ICC, THE WEST AND A WOUNDED CONTINENT
July 31, 2014
By Chief Charles A.Taku*
President Obama has invited African leaders to the White House to discuss US-African relations. In diplomatic language these relations are said to be excellent. Excellence in diplomatic language may not necessarily mean what it asserts.
The election of President Obama as the first black man to become the President of the greatest and strongest country in the world, raised hopes of better US-Africa relations. This hope was heightened with the very inspiring appeal and promises the US President made in Accra Ghana on his maiden African tour as President of the US. The visit and the speech he made carried symbolic weight. Ghana is the home of the Osagefo, Dr. Kwame Nkrumah the undisputed father of African independence, freedom and Pan Africanism. Many Africans are disappointed that the US has not done enough to engage and help Africa to realize the lofty goals the President laid out in his historic speech to Africa from Accra. The positions taken by the US on mounting African conflicts and US relations with Africa regarding the selective and inappropriate targeting of Africa by the ICC are among the sources of profound, anxiety discomfort and even worry.
President Obama did not and may not go to Kenya, the land of his father’s birth due to America’s support for the ICC indictments against President Uhuru Kenyatta and Deputy President Mr. William Ruto. The positions taken by Western nations on the The ICC intervention in Kenya and its prosecutions of the President and Deputy President have been widely resented and criticized by the African Union and a majority of African countries. The Situation in the Republic of Kenya has become the public face of the ICC in Africa. The attitude of the US and Western Countries towards the cases has defined and framed the politics of these countries towards Africa. This article explores relations between the ICC, the USA, EU countries and the AU.
International criminal justice for Africa
In an article captioned, “Politics seen Undermining Credibility of a Court” published in the New York Times on June 2, 2014, Somini Sengupta, cited this impassioned rebuke by the UN Ambassador of the US to the United Nations Samantha Power of Russia after Russia vetoed a Security Council Resolution referring the Situation in Syria to the International Criminal Court. “Our grandchildren” the US Ambassador impassioned, “will ask us years from now how we could have failed to bring justice to people living in hell on earth”. According the Somini Sengupta, these remarks “were part of an unusual American push to widen the reach of the global tribunal”. The writer termed this US rebuke hypocritical and politically motivated.
The policy of non-cooperation of the US with the ICC is contained in the US Congress Nethercutt Amendment and the American Service Members’ Protection act (2004). These legislations prescribed economic and military sanctions against ICC State Parties refusing to sign bilateral immunity agreements with the US refusing to cooperate with the ICC in relating to alleged crimes against US Service Members. Somini Sengupta stated that this “perception” of the US “could not come at a worse time for a court whose biggest challenge is to convince the world that its investigations are not directed by politics”. According to the writer, the ICC “has been criticized for indicting a disproportionately large share of Africans. It has won only two convictions in the course of a decade. It has been unable to apprehend several men it has indicted-including the former Libyan dictator Co. Muammar el-Qaddafi’s son, Seif al-Islam el-Qaddaffi, whose investigation the United States Supported”.
The political and economic pressures and blackmail the West in general, and Europe in particular is subjecting Africa to using the ICC process is obvious from the ACP-EU revised Cotonou Agreement which stipulates in Article 11.6 that parties shall seek to take steps towards ratifying and implementing the Rome Statute and shall share experience on the adoption of legal adoption of legal instruments required for ratification and implementation of the Rome Statute. Using economic leverage and threats of withholding economic aid to force ACP member states that are in the main African may to accede to the Rome Statute may be construed as threats, corruption, and neo-colonial arm twisting to subjugate and exploit African countries and their economies. The economic and political motivations of this revised agreement evince an effort to recolonize African using the ICC as an instrument of coercion.
David Hoile in his book “Justice Denied: The Reality of the International Criminal Court” (2014) found the arrogance and condescending motivations for this patently illegal provision insulting. David Hoile states that the inter-relationship between the ICC and the EU is clear. Both are treaty-based organizations dominated by Germany, Italy, Spain, France and Britain which provides over 63% of the budget of the ICC. Through this arrangement, the fundamental element of consent that is required by the Vienna Convention on the Law of Treaties and Customary International Law in treaty making is denied African states. Through the Revised ACP-EU agreement, Europe is using the poverty, despoliation of African economies and historical injustices arising from European colonial rule to force Africa back into colonial status using the ICC.
While purporting to criticize the US immunity agreements, Britain and France, according to David Hiole purported to insert reservation clauses in the Rome Treaty insulating their nationals from prosecution at the ICC although no provision exist in the ICC Statute or the Rome Statute permitting such reservations. This conduct unequivocally confirms the fact that the ICC is an African Court established and sponsored by European imperial colonial powers to foster its neo-colonial politico-economic agenda in the continent.
With most of the world’s population outside the jurisdiction of the ICC, the erstwhile colonial powers with neo-colonial political and economic ambitions in the continent, absent a fortification of the ongoing African resolve to foster closer intercontinental unity, African countries individually not be able to withstand the effect of this blackmail. China, India, the USA, Russia and Pakistan are not State Parties to the Court. Three of the five super powers, the USA, Russia and China are not state parties, yet they retain the power to exert political influence on the court through referrals and deferral of cases before the court. Through this mechanism and the exercise of the Responsibility to Protect Mandate,(RPM) of the Security Council, non-members of the ICC were unjustly afforded a controversial tool of coercion which they have exploited to effect regime change in selected African Situations. This obtained in the Situations in Cote D’Ivoire and Libya where the ICC has failed to investigate the murder of Moammar el-Kaddafi over whom the court asserted jurisdiction prior his capture and execution.
Africa, the West and the Security Council.
The Republic of Kenya ratified the Statute of the International Court (herein the ICC) on 15 March 2005. Like a majority of African Countries that ratified the Rome Statute, Kenya had good cause to be proud of her exercise of sovereignty on this matter. The sad events that occurred next door in Rwanda and Sierra Leone where hundreds of thousands were massacred in the that “collective madness” afflicted those African countries were still green in the collective memory of many in Kenya and on the African continent.
Kenya and Africa carefully followed the evolution of the trials conducted at the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone and believed that if anything, international criminal justice could be a reasonable bar to impunity. It was believed that international Criminal Justice could bring justice and reconciliation to these countries and the continent of Africa, also called the troubled continent.
On December 27, 2007 to February 28, 2008, Kenyans experienced their own dose of “collective madness”. This occurred after a contentious election in which some 1,500 Kenyan citizens were alleged to have been killed and some 250,000 allegedly displaced. Led by the African Union, the International Community scrambled to douse the flames of conflict. These efforts succeeded in bringing a negotiated solution to the political crisis.
In the heat of the conflict, even before a negotiated solution was implemented, the Prosecutor of the ICC Mr. Moreno Ocampo announced his intention to conduct a proprio motu investigation in the “Situation in the Republic of Kenya” under article 15 of the Statute of the ICC. On November 26, 2009, he filed the “Request for authorization of an investigation pursuant to Article 15” in which he requested the Chamber to “authorize the commencement of an investigation into the situation in the Republic of Kenya in relation to the Post-election violence of 2007-2008”. (emphasis added).The decision by the Prosecutor of the ICC to interject such proceedings into the politically charged election violence, the timing of his decision, and the evolution of the cases have undoubtedly inflamed passions and dented the image of the ICC in Africa. The Prosecutor in his interventions and public media statements made the exploration of other options in the search of justice for the victims of the electoral violence impossible.
Kenya is a key ally in the fight against terrorism in Somalia and strategic country on which a population of over two hundred and fifty million Africans rely for their economic and political security. Kenya is currently at war both in Somalia and at home due to its commitment, sacrifices and contributions towards the war efforts of the civilized world against terrorism. On that premise the African Union fearing the destabilization of an important African country, supported an application by Kenya to the Security Council to defer the cases pending at the ICC against the President and Deputy President of Kenya for one year to allow them handle the internal threats to the security of Kenya and external threats to the sub-region posed by Al Shabbab terrorist group.
The Prosecutor of the ICC vehemently objected and lobbied against the application of the Republic of Kenya that was supported by the AU. The Security Council, led by Western nations and the US engineered the defeat of the UN Resolution deferring the cases. The ambiguous positions taken by Britain, France and Germany at the Assembly of State Parties supported by NGOs and Special interest groups challenged every reasonable amendments made by African State Parties presented by Kenya. In particular they challenged amendments intended to enable the cases proceed while allowing the accused ample opportunities to fulfill the electoral mandate given them by a majority of Kenyans to provide leadership and protections guaranteed them by the Constitution of Kenya.
Surprisingly, only a few months after this crusade to humiliate African Countries at the Security Council and at the Assembly of State Parties, the Prosecutor applied to the Trial Chamber trying the case against President Uhuru Kenyatta to grant an adjournment of almost a year for the purpose of conducting further investigations. The Prosecutor conceded that she was not ready to go to trial and that the evidence in her possession was insufficient to sustain a conviction. This conduct led many to believe that those supporting the prosecutions have an agenda other than the alleged interest of victims to use the ICC process to embarrass and ridicule the accused.
Alternatives to the ICC
Professor Nancy Armoury Combs in her book, “Fact –Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions” (2010) stated that recent research has called into question the ability of international criminal tribunals to advance reconciliation and peace-building efforts following large scale violence. According to Professor Combs, “International criminal justice was, in sum, the subject of a great deal of soaring and inspirational rhetoric but in recent years, the glow surrounding international criminal justice has begun to fade “many have begun questioning the ability of international criminal tribunals to achieve many of the goals that previously had been reflexively attributed to them”.
In answer to his question whether “are there alternatives to the legal fundamentalism of the ICC” David Hoile answered in the positive. He pointed to amnesties and truth commissions so long as their primary purpose is addressing and resolving conflict and not shielding perpetrators from criminal responsibilities. According to him, these may qualify as valid attempts at investigating crimes. These processes which hasty ICC interventions have disrupted have attained visible results in rehabilitating, reconciling, and deterring crimes where the ICC process has failed.
During the African Union Conference that took place in Malabo Equatorial Guinea, very recently, the AU adopted an amendment to the Statute of the African Court on Human and Peoples’ Rights conferring the court with criminal jurisdiction. The amendment conferred immunity from prosecution of Heads of State, Heads of Government and certain senior government officials. This provision has been widely criticized even by ardent African critics of the ICC selective interventions in Africa and supporters of an African alternative to the ICC.
African State Parties to the Rome Statute and the AU previously unsuccessfully sought an amendment of the Statute of the ICC to grant immunity to Heads of State and Heads of Governments from prosecution while in office. Customary international law provides these immunities to sitting sovereigns although the Rome Statute expressly excludes such them.
However, the political horsemanship that went on during the negotiations leading to the Rome Statute in order to sufficiently encourage the United States and a number of world powers to join the ICC laid the foundation for the politicization of the court. The provisions granting the power of referral and deferral to the Security Council; a political organ of the UN, made it possible for super powers like the US which is a non –State Party of the ICC opposed to the exercise of the court’s jurisdiction over its citizens and service members to nevertheless use the court to advance its strategic interests in areas where crimes falling under the jurisdiction of the court may be committed.
Political horsemanship in the negotiation of bilateral and multilateral treaties like that creating the ICC, the treaty on Climate Change, the Statute of the ICJ with its optional clauses, reservations and several others are allowed by the Vienna Convention on the Law of Treaties and Customary international law. This practice while allowing for agreement and consensus in treaty making is intended to encourage the maximum number of states possible to become parties to the treaties.
The Charter of the UN, the Geneva Conventions on the Crimes of Genocide, War Crimes and Crimes against Humanity and the Vienna Law on Treaties emphasize the consent of states as the underlying basis for treaty engineering. While this practice has encouraged maximum participation in world governance in advancing collective objectives for the promotion and protection of peace, security, progress, the pursuit of happiness and justice, it has adversely impacted on and politicized international justice. To this extent, the ICC may be said to be a victim of international politics and African countries its unintended victims. On and of its own, the ICC was a noble idea which was subverted from inception by Western powers that invaded, partitioned and colonized African perpetrating crimes whose enduring effect on the continent, Africa in error believed could be mitigate by the ICC. To Africa, the spirit of the ICC that was intended from inception is at variance with that which has played out so far against the continent, its victims and collective interest.
The negotiations leading to the amendment of the Statute of the African Court followed this unfortunate trend. There is no gainsaying the fact that the immunity clause will encourage many African leaders to ratify the Protocol to the Court thus granting access to the court to a majority of the people on the continent. In effect, the Republic of Cameroon which is one of several African countries resisting ratification of the Protocol to the African Court whose judgments are biding, did not wait for the adoption of the amendment to the statute of the court to initiate the parliamentary process authorizing the head of state to ratify the Protocol to the court.
With the inappropriate use of the ICC targeting exclusively Africa, leading to the indictment of four African Presidents, Moamar Kaddafi, Laurent Gbagbo, Uhuru Kenyatta and Al Bsshir, this development may seriously impact on the short and long terms relations between Africa and the ICC. There is an urgent need for the ICC to depoliticize its interventions in reaction to this development. The ICC should be allowed to fulfill its universal mandate freely as the spirit of Rome Treaty intended. If the current trend does not change or improve, the AU may engineer a African State a collective withdraw of African State Parties to the Rome Statute upon compliance with the mandatory one year notice to the ICC.
The exclusive targeting of African by the ICC prosecutions has aroused an unprecedented spirit of unity within AU member states hitherto non-existent for more than four decades. The spirit of unity manifested itself in the support that the AU provided in the deferral request of Kenya at the Security of Council. The renewed spirit of unity is evident steps taken by African leaders at the recent AU leaders’ Malabo Conference to assert African monetary and economic freedom from Western economies; an unfortunate fixture of Africa colonial legacy.
What must Africa expect?
Africa expects President Obama in this meeting to support African efforts in providing African solutions to African problems. President Obama should judge the ICC intervention in Africa from the perspective of the results obtained after more than a decade of inappropriate targeting against applicable peace initiatives undertaken by the Africa Union and other regional arrangements to bring peace to conflicts in Somalia, Kenya, Central African Republic, South Sudan and Darfur.
The Special Court for Sierra Leone that was established at about the same period with the ICC fulfilled its mandate alongside the Sierra Leone Truth and Reconciliation Commission. The Special Court unlike the ICC did not see itself as superior to the Truth and Reconciliation and did not take measures that were construed as subverting its mandate. The ICC interventions on the continent have hampered African mechanisms in place to bring justice to victims and peace to communities afflicted by war. The ICC has failed to appropriately apply the principle of complementarity to African Situations, in the process undermining the sovereignty of African states.
The President should fulfill the promises he made in Accra to Africa concerning Africa needing strong democratic institutions rather than strong men. He must strongly tell sit-tight African autocratic leaders who will be coming to table with the President the blood of their citizens on their hands to step down immediately. President Obama should emphasize the imperative need for the establishment and respect of term limits and the enactment of laws that provide the guarantees of freedom, equality before the law, economic prosperity and the pursuit of happiness. President Obama must caution African leaders against siphoning the wealth of their nations and stocking in Western Banks with the complicity of neo-colonial powers.
America should help Africa realize the values that made America strong and prosperous and not values that enslave and debase African values. President Obama must stand with Africa to stop further attempts by EU countries and the ICC selective targeting and attempts to use the process to recolonize Africa. The erosion of the sovereignty of African states breeds instability and fuels further conflicts which the ICC does not have the capacity to contain or resolve comprehensively. Impunity and criminality in Africa must be investigated and punished but not in a political process that serves neither the interests of victims, and Africa but the interests of remote controllers of the crimes from which they are the sole beneficiaries. The ongoing criminalization of Africans and the black race in politically teleguided investigations and prosecutions is a spot on the conscience of humanity and must be halted.
* Chief Charles A.Taku is the Publisher of Contextual Foundations of International Criminal Jurisprudence.
- Together with Co-counsel Beth Lyons, Chief Taku recently obtained an acquittal on Appeal for their client Major Francois-Xavier Nzuwonemeye, the former Commander of the Reconnaissance Battalion in the Former Rwandan Army in the so-called Military Two Trial at the UNICTR.
- Chief Taku was lead counsel at the Special Court for Sierra Leone for Major Morris Kallon in the RUF case and for Mr Samuel Kargbo in the Contempt proceedings.
- Chief Taku and Co-counsel Beth Lyons were counsel for Dr. David Matsanga at the ICC in Situation in the Republic of Kenya (Continuing investigations).
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