South Africa’s ’s notice of its intention to withdraw from the International Criminal Court is a move that resonates among some African countries. Already, its formal letter to this effect is on the table of the United Nations Secretary-General, just as it will soon submit a bill to the parliament to formalise the exit. This is an ugly trend that should be checked.
The ICC is an organ of the UN set up by the Rome Statute. The 124-member organisation based in the Hague, Netherlands, acts as a “court of last resort,” which adjudicates on crimes that border on genocide, crimes against humanity, crimes on aggression and war crimes.
However, three other African countries – Burundi, Kenya and the Gambia – have followed hot on the heels of South Africa to do the same. But Pretoria appears to be the only one to have justified its action, although the grounds are tenuous. According to South Africa’s Justice Department, the country was compelled to take the action because an aspect of the Rome Statute that created the ICC “compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law, who are wanted by the ICC for genocide….”
Regrettably, the visit of President Omar al-Bashir of Sudan to South Africa in 2015 for a meeting of the African Union and the ICC’s demand for his arrest and handover, for his alleged war crimes in the conflict in Darfur region in western Sudan, and refusal of his host to acquiesce are the genesis of this dissonance.
Kenya’s action, no doubt, is a consequence of the ICC’s trial of its President Uhuru Kenyatta and his deputy, William Ruto, and four others for their alleged role in the 2007 post-election violence that assumed an ethnic dimension. About 1,200 people were killed. Kenyatta is the only head of government that brushed aside his immunity and appeared for trial. But the ICC charges against him were dropped for what its Chief Prosecutor, Fatou Bensouda, claimed was the government’s refusal to cooperate with investigators.
President Pierre Nkurunziza’s anticipation of possible charges against him following the manipulation of the country’s constitution for a third term in office, the intimidation, harassment and killings that attended it, might explain Burundi’s withdrawal. The Gambia is not new to such theatrics. It had in 2013 pulled out from the Commonwealth. Its president, Yahya Jammeh, sees the ICC as a neo-colonial political instrument established to “disgrace” African leaders.
But nothing could be further from the truth. That Mathieui Chui from Congo was acquitted by the same court, underscores the fact that it is not out to hound anybody. The court’s global coverage is evident in the 2015 preliminary investigations into the 2014 Gaza conflict based on a report the Palestinian authorities submitted against Israel.
However, the truth cannot be denied that most of those being investigated or convicted are from Africa. And the reason for this is too obvious: abuse of power by rulers has left in its wake the worst kind of human rights violations, suffering and senseless killings on the continent. But the ICC has been able to bring some of these depraved leaders to account, which the justice-delivery systems in countries where the crimes were committed were incapable of handling. Charles Taylor’s trial and conviction for 50 years for the war crimes he committed with his involvement in Sierra Leone’s civil war – 1991 to 2002 – vividly put the issue in bold relief. He was forced to vacate office as president of Liberia in 2003, went into exile in Nigeria, from where he was extradited to the Hague.
Before him, a similar fate had befallen Thomas Dyilo and Germain Katanga – leaders of a militia group in the Democratic Republic of Congo – serving 14 and 12 years jail terms respectively. The late Libyan leader, Muammar Gaddafi, had been indicted before his gruesome death, despite his refusal to submit himself to the court.
Currently, Laurent Gbagbo, a former Cote d’Ivoire president is being tried by the court. The 3,000 people killed in the 2010 post-election violence due to his intransigence and failure to concede defeat to Alassane Quattara – the current president – is an ugly chapter in power struggle in Africa that cannot be effectively closed in that country if Gbagbo does not face justice.
Our common humanity and dignity must be protected. Across the continent, most rulers have grossly failed to prove they can be trusted with power. The late Idi Amin (Uganda); Sani Abacha (Nigeria); Mobutu Sese Seko (Zaire); and Jean-Bedel Bokassa (Central African Republic) were indisputable archtypes. Therefore, Africa’s demented leaders need to be made to account by whatever legitimate means, whether from within or outside the continent.
Ironically, the AU leaders crying foul about ICC indirectly confirmed its relevance with their trail blazing approval of the setting up of a special court to try Hissene Habre in Senegal for war crimes. Under him as Chadian dictator, about 30,000 people were allegedly killed. One female victim of his misrule, Khadidja Zidane, who testified against him, told The Guardian of London, “… As I told them in Dakar, Hissene Habre did unspeakable things to me. He would torture me before he raped me.” This is a searing experience, a wound, which only the soothing balm of justice can heal.
Since al-Bashir’s scare in South Africa, he and Yoweri Museveni of Uganda have allegedly been lobbying other African countries to withdraw from the ICC. Such calls should be ignored. Nigeria should exert its influence by engaging South Africa and others to reverse their decision. No doubt, an arrest of the Sudanese president while at an AU summit would have been a clear breach of the 1961 Vienna Convention on Diplomatic Relations. Its conflict with the Rome Statute should be resolved by the UN. This is what South Africa should seek; and not to dump the ICC.
This aside, the signal from the African quartets to exit from the ICC is ominous. We urge the opposition and civil society in these countries to doggedly resist the plot. It is a threat to human rights and good governance.
