Jon Silverman analyses the roots of African states’ dissatisfaction with the International Criminal Court.
If the rule of law means anything, it is a no-brainer that impunity for those who commit egregious crimes has to be challenged. But when the mechanism for doing that is the International Criminal Court (ICC) and the sole target of its prosecutions is the continent of Africa, what appears to be a straightforward proposition becomes clouded.
Some of the arguments you encounter in African states is reductive. The ICC is a colonialist enterprise, with the West once again telling Africans how to behave from a spurious position of moral superiority. Why isn’t Assad of Syria in the dock, or Netanyahu, or Tony Blair or George Bush? Surely the people killed under their watch far outnumber those victimised in African states?
Well, it is true that the ICC sits in The Hague in the heart of ‘liberal’ Europe but then, back in 1998, during discussions on the Treaty of Rome, when the Netherlands put itself forward as the home of the court, no African state raised an objection. And there are legally and geo-politically arguable reasons why other arenas of conflict beyond Africa have not been the subject of prosecutions.
But clear all that off the table and take a cool forensic look at the way the ICC has gone about its business and you can see what the objections are. Sitting in a room in a Nairobi hotel listening to a group of East African journalists and NGO representatives discuss the failed prosecution of President Uhuru Kenyatta and his deputy, William Ruto, and you cannot escape the conclusion that the ICC – and let’s be specific here, the Office of the Prosecutor (OTP) – needs a root-and-branch review.
The charge sheet of incompetence and/or misapprehension about how best to run the case is a long one. The mistakes began under the first Chief Prosecutor, the Argentinian, Luis Moreno Ocampo, who gave the impression that he was happy to ‘outsource’ the gathering of evidence to local NGOs and raised expectations which he could not fulfil because he did not seem to understand that by taking on Kenyatta et al, he was taking on the Kenyan state and that it would resist through every means. That meant galvanising the media – including an effective use of Facebook and Twitter – into promoting the line that an ‘international’ court was putting the whole community on trial rather than prosecuting a limited number of individual politicians and others.
Having bitten off more than he could chew, it was doubly unwise of Ocampo to unite African heads of state in opposition to the ICC by a premature indictment of Bashir of Sudan, against the advice of other AU leaders, who asked him to defer. Ocampo further undermined his own credibility by allowing himself to be manipulated by President Museveni of Uganda, the first African head of state to invite him to visit. Having stated publicly that he would not confine ICC investigations to the atrocities of the Lord’s Resistance Army, he did just that and excluded Ugandan army crimes in the north of the country from consideration.
But Ocampo’s successor, Fatou Bensouda, of The Gambia, has not fared much better. She has said in an interview with Journalists for Justice that over half of the witnesses in the case against William Ruto withdrew or recanted their evidence because of intimidation. This should not have come as a surprise because an amendment to the ICC’s Rule 68 allows the court to admit a witness’s initial testimony even if later retracted. But the OTP proved no match against the Ruto defence team (with the weight of the state behind it) which argued that the rule change should not be applied. Gary Summers, part of Kenyatta’s legal team, commented that the prosecution was ‘just very, very amateur, with a lack of professionalism and a lack of rigour.’
So, with South Africa, The Gambia and Burundi leading what threatens to become a mass exodus from the ICC, whither justice in Africa? Some have pointed to the success of the Extraordinary African Chambers, sitting in Senegal, in convicting the former Chadian president, Hissène Habré. But a tribunal mainly funded by European governments hardly counts as an African solution to an African problem. Perhaps the African Union will drop its objection to the indictment of sitting heads of state. But fighters against impunity are not holding their breath.
The views expressed in this post are those of the author and in no way reflect those of the Africa at LSE blog or the London School of Economics and Political Science.