Africa’s push to withdraw from ICC blocked, countries divided
Sudanese President Omar al Bashir at a State function in Uganda. African Union leaders have consistently refused to enforce an ICC arrest warrant against the Sudanese leader. FILE PHOTO | MORGAN MBABAZI
What you need to know:
Mr Ruto, Kenya’s President Uhuru Kenyatta and four others had been charged with crimes against humanity related to the 2007/8 post-election violence.
Kenya, had, therefore been at the forefront of lobbying African countries to withdraw from the court on the grounds that it was targeting African leaders and carrying out an imperialist agenda.
The new push, however, is believed to have been fronted by Uganda and Sudan. Botswana and Senegal strongly lobbied against the motion.
A draft motion pushing for the mass withdrawal of African countries from the International Criminal Court was blocked during the recent Africa Union summit in Kigali where it was to be endorsed.
While we could not immediately establish the behind-the-scenes negotiations leading to the motion’s withdrawal, Botswana, Ivory Coast, Nigeria, Senegal, Tunisia and Algeria — a non-ICC member — had previously rejected calls for withdrawal.
“The best defence is not to abuse, but to stick to the law. We would never allow our president to get away with murder. We are not being prescriptive, we are just asking that we up the game,” Botswana’s Vice President Mokgweetsi Masisi said in an interview with Bloomberg on the sidelines of the summit.
While the draft motion was crafted during the 26th Summit in January and anchored in the AU resolution for the ICC to terminate the case facing Kenya’s Deputy President William Ruto, Nairobi was not keen on pushing the agenda in Kigali because all the cases facing its leaders had been dropped due to “insufficient evidence”.
Mr Ruto, Kenya’s President Uhuru Kenyatta and four others had been charged with crimes against humanity related to the 2007/8 post-election violence.
Kenya, had, therefore been at the forefront of lobbying African countries to withdraw from the court on the grounds that it was targeting African leaders and was carrying out an imperialist agenda.
The new push, however, is believed to have been fronted by Uganda and Sudan. Botswana and Senegal strongly lobbied against the motion.
The leaders at the 26th Summit had mandated the Open Ended Committee of foreign affairs ministers to meet with the United Nations Security Council to discuss the intention of African countries to withdraw, and was to report to the summit in July.
The committee was formed during the Johannesburg summit in June 2015, as the leaders reiterated their previous decision for deferral of the ICC proceedings against President Omar al Bashir of Sudan and Mr Ruto, in accordance with Article 16 of the Rome Statute.
African countries have defied the court’s request to arrest President Bashir, who has been indicted for genocide and war crimes in the Darfur region.
In Uganda, President Yoweri Museveni has been critical of ICC in public, but reconciling his position has been difficult because the government has allowed the court to try elements opposed to his regime, bringing home the bittersweet relationship that Africa has with the court.
But according to international criminal law scholar Prof William Schabas, African states should support the Hague-based court, because “it is an important institution in promoting both justice and peace in the world, which Africa, more than any other continent need.”
But Joseph Chilengi, the presiding officer of the Economic, Social and Cultural Council, an advisory organ to the AU said that the ICC is part of the problem of the international justice system rather than a solution, adding that substantial reforms are needed to protect its independence.
“The ICC gives the world most political body, the UNSC, special prosecutorial rights of referral and deferral over its activities; additionally the European Union through its constituent parts provides more than 70 per cent of the ICC budget,” said Dr Chilengi.
“The Rome statute provides that no state party can give more than 22 per cent of the court’s budget; this is why no European, NATO or North American soldiers or politicians will ever appear before the court.”
In an interview with The EastAfrican, associate director of the International Justice Programme at Human Rights Watch Elise Keppler said that the blocking of the call for mass withdrawal was “a game-changer,” but ICC still lacked enforcement capacity without the co-operation of governments.
Just this month, ICC referred Uganda and Djibouti to the Assembly of State Parties to the Rome Statute and the UNSC for failing to comply with the request for the arrest and surrender of President Bashir to the court.
“It is now up to them to take the measures they deem necessary,” a statement from the court said in resignation.
The president of the court, Judge Silvia Fernandez, appealed for more goodwill from governments during the International Justice Day on July 17.
“The ICC needs specific and concrete forms of co-operation, including co-operation to arrest suspects, gather and preserve evidence, protect witnesses and enforce our sentences,” said Ms Fernandez.
Among the enforcement measures being considered is amending the Rome statute to allow UN peace keepers to arrest suspects indicted by the ICC.
This would be similar to a UNSC resolution that allowed its mission in the Democratic Republic of Congo (Monusco) military wing to work with the DRC government to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through co-operation with states of the region and the ICC.”
