At the request of the leadership of Kenya, the African Union on October 11-12 convened an extraordinary summit in Addis Ababa. One would have hoped, in light of the recent, terrible events on the continent, that such a summit was meant to discuss strategies for preventing another Lampedusa disaster; or how to address the serious electrical power crisis on the continent; or how to address the serious threat of terrorism to the continent. Disappointingly, the summit was not about discussing a stronger partnership to address the serious economic and political challenges confronting Africa. No! The summit was fully funded by African governments to discuss how to further widen the impunity gap on the continent. It was purely meant to consecrate an unholy plan, conceived through an alliance between the Kenyan leadership and their East African counterparts, to shield the “big men” on the continent from facing justice. It was about legitimizing the “big man – no case” tradition that has so permeated the continent for decades.
The main agenda of the summit was to persuade the 34 AU member states that have signed the Rome Statute to withdraw en masse, and weaken the powers of the International Criminal Court (ICC) in fostering accountability and justice for serious crimes on the continent. Many African leaders believe the ICC has been “targeting” the continent and its leaders unfairly. They have accused the Court of delivering selective justice as all of the Court’s current cases are in Africa. Some governments, including the Government of the Republic of Kenya, have dismissed the ICC as a neo-colonial outfit designed only to hound African leaders. In response, many have argued for the need to set up an African-based institution mandated to investigate and prosecute violations of international law.
The outcome of the Addis extraordinary Summit was a mixed bag in the sense that while Kenya and its allies couldn’t succeed in obtaining a resolution for a mass withdrawal from the Rome Statute by the 34 AU member states, some of the resolutions reached at the summit were simply not reflective of Africa’s commitment to international justice. The participants at the extraordinary summit resolved, among other things, that “to safeguard the constitutional order, stability, and integrity of member states, no charges shall be commenced or continued before any international court or tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office”. They also resolved that “the trials of President Uhuru Kenyatta and Deputy President Samoei William Ruto, who are the current serving leaders of the Republic of Kenya, should be suspended until they complete their terms of office”.
These resolutions, while extremely disappointing, were the least surprising. The primary objective of the summit, which was in some ways achieved, was to shield African leaders, present and future, from facing justice, regardless of the enormity of their offences. The first article of the resolution was deliberately couched to create a shelter of impunity not only for the existing leaders and their cronies, but for future generation of leaders. The effect of the resolutions was to reverse the increasing gains in closing the impunity gap on the continent. Unfortunately, those who assembled in Addis Ababa seemed to have ignored the feelings of the victims of the Kenyan post-election violence, and the painful memory of the 1,200 people who perished. To tell victims to wait for at least five years more before justice can be delivered is simply unreasonable. Is there any guarantee that they’ll be alive for another day or year? And, I am not sure anyone of them needed lectures on the importance of delivering justice in a timely manner.
Worse still, the outcome of the Addis Ababa summit gave the wrong signal about Africa’s increasing role in strengthening international justice, particularly in the last decade. Since the genocide in Rwanda, and the terrible events in Sierra Leone and across the continent, African leaders have shown remarkable commitment to promoting justice and accountability on the continent. Rwanda’s support to the UN for the establishment of the International Criminal Tribunal for Rwanda (ICTR), the Sierra Leone Government’s cooperation with the UN to set up a special war crimes tribunal, and the fact that 34 of the 54 AU member states have signed the Rome Statute clearly underscore Africa’s commitment to international justice.
There are growing concerns, particularly by African heads of state, about the seeming uneven application of international justice across the globe. Sadly, powerful states have succeeded in shielding their citizens or allies from facing justice. The UN Security Council has unfortunately let down many victims across the world, including those in central Europe and Syria. The Court has also reportedly declined to investigate crimes allegedly committed in Venezuela and in Iraq by British soldiers. These have led to claims, particularly among African leaders, that the ICC is targeting Africa inappropriately.
The fact that the ICC and the UN Security Council have not been able to expand the reach of international justice beyond Africa doesn’t undermine its legitimacy or the relevance of its work on the continent and across the globe. Instead, it creates an unhealthy public perception about fairness or the lack of it in fostering justice for all. It certainly creates an impression that the Court’s reach is only limited to Africa. While that seems to be a good thing for victims in Africa, it certainly undermines any hope for justice by the rising number of victims in other parts of the world. The fact that many violations in other parts of the world are going unpunished is a tragedy that requires everyone’s attention. Still, it is no justification for dismissing the relevance of the Court or planning to discontinue cooperating with it. In fact, provides additional reason why Africans must work together to address these gaps. As I have often argued, the inaccessibility of justice only deepens victims’ sense of grief and increasingly reduces their capacity to reconcile with the past. This could seriously undermine national and global efforts at promoting long term peace and stability.
No disrespect meant, but I share little or no sympathy for African leaders who complain that they are being unfairly targeted by the ICC. First, I have not seen a single instance of a vexatious indictment proffered against any leader by the ICC. In fact, the Court’s Office of the Prosecutor, which is now headed by an African, must seek approval from the Court’s Trial Chamber (based on evidence presented before it) before trial commences. Second, I am completely unimpressed by the high level of hypocrisy and selfishness displayed by some African leaders. Take a moment to think about this: apart from the fact that African leaders willingly signed the Rome Statute, which created the International Criminal Court, four of the seven cases before the ICC were referred to the Court by the African leaders themselves. Two others, Liberia and Sudan, were transferred to the Court by the 15-member UN Security Council, with the full backing of the African representatives on the Council. In the case of Kenya, and not unsurprisingly, it was the failure of the Kenyan government to investigate the crimes that occurred following the post-election violence in 2008 that prompted ICC’s intervention. Both President Kenyatta and Deputy President Ruto had promised to fully cooperate with the Court, regardless of the outcome of the Kenyan election. What is happening now should make every right-thinking person ponder about their commitment to justice for Kenyan victims.
It is also worth pointing that even as African leaders complain about the ICC’s unwillingness to investigate crimes outside Africa, the United States Government has bilateral immunity agreements (BIAs) with many ICC member countries, including those in Africa, that essentially seek to protect US citizens from being handed over to the ICC. It seems to me, then, that many of these states are happy to shield US citizens from facing the ICC, but keep complaining that the Court does not go after other nationals. Simply hypocritical!
Since the ICC’s work is guided by the principle of complimentarity, which means that it is a court of last resort, and once African states demonstrate that they are able and willing to independently try allegations of serious violations of international law, the ICC would be less active on the continent. The recent decision by the ICC’s Trial Chamber in the Libyan case was victory for the principle of complimentarity. No doubt, one of the priority projects of African states should include strengthening national accountability mechanisms, including the police and the judiciary, to be able to deliver justice in a fair and transparent manner. Even so, many African states that are signatories to the Rome Statute have not domesticated the law. In order to deliver credible justice for serious violations of international law by themselves, African states that have signed the Rome Statute should domesticate the law, strengthen accountability mechanisms, and demonstrate a lot more commitment to promoting human rights. Only then shall we begin to genuinely provide a credible alternative. Otherwise, any attempt at withdrawing from the ICC or shielding leaders from facing justice by such hasty resolutions, would only serve as a deliberate effort to deepen the pain and grief suffered by victims of serious offences on the continent.