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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.

AfricaFocus Bulletin can be reached at africafocus@igc.org. Please write to this address to subscribe or unsubscribe to the bulletin, or to suggest material for inclusion. For more information about reposted material, please contact directly the original source mentioned. For a full archive and other resources, see http://www.africafocus.org


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