Is the International Criminal Court unfair to Africa?
Jun 15, 2009 05:03 EDT
African countries often complain about getting a bad press. They say there’s much more to the continent than war and poverty and starvation. Then there’s the huge coverage given to the International Criminal Court and the fact that all four cases the body is now considering come from Africa.
But what’s strange about the complaints is that the world’s poorest continent is the most heavily represented in the ICC, with 30 member countries. In the March 2009 elections for ICC judges, 12 out of the 19 candidates were Africans nominated by African governments. And Fatou Bensouda, the court’s Deputy Prosecutor, is from Gambia.
Of the four files before the court, the cases on Democractic Republic of Congo, Uganda and the Central African Republic were referred to the court by those very governments. The controversial fourth case, the indictment of Sudanese President Omar Hassan al-Bashir for war crimes, was put before the court by the United Nations Security Council.
The ICC has issued an arrest warrant for the leader of the huge oil-exporting country to face charges of war crimes during almost six years of fighting in Sudan’s violent Darfur region — but he has refused to deal with the court.
It was that case, heavily opposed on the continent, that brought the 30 African ICC members together in Ethiopian capital Addis Ababa for an unprecedented meeting last week after calls from some countries that the Africans should withdraw en masse.
That didn’t happen and diplomats told me only Libya, Senegal, Djibouti and the Comoros islands had seriously lobbied the meeting for a total withdrawal. Reporters were kept well outside the conference room and security seemed tighter than usual but, even from a distance we could hear some very angry exchanges coming from inside. And the frustration written all over the faces of delegates as the meeting stretched into the night seemed to indicate there were serious disagreements on the issue.
But, in the end, they told us nothing and simply said they would make recommendations to their heads of state. Most African countries want the indictment against Bashir deferred for one year and the African Union says it will compromise peace efforts in Darfur. The 53-member organisation is also calling for a one-year deferral.
“The pursuit of peace can be deadly impacted upon if players, including a head of state, are denied even the fundamental presumption of innocence,” AU Peace and Security Commissioner Ramtane Lamara told delegates before the meeting began.
His boss, AU Commission Chairman Jean Ping, has repeatedly accused the ICC of having an unhealthy fixation on African leaders and says it should look elsewhere, too.
So is the African Union right? Is the ICC unfair to Africa and could the warrant for Bashir compromise peace efforts in Darfur? Or is the fact that every case before the court comes from Africa simply a true reflection of the continent’s problems?
» » » » [Reuters]
African Union Loves Bashir, Hates the ICC
by Kevin Jon Heller, Opinio Juris
July 31st, 2010 - 9:01 PM EDT
Not surprisingly, the AU has condemned the ICC’s decision to issue an arrest warrant against Bashir for genocide. Equally unsurprising, the new resolution seems to have been adopted with the same kind of back-room machinations that led to the AU’s previous resolution condemning the ICC:Over the weekend, delegates from the AU countries reportedly fought a fierce battle that led to removing language that reiterates previous positions on granting immunity to Bashir in Africa and criticizing the ICC prosecutor Luis Moreno-Ocampo.
Bashir was indicted by the International Criminal Court (ICC) for war crimes in Darfur last year. This month the court added genocide to the charges, accusing him of orchestrating murders, rapes, and torture in the troubled western region.
The Sudanese leader himself has skipped this summit in retaliation to Museveni’s absence from his inauguration, according to Sudanese government sources who spoke to Reuters.
Some ICC states including South Africa along with Botswana and Uganda fought for the watered down resolution on ICC, while non-ICC countries such as Libya, Eritrea and Egypt wanted to maintain the hard-line approach.
However, the resolution on the ICC was changed on Tuesday to a more harsher version to the surprise of many observers who followed the summit closely and it remained unclear what happened behind the scenes at the final hours of the summit.
The text said that the summit “reiterates its decision that AU member states shall not cooperate with the ICC in the arrest and surrender of President al-Bashir of the Sudan.
The Sudan Tribune’s article — which is entitled, with remarkable forthrightness, “African Union Moves Aggressively to Shield Bashir from Prosecution” — leaves little doubt that the AU has absolutely no interest in bringing Bashir or any other African head of state (i.e., them) to justice. (To its credit, South Africa has already announced that it will arrest Bashir if he enters the country.) Here are some “highlights”:The summit also expressed “concern over the conduct” of the ICC prosecutor and accused him “making egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan al-Bashir of the Sudan and other situations in Africa.”
No, not rude and condescending statements! How awful of the Prosecutor not to treat a mass murderer with kindness and respect. Perhaps Scott Gration can give Bashir an extra portion of cookies, smiley faces, and gold stars to soothe his bruised ego. Then we’ll definitely get peace in Darfur.On Saturday the AU Commission Chairperson who is a long-time fierce critic of the court, slammed the ICC and said that its prosecutor “does not care” if his actions jeopardize peace in Sudan and reiterated assertions that the Hague tribunal is “bullying” Africa.
Because nothing says bullying like investigating three situations that African states self-referred to the Court and one that was referred by the Security Council. As for peace, we really do miss the friendly relations between the Darfuris and the Sudanese government that existed for two decades before the ICC ruined everything.On Tuesday, the AU Chairman, Malawi’s President Bingu wa Mutharika speaking to reporters questioned the legality of ICC jurisdiction over the Darfur case.
The UN Security Council (UNSC) issued resolution 1593 under chapter VII in March 2005 referring the situation in Darfur to the ICC. At the time Tanzania and Benin voted in support of the resolution while Algeria abstained.
“Let us look at the position of the ICC,” said Mutharika. Do they really have a right to tell us what to do on this continent? It’s a question. Do they have a right to try Sudan, who’s not a member of ICC? I don’t know.”
He might not know. Those of us who understand how the Security Council works do. More seriously, Mutharika’s statement illustrates just how disingenuous the AU’s attacks on the ICC really are. The AU’s problem is with the Security Council, not with the Court. (And with Russia and China, traditional allies of Sudan that did not veto Resolution 1593.) But it’s much easier to launch intemperate attacks against a judicial institution that is limited in its ability to fight back than against the UN, which the AU still needs.The AU final resolution also slammed the “blatant abuse of the principle universal jurisdiction” and called for “immediate termination of all pending indictments”. It called on the international community to respect “the immunity of state officials when applying the principle of Universal Jurisdiction”.
A tiny problem: the ICC doesn’t have universal jurisdiction. And the Security Council referral removed any immunity from prosecution by the ICC that Bashir might have had. (Arrest and surrender issues are, of course, more complicated.)Mutharika stressed that Bashir will not be tried outside the continent under any circumstances.
“As chairman, I would not sweep the issue of El Bashir under the table,” Mutharika stated, but underscored that Bashir could not and would not be tried outside the African soil.
The Panafrican News Agency (PANA) reported that AU leaders deliberated behind closed doors on whether Bashir could stand trial before an African court but said that the proposal was defeated.
A source told PANA that the African leaders advised the Arusha-based African Court of Justice to explore its ability to undertake a war crimes trial or crimes against humanity in Africa.
Some leaders warned their compatriots, who would be indicted in future for rights abuses, including war crimes and genocide, that they would face justice.
“They explored the process of instituting an African trial of President Bashir, but again, we have no mechanism to do that. They had wanted to go the [former Chadian president] Hissene Habre way, but it has taken 10 years to try him (Habre) . This line of discussion was discouraged because it does not deliver justice,” the source said.
So, we won’t sweep Bashir’s crimes under the table — but we won’t adopt a resolution calling for him to be tried before an African court, we have no pan-African mechanism for such a trial (the African Court of Justice has no criminal jurisdiction), and the one national attempt to try a head of state has failed miserably.
Meanwhile, the most comprehensive study to date of Darfuri attitudes toward Bashir found that 98% want him to stand trial before the ICC.
So who should the Court listen to? The AU or the Darfuris themselves?
» » » » [Opinio Juris]