Will Africa Leave International Criminal Court?
Alexander MEZYAEV | 24.02.2015 | OPINION

Will Africa Leave International Criminal Court?

Robert Mugabe, the President of Zimbabwe, has been chosen as African Union (AU) chairman. He is soon to be 91. Since a long time Mugabe has been a pain in the neck for the West. Zimbabwe has been under sanctions for many years and its head of state is imposed a travel ban preventing him from entering Europe. After the election the European Union relaxed some restrictions. The African Union has taken a decision to substitute the International Criminal Court (ICC) with a court of its own to consider the cases of human rights violations and international crimes. 

The fact that the African Union may withdraw from the ICC Statute has attracted attention. The issue was discussed while the ICC tried to prevent the drastic decision. In December 2014 the trial chamber demanded for the process to be started or withdraw all charges in the case of Kenyan President Uhuru Muigai Kenyatta. On December 5, 2014, the Office of the Prosecutor of the International Criminal Court (ICC) officially withdrew the charges against the President of the Republic of Kenya. There was no evidence to go upon, as there was no evidence to support accusations in the cases of Libyan Muammar Gaddafi, Laurent Gbagbo, the President of Cote D’Ivoire and Omar - Bashir, the President of Sudan. The purpose of all these lawsuits was not to establish the truth but rather to exert pressure on the heads of state. It’s propitious to remember that when the ICC held its first trial (the case of Thomas Lubanga from the Democratic Republic of the Congo) the first witness to testify confessed right in the court room that he had given false evidence under the pressure of prosecutor’s office. 

Right before the African Union’s summit the International Criminal Court decided to demonstrate its readiness to cooperate with the AU. It used the case of Ugandan President Yoweri Museveni, the leading opponent of the International Criminal Court, for the purpose. For ten years (1) (!) the Court could not arrest a single person charged in the case of Lord’s Liberation Army. On January 24, Dominic Ongwen, a commander in the Lord's Resistance Army, abruptly decided to surrender and face the trial the day after. (1) This trick proves that the Court can arrest anyone it brings charges against. But it does it only to meet its own purposes. 

The struggle for keeping Africa a party to the International Criminal Court is still ahead. Attempts to find a compromise mixed with muscle flexing will take place till the next AU summit in June 2015. 

The demonstration of force is becoming more visible in Nigeria with its general elections (including presidential election) to take place on February 14. On February 2, Fatou B. Bensouda, an ICC prosecutor, unceremoniously meddled into the pre-election campaign calling on Nigerians to make a right choice. Sounds blur enough, but there is a clear message in this phrase. The fight against the Islamist group Boco Haram is at the top of Nigerian agenda. The group takes active part in the election campaign. Blasts have accompanied the leading candidates rallies. On February 3, a bomb went off just 3 minutes after Nigeria's President Goodluck Jonathan left an election campaign rally. (3) The Boco Haram’s terrorist activities have been intensified. The ICC prosecutor has said the Nigeria’s government forces have already committed crimes against humanity that fall under the ICC jurisdiction. It’s an unambiguous message to the President of Nigeria. The prosecutor calls on the voters to make a right choice. It constitutes a direct involvement into Nigeria’s internal affairs. The candidate calling for unrelenting fight against Boco Haram has received a «black spot» from the International Criminal Court. (4) 

African states are not alone among those who are disillusioned with the ICC activities. On January 16, the International Criminal Court prosecutor, Fatou Bensouda, launched a «preliminary examination into the situation in Palestine». In response Israel started an active campaign to discredit the International Criminal Court. It called on other states to stop funding it. Israeli Foreign Minister Avigdor Lieberman said on January 18, «We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it», he told Israel Radio. «This body represents no one. It is a political body», he said. «There are a quite a few countries - I've already taken telephone calls about this - that also think there is no justification for this body's existence». Germany, Canada, Australia and Japan are the main ICC donors. There was an interesting reaction to the statement. «The countries that support the court will continue to support the court», said one European diplomat, who spoke on condition of anonymity because of the sensitivity of the matter. «We respect the independence of the court and the prosecutor». (5) «Protecting the judicial and prosecutorial independence of the ICC is critically important», he added. (6) By the way, the investigation may lead to quite opposite results than expected, no matter the picture is clear. The ICC prosecutor may come to a conclusion that Israel is not the only one to commit the crimes. Trying to look «impartial» the ICC’s ruling may say that the «both sides» have done it. Such a verdict would not mean that both - Israel and Palestine – would be made responsible. Israel has not become a party to the ICC Statute (the Rome Statute) and it’s not under the Court’s jurisdiction. Palestine is a signatory to the Rome Statute and its leaders may become defendants. Once Israel is not a party, internal political opponents, like Hamas, for instance, could have been the target for the Palestinian government becoming a signatory to the Rome Statute of the International Criminal Court. It’s not a rare occasion when the International Criminal Court is used as an instrument to fight internal opposition by governments of some states. Here is an example. The government of Uganda became a party to the Statute of ICC hoping the Court will help it to catch the leaders of the Lord's Resistance Army. The same thing has happened in the Democratic Republic of Congo. The government did not dare to bring to court the opposition leaders and transferred them to the ICC. By accepting the case the Court violated its own Statute. Palestine has to take into account that the attempts to transfer cases to the Court may have unexpected consequences. The ICC easily changes targets. The attempts to «outwit» the West may backlash. 

Talking at the final session of the African Union summit, the new African Union chairman Robert Mugabe has recommended that Africa must pull out of the International Criminal Court. «What the West will say or do is not my business», he added. The withdrawal from the International Criminal Court has already been included into the official agenda of the African Union summit to be held in June this year. (7)

Footnotes: 
(1) The government of Uganda asked to investigate the situation in the country in December 2003
(3) Nigeria: Jonathan Escapes Death in Gombe
(4) Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, ahead of the general and state elections in Nigeria
(6) The attempts to exert financial pressure on international courts have happened before. The Extraordinary Chambers in the Courts of Cambodia (ECCC), commonly known as the Khmer Rouge Tribunal has been facing financial difficulties for a number of years changing sponsors because the government of Cambodia has refused financial support. The reason is the attempts of some «independent» prosecutors of the Tribunal to launch lawsuits against those the Court was not targeted at initially. This is another example of a state using the «international community» and its financial resources for its own ends. The West never provides funds for something that does not meet its interests. This lesson should have been learnt a long time ago by those who want to outwit the elites that have ruled the world for many centuries… 
(7) President Uhuru Kenyatta issues a statement on the International Criminal Court (ICC) during the closing of the 24th Ordinary Session of the Assembly of Heads of State and Government of the African Union at AU Headquarters in Addis Ababa (excerpts).

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