AFRICA AND THE INTERNATIONAL CRIMINAL COURT

Aliyu Othman, Abuja

Recently three African Countries, South Africa, Burundi and the Gambia announced their withdrawal from the International Criminal Court (ICC). That action was in apparent response to alleged denigrating treatment of African countries by the Court. They believe that affairs of the Court are skewed in favour of countries from other regions.

Relationship between African nations and the ICC has not been cordial in recent years as a result of the perceived discrimination in the Court’s treatment of cases involving African leaders.

African countries have in the past used various means to alert the ICC to rise to its responsibilities, especially now that, Ms. Fatou Bensouda from the Gambia is ICC Chief Prosecutor at The Hague.

The office of the prosecutor acts as an independent body responsible for the investigation of cases of genocide, crimes against humanity as well as war crimes committed anywhere in the world. The office is also among other things responsible for the prosecution of individuals who were allegedly identified as responsible for those crimes committed in a given country or region.

Under article 13 of the Rome Statute, there are three ways the exercise of the ICC jurisdiction can be triggered where crimes appeared to have been committed by a member nation.

It can be in a situation where any state party of the Rome statute request the Prosecutor to carry out investigation like in the case of the governments of Democratic Republic of Congo and Uganda in 2004. Also, Central African Republic where the case was referred same Year 2004 but the investigations opened in May 2007 and Mali’s case of alleged war crimes reported to ICC in 2012 and investigations opened in 2013.

These countries ratified the Rome Statute: Mali in 2000, Central African Republic 2001 while Uganda and Democratic Republic of Congo were in 2004.

The United Nations Security Council may also refer a situation to the ICC prosecutor as in the Darfur region of Sudan through resolution 1593 of 2005 that led to the arrest warrant issued by the ICC on President Omar Al-Bashir despite the fact that Sudan is not a signatory to the Rome statute. The law provides that UN referrals may give the court jurisdiction over state not party to the Rome protocol like Sudan.

In another instance, the ICC may also initiate investigations after securing the authorization of the judges, as in the case of Kenya brought in 2010 after it ratified the statute in 2005, where President Uhuru Kenyatta was accused of crimes against humanity before assuming office. The case was terminated and the summons to appear vacated in March 2015.

The case in Ivory Coast where former President Laurent Gbagbo is still facing charges on crimes against humanity and in Georgia, a case of war crimes against humanity in the context of international armed conflict brought in January this year are still some classical cases initiated by the ICC.

Of all the countries facing investigations, 34 are from Africa, 19 from Asia and the Pacific, Eastern Europe also has 19 while Latin America has 28.  The Caribbean, Western Europe and North America have 25.

The wars and criminalities perpetrated in Africa by, or in collaboration with some western interests were allegedly planned with the hope to retain African nations as dependent on them as much as possible all the time.

It is expected that leading African nations like Nigeria, Egypt and Ghana will find a middle way out of Africa’s problem with the ICC by setting up a contact committee of eminent persons using the instruments of the African Union or the United Nations.

Despite the African Union resolution on Africa to boycott the criminal court and the immediate action taken by some nations, there is still hope that Africa and indeed other parts of the world will stand in defence of the truth.

It is hoped that the global community would intervene and prevail on the ICC to be impartial and treat cases on their merit, especially classical ones like the Libya, Iraq and Syria wars already backed with confessions.

It will be good for ICC to adopt new approach in dealing with the 124 member nations on equal bases especially in the cases instituted by itself compared to those initiated by the UN Security Council or member nations.

The ICC should be able to review its stand against Africa based on actions in recent years by its leaders at improving human rights records and end wars and crimes.

There must be a new approach that will end the deliberate target against African leaders by the ICC. It is only when such is done that the confidence of African countries such as Burundi, South Africa and the Gambia who have decided to quit the ICC will be restored and discourage other African countries from following in their footsteps, thereby eroding the credibility of the court before the eye of the world.