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Africa: AU and the International Criminal Court
AfricaFocus Bulletin
October 11, 2013 (131011)
(Reposted from sources cited below)
Editor's Note
"We recognize that international justice currently operates
unevenly across the globe. In some situations, powerful governments
are able to shield their citizens and the citizens of their allies
from the ICC's authority by not joining the ICC [International
Criminal Court] or using their veto power at the Security Council
to block referrals of situations to the court. ... But undercutting
justice for crimes where it is possible because justice is not yet
possible in all situations risks emboldening those who might commit
grave crimes. Working to expand, rather than contract, the
membership of the ICC is a key step in widening access to justice
and sending the message that no one is above the law." - 130 civil
society groups in Africa
During the decades of struggle against the apartheid regime in
South Africa, one of the most frequent opposing arguments heard by
those of us in the movement was that it was unfair to single out
South Africa when there were so many other human rights abuses
elsewhere in the world, including, of course, racism in the United
States and dictatorships among many of the countries which voted
against South Africa at the United States. The reply was not to
deny that reality, but to insist that this was a reason to expand
the struggle against injustice, not to back off on opposing
apartheid.
The same logic is now at work in the debate about the International
Criminal Court. While some African government leaders argue for
withdrawal from the ICC because it has disproportionately been used
in Africa, the reply from African civil society groups in the
letter below is not to deny that reality, which is obvious. It is
to say that the scope of international justice should be extended,
not reduced.
In the last two days an international petition initiated by the
internet campaign group Avaaz and by Archbishop Desmond Tutu has
called on the African Union to continue African support for the ICC
(https://secure.avaaz.org/en/justice_for_africa_icc/?fp). As of the
morning of the opening of the African Union meeting on the issue on
October 11 (today), the petition had reached 640,000 signatories.
This AfricaFocus Bulletin contains a statement from 130 groups
across the African continent calling for the AU to continue support
for the International Criminal Court. The full listing of groups
for readers to review is included despite its length. Also included
in this Bulletin are excerpts from an article in Pambazuka News by
Horace Campbell providing background on the issue and arguing the
same case.
For additional current articles on the same theme, see Aleemayheu
G. Mariam, "Saving African dictators from the ICC," at
http://www.pambazuka.org/en/category/features/89174 and Solomon
Ayele Dersso, "Unplanned obsolescence: The ICC and the African
Union, at http://tinyurl.com/lqe7e42
For two articles from January 2012 discussing the ICC and the
Kenyan case, see http://africafocus.org/docs12/ken1201a.php and
http://africafocus.org/docs12/ken1201b.php
For previous AfricaFocus articles on democratization and human
rights, see http://www.africafocus.org/polexp.php For previous
AfricaFocus articles on peace and security, see
http://www.africafocus.org/peaceexp.php
++++++++++++++++++++++end editor's note+++++++++++++++++
130 Groups across Africa call for countries to back ICC
Press release from Institute of Security Studies, South Africa
http://tinyurl.com/kgz69wj
October 4, 2013
To: Foreign Ministers African States Parties to the International
Criminal Court
Re: Support for the ICC at African Union (AU) summit on October
11-12
Dear Foreign Minister:
We, the undersigned 130 African civil society organizations and
international organizations with representatives in 34 African
countries, write to urge your government to affirm its support for
the ICC and the court's treaty, the Rome Statute, during the
extraordinary AU summit on the ICC scheduled for October 11-12,
2013.
As you know, the relationship between the ICC and some African
governments has faced renewed challenges as the ICC's cases for
crimes committed during Kenya's post-election violence in 2007-08
have progressed. This has led to the scheduling of the AU
extraordinary summit and questions over whether some African ICC
states may be considering withdrawal from the Rome Statute.
We believe any withdrawal from the ICC would send the wrong signal
about Africa's commitment to protect and promote human rights and
reject impunity as reflected in article 4 of the AU's Constitutive
Act. Needless to say, the work and functioning of the ICC should
not be beyond scrutiny and improvement. However, considerations of
withdrawal risk grave consequences for civilians in Africa, who
tend to bear the brunt of serious crimes committed in violation of
international law.
The ICC remains the only permanent criminal court with the
authority to act when a state with jurisdiction is unable or
unwilling to investigate or prosecute. As organizations working
within Africa, some on behalf of or alongside victims of
international crimes, we see every day the importance of ensuring
access to justice. It is also important to note that withdrawal
from the Rome Statute would not have a legal impact on the ICC's
existing cases.
A key criticism raised by some African leaders is that the court is
targeting Africa. While the ICC's cases are entirely from Africa,
the majority came before the court as a result of requests by the
states where the crimes were committed (Uganda, Democratic Republic
of Congo, Central African Republic, Côte d'Ivoire, and Mali). Two
other situations—Libya and Darfur, Sudan—were referred by the
United Nations Security Council, with the support of its African
members. Kenya is the only situation where the ICC Office of the
Prosecutor acted on its own initiative, but only with the approval
of an ICC pre-trial chamber after Kenya failed to take action to
ensure justice domestically.
We recognize that international justice currently operates unevenly
across the globe. In some situations, powerful governments are able
to shield their citizens and the citizens of their allies from the
ICC's authority by not joining the ICC or using their veto power at
the Security Council to block referrals of situations to the court.
We will continue to work with your government and other partners to
ensure consistency in the application of international justice,
including pressing against double standards at the Security
Council. But undercutting justice for crimes where it is possible
because justice is not yet possible in all situations risks
emboldening those who might commit grave crimes. Working to expand,
rather than contract, the membership of the ICC is a key step in
widening access to justice and sending the message that no one is
above the law.
The ICC's role in Kenya underscores the court's role as a crucial
court of last resort, and we urge your government to signal support
for this process to run its course.
Kenya's leaders in 2008 initially agreed to set up a special
tribunal to try cases related to the post-election violence, which
claimed more than 1100 lives, destroyed livelihoods, and displaced
more than a half-million people. But when efforts to create the
tribunal or to move forward cases in ordinary courts failed, the
ICC prosecutor opened an investigation. This had been recommended
by a national commission of inquiry set up as part of an African
Union- mediated agreement to end the violence.
Although the African Union, at the initiative of Kenya and Uganda,
called for a "referral" of the ICC's cases to a national mechanism
in Kenya at its May 2013 summit, such referral is only for the ICC
judges to decide on the basis of a legal challenge to the ICC,
known as an admissibility challenge. In view of a lack of genuine
national investigations and prosecutions, the ICC judges in 2011
rejected a challenge by the Kenyan government in these cases. Even
since that decision there have not been serious efforts within
Kenya to mount investigations and prosecutions of the post-election
violence.
Kenya has put governments in an awkward position by pressing for
action to avoid the ICC's cases for crimes committed in Kenya while
having failed to avail itself of the legal procedures for the court
to authorize such a move based on credible domestic investigation
and prosecution. If adopted, a recent resolution by the Kenyan
parliament to repeal the country's International Crimes Act also
would mean that the country would lose an important tool for the
domestic prosecution of international crimes.
African states have been some of the most important supporters of
the creation and effective functioning of the ICC. African states
played an active role at the negotiations to establish the court,
and 34 African states—a majority of African Union member
states—have now become ICC states parties. As discussed above,
African governments have sought the ICC's assistance to carry out
investigations and prosecutions, and Africans are also among the
highest-level ICC officials and staff and serve as judges at the
court.
In this context, we urge your government to work to ensure support
within Africa for the ICC and its critical role in the fight
against impunity, including in Kenya. This includes by signaling at
AU meetings, in public comments, and in bilateral discussions with
other African governments that the court represents a vital
instrument in the fight against impunity.
We would welcome the chance to discuss this important issue further
and civil society organizations with offices in your country will
be in contact to set up a meeting on these matters.
Sincerely,
1. Ditshwanelo - The Botswana Centre for Human Rights, Botswana; 2.
2. Amnesty International Burkina Faso; 3. l'Action des Chrétiens pour
l'Abolition de la Torture au Burundi; 4. Action pour le Droit et le
Bien-etre de l'Enfant, Burundi; 5. Association of Female Lawyers of
Burundi; 6. Burundi Coalition for the International Criminal Court
(ICC), Burundi; 7. Fontaine-ISOKO pour la Bonne Gouvernance et le
Développement Intégré, Asbl, Burundi; 8. Forum for Strengthening
Civil Society, Burundi; 9. Forum pour la Conscience et le
Développement, Burundi; 10. Ligue burundaise des droits de l'Homme,
Burundi; 11. Réseau des Citoyens Probes, Burundi; 12. Cameroon
Coalition for the ICC, Cameroon; 13. Gender Empowerment and
Development, Cameroon; 14. Association of Female Lawyers of Cape
Verde; 15. Central African Coalition for the ICC, Central African
Republic; 16. Association tchadienne pour la promotion et le
défense des droits de l'Homme, Chad; 17. Ligue tchadienne des
droits de l'Homme, Chad; 18. Ivorian Coalition for the ICC, Côte
d'Ivoire; 19. Ligue ivoirienne des droits de l'Homme, Côte
d'Ivoire; 20. Mouvement ivoirien des droits humains, Côte d'Ivoire;
21. Réseau Equitas Côte d'Ivoire; 22. Access to Justice, Democratic
Republic of the Congo (DRC); 23. Christian Activists Actions for
Human Rights in Shabunda, DRC; 24. Congo Peace Network, DRC;
25. Congolese Foundation for the Promotion of Human Rights and
Peace, DRC; 26. Coordination Office of the Civil Society of South
Kivu, DRC; 27. Democratic Republic of the Congo National Coalition
for the ICC, DRC; 28. League for Peace, Human Rights and Justice,
DRC; 29. La Ligue des Elécteurs, DRC; 30. Ligue pour la Promotion
et le Développement Intégral de la Femme et de l'Enfant, DRC; 31.
The Lotus Group, DRC; 32. Synergie des ONGs Congolaises pour les
Victimes, DRC; 33. Vision GRAM- International, DRC; 34. Vision
Sociale asbl, DRC; 35. Eastern Africa Journalists Association,
Djibouti; 36. Cairo Institute for Human Rights Studies, Egypt; 37.
Egyptian Initiative for Personal Rights, Egypt; 38. Human Rights
Concern, Eritrea; 39. The Civil Society Associations Gambia; 40.
Coalition For Change, Gambia; 41. Abibiman Foundation, Ghana; 42.
Amnesty International Ghana; 43. Centre for Popular Education and
Human Rights, Ghana; 44. Communication for Social Change, Ghana;
45. Ghana Center for Democratic Development, Ghana; 46. Media
Foundation for West Africa, Ghana; 47. Association des victimes,
parents et amis du 28 septembre 2009, Guinea; 48. Organisation
guinéenne des droits de l'Homme et du Citoyen, Guinea; 49. Amnesty
International Kenya; 50. Civil Society Organization's Network,
Kenya;
51. Independent Medico-Legal Unit, Kenya; 52. International
Commission of Jurists Kenya; 53. Kenyans for Peace with Truth and
Justice, Kenya; 54. Transformation Resource Center, Lesotho; 55.
Actions for Genuine Democratic Alternatives, Liberia; 56. Concerned
Christian Community, Liberia; 57. Foundation for International
Dignity, Liberia; 58. Liberia Research and Public Policy Center,
Liberia; 59. National Civil Society Council of Liberia; 60. Rights
and Rice Foundation, Liberia; 61. Centre for Human Rights and
Rehabilitation, Malawi; 62. Centre for the Development of People,
Malawi; 63. Civil Liberties Committee, Malawi; 64. Church and
Society Programme, Malawi; 65. Association malienne des droits de
l'Homme, Mali; 66. Coalition Malienne des Défenseurs des Droits
Humains, Mali; 67. FEMNET-Mali; 68. Mali Coalition for the ICC,
Mali; 69. NamRights, Namibia; 70. Access to Justice, Nigeria; 71.
Alliances for Africa, Nigeria; 72. BAOBAB for Women's Human Rights,
Nigeria; 73. BraveHeart Initiative for Youth & Women, Nigeria; 74.
Center for Citizens Rights, Nigeria; 75. Centre for Democracy and
Development, Nigeria;
76. Centre for Human Rights and Conflict Resolution, Nigeria; 77.
Citizens Center for Integrated Development & Social Rights,
Nigeria; 78. Civil Liberties Organisation, Nigeria; 79. Civil
Resource Development and Documentation Centre, Nigeria; 80.
Coalition of Eastern NGOs, Nigeria; 81. Human Rights Agenda Network
Nigeria; 82. Human Rights Social Development and Environmental
Foundation, Nigeria; 83. Institute of Human Rights and Humanitarian
Law, Nigeria; 84. Justice, Development and Peace Commission,
Nigeria; 85. Legal Resources Consortium, Nigeria; 86. National
Coalition on Affirmative Action, Nigeria; 87. Nigeria Coalition for
the International Criminal Court, Nigeria; 88. Socio-Economic
Rights and Accountability Project, Nigeria; 89. West African Bar
Association, Nigeria; 90. Engagement for peace and human rights,
Republic of the Congo; 91. Human Rights First Rwanda Association,
Rwanda; 92. Amnesty International Senegal; 93. Ligue sénégalaise
des droits humains, Senegal; 94. Centre for Accountability and Rule
of Law, Sierra Leone; 95. Coalition for Justice and Accountability,
Sierra Leone; 96. Centre for Human Rights, University of Pretoria,
South Africa; 97. Co-operative for Research and Education, South
Africa; 98. Darfur Solidarity, South Africa; 99. International
Crime in Africa Programme, Institute for Security Studies, South
Africa; 100. South Africa Forum for International Solidarity, South
Africa;
101. Southern Africa Litigation Centre, South Africa 102. Children
Education Society, Tanzania; 103. Services Health & Development for
people living positively with HIV/AIDS, Tanzania; 104. Tanzania
Pastoralist Community Forum, Tanzania; 105. Amnesty International
Togo; 106. West African Human Rights Network, Togo; 107. Advocates
for Public International Law Uganda; 108. African Centre for
Justice and Peace Studies, Uganda; 109. Community Development and
Child Welfare Initiatives, Uganda; 110. Corruption Brakes Crusade,
Uganda; 111. East and Horn of Africa Human Rights Defenders
Project, Uganda; 112. Foundation for Human Rights Initiative,
Uganda; 113. Human Rights Network Uganda; 114. Kumi Human Rights
Initiative, Uganda; 115. Lira NGO Forum, Uganda; 116. People for
Peace and Defence of Rights, Uganda; 117. Soroti Development
Association & NGOs Network, Uganda; 118. Uganda Coalition on
International Criminal Court, Uganda; 119. Uganda Victims
Foundation, Uganda; 120.Women Peace and Security, Uganda; 121.
Southern African Centre for the Constructive Resolution of
Disputes, Zambia; 122. Amnesty International Zimbabwe; 123.
Counselling Services Unit, Zimbabwe; 124. Coalition for the
International Criminal Court, with offices in Benin and the
Democratic Republic of the Congo; 125. Enough Project, with offices
in the Democratic Republic of the Congo, Kenya, South Sudan, and
Uganda;
126.Human Rights Watch, with offices in Kenya and South Africa;
127. International Federation for Human Rights, with offices in
Côte d'Ivoire, Guinea, Kenya, and Mali; 128. Parliamentarians for
Global Action, with offices in the Democratic Republic of the Congo
and Uganda; 129. West African Journalists Association, with offices
in Mali and Senegal; 130. Women's Initiatives for Gender Justice,
with offices in Egypt and Uganda
AU, Kenya and the International Criminal Court: Beyond Impunity
Horace G. Campbell
2013-10-10, Issue 649
http://pambazuka.org/en/category/features/89173
This week many of the current political leaders of Africa will meet
in Addis Ababa to discuss whether African states should withdraw en
masse from the International Criminal Court because of the
indictment of Kenyan President Uhuru Kenyatta and Vice President
William Ruto. This meeting will be an extra-ordinary session of the
African Union (AU) organized to deliberate on International
Jurisdiction, Justice and the International Criminal Court (ICC).
At issue is whether the ICC has discriminated against Africans and
whether the case of the killings of over 1,100 persons in 2008 and
the displacement of over half a million should be a matter of
international criminal law.
To ensure that the original reasons for the case before the ICC are
not forgotten, it is urgent that the Assembly of the African Union
remembers its mandate and foundational doctrine of non-indifference
embedded in Article 4(h) of the Constitutive Act of the AU,
mandating the continental body to 'intervene … in respect of grave
circumstances, namely: war crimes, genocide, and crimes against
humanity.' As such, I am arguing that the special session of the AU
has far more serious priorities. If Uhuru Kenyatta and William Ruto
are innocent, then they can have their day in court and their
exoneration before an international criminal court can only convey
greater political legitimacy to them.
As already stated, one aim of the African Union when it was formed
was to ensure that there was no impunity for those who committed
crimes against humanity in Africa. If indeed, it is the position of
the African peoples that the ICC has discriminated against
Africans, then the most urgent matter before this upcoming Assembly
is for Africans to build regional and national mechanisms to bring
those who commit crimes against humanity to justice. Unless the
Assembly can demonstrably guarantee the African peoples that the AU
has genuine political will and capacity to thoroughly enforce
article 4(h) of the Constitutive Act, to stem the criminal
activities of desperate and selfish political leaders in Africa,
any discussion about mass withdrawal from the ICC could be
tantamount to self-delegitimization.
In the past month there has been considerable sympathy for the
peoples of Kenya in the aftermath of the bombings at the Westgate
Mall in Nairobi. While decent human beings everywhere continue to
mourn with Kenyans, it should be remembered that leaders such as
Yoweri Museveni of Uganda, Paul Kagame of Rwanda and President
Isaias Afewerki of Eritrea (the three pressing the case for this
special session) do not have the political legitimacy to demand
that the African Union withdraw en masse from the ICC.
The Road to ICC and the Case before the Court
The referral of the 2007-2008 Kenyan post-election violence case to
the ICC came, not from imperialists, but from the Panel of Eminent
African Personalities established by the African Union — with Kofi
Annan as chair and Benjamin Mkapa, former president of Tanzania and
Graca Machel, former South African first lady as members.
The ICC charges alleged that Mr. Kenyatta and Mr. Ruto helped to
fuel the violence that followed the 2007 elections. Both men have
declared that they are innocent.
In the heat of this post-election struggle, imperial states such as
the United States and Britain wanted the matter to be put aside so
that international business could continue to thrive in Kenya.
Condoleezza Rice, then the Secretary of State for the United States
flew to Kenya to ensure that western interests were given priority.
The US Assistant Secretary of State for Africa, Dr. Jendayi Frazer,
represented Kenya as a base for the global war against terror and
did not countenance any discussion about whether the election
results represented the will of the people.
It was the Panel of Eminent African Personalities that was formally
mandated by the AU on 29 January, 2008 to mediate between President
Kibaki's Party of National Unity (PNU) and Mr. Odinga's Orange
Democratic Movement (ODM); the panel was charged with finding a
peaceful solution to the crisis. One important outcome of the
Panel's work was the referral of the cases of those behind the
violence to the ICC. There had been a demand for the local courts
in Kenya to investigate the authors of the crimes but six years
after this violence only the homicide of 19 persons has been
brought before the Kenyan judiciary.
Self-triangulation and Self-Delegitimatization?
In May 2013, Africa celebrated fifty years of unity. While the plan
of the Assembly of the AU was to prioritize the next fifty years
(Africa 2063) during the deliberations, the agenda of the meeting
was hijacked by the energetic efforts of the political leadership
of Kenya and their allies to discuss the matter of the cases of
Uhuru Kenyatta and William Ruto before the ICC. Yoweri Museveni of
Uganda had been as aggressive as the Kenyan leadership in placing
the matter of the ICC before the Assembly of the African Union. At
the end of the 25 May summit, AU chairman, Ethiopia's Prime
Minister Hailemariam Desalegn charged that 99 per cent of those
indicted by the ICC are from Africa, which left the body in no
doubt that the international court's prosecutors were intentionally
targeting Africans. Hailemariam Desalegn stated that: 'The African
leaders have to come to a consensus that the process the ICC is
conducting in Africa has a flaw. The intention was to avoid any
kind of impunity, but now the process has degenerated into some
kind of race hunting. We object to that.'
The debate on the ICC intensified within the corridors of power in
Africa with those opposed to the ICC trials couching their
opposition in anti-imperial discourse. The AU's Final Decision and
the Summit proceedings reflected the line of the conservative media
in Kenya. As noted by one analyst, the Kenyan conservative media
view adopted in AU's Final Decision and Summit proceedings holds
that: 'The ICC is a tool of Western powers that targets and
discriminates against the continent; undermines African efforts to
solve its problems, especially finding peace and reconciliation in
post-conflict situations; and is shot through with doublestandards,
focusing its firepower only on African countries such as
Sudan, Kenya and Libya but not on Iraq or the Gaza.'
Both Yoweri Museveni and Hailemariam Desalegn carried the same
arguments to the General Assembly of the United Nations in
September when they lobbied for the UN Security Council to call on
the ICC to drop the case.
It is clear that in the present diplomatic overtures to drop the
case before the ICC –ndash; against Kenyatta and Ruto –ndash; there are many
who have forgotten the origins and enormity of the case and
seemingly ignored the fact that its referral to the ICC was made by
a panel of Africans mandated by the AU and acting in tandem with
the non-indifference doctrine of AU's founding document. Against
this backdrop, the AU could be projecting a posture of confusion,
self-triangulation and self-delegitimization if it allows its
platform to be used for mass withdrawal from the Court by some
African leaders, without first investing in workable structures
that can impartially and decisively bring to justice powerful
perpetrators of crimes against humanity on the continent.
...
[read remainder of article, focused on Kenya, on the Pambazuka
website http://pambazuka.org/en/category/features/89173]
* Horace G. Campbell, a veteran Pan Africanist is a Visiting
Professor in the School of International Relations, Tsinghua
University, Beijing. He is the author of 'Global NATO and the
Catastrophic Failure in Libya: Lessons for Africa in the Forging of
African Unity,' Monthly Review Press, New York 2013
The views of the above article are those of the author and do not
necessarily reflect the views of the Pambazuka News editorial team
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with
a particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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