by vengeful governments to give some legitimacy to the prosecutions of old opponents. And much of this is the court’s own fault, a consequence of its past inclination to pick easy cases against international pariahs (all African) instead of trying to make cases against the genuinely powerful.

As of writing we do not think that Mr Kenyatta will ever appear in court at The Hague; the case against Mr Ruto has not come up for discussion but it seems that it will go ahead.

Analyst: François Conradie
francois@nkc.co.za

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