By Macote Ambrozio for GlobalJusticeBlog.com.
Human beings have violated human rights for many years, especially in less developed countries. There are some government officials committing grave violations of human rights without any fear of being held accountable by their domestic justice systems in part because of the weakness of those systems or their unwillingness to prosecute and bring these criminals to justice. As these individuals are locally protected with impunity, the International Criminal Court (ICC) has become the means to hold them accountable for war crimes, crimes of aggression, genocide, and crimes against humanity. The purpose of this article is to examine the contribution of the ICC in protecting human rights in Africa with focus on challenges it faces and on its own inconsistency regarding cases. I will discuss some cases held by the court against former head of states, and the indictments against current heads of states and senior officials in Africa.
The International Criminal Court (ICC)
The ICC is a permanent international court established on 17 July 1998, in Roma, to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and crimes of aggression (1998, The ICC). The treaty is known as the Rome Statute. The Court’s Prosecutor may begin an investigation when: An ICC State Party refers a situation to the Court. The UN Security Council refers a situation to the Court. The Prosecutor may initiate an investigation on his/her own initiative.
For too many years, we have come to see that the purpose of sovereign immunity has been used by some government officials to avoid accountability of their crimes against humanity. However, it seems that sovereignty of some (weak) states no longer matter when human rights are at risk. The scope of immunity enjoyed by state officials has been reduced with the ICC’s international criminal jurisdiction.
The ICC made a historical move on Charles Taylor’s case. Mr. Charles Ghankay Taylor was President of Liberia from 1997 to 2003. On 29 March 2006, he was arrested in Nigeria and surrendered to the court. After the unsuccessful defense by Taylor’s lawyers, on April 26, 2012, he was convicted on all 11 counts regarding war crimes (2012, the ICC). His conviction was historical especially for crimes of inciting violence in a neighbor state. Inciting violence in neighbor states is a common accusation against many African leaders.
Despite the move of the ICC in international jurisdiction in prosecuting the most serious crimes committed against human rights by some political and military leaders, its jurisdiction is and will mostly depend on political will. The concept that the official status of the perpetrator does not constitute a defense to the ICC might sound possible; however, it is not really applicable in all countries or for all cases brought before the international criminal courts.
In July 2009, the ICC’s credibility took a hit when the African Union (AU) refused to cooperate with the court regarding the indictment of the Sudanese President, Omar al-Bashir. In its resolution, the AU stated that, “the AU member states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute relating to immunities, for the arrest and surrender of President al-Bashir.” (2009, Amnesty International) The unsuccessful action of the court against al-Bashir for genocide, war crimes, and crimes against humanity committed in Darfur, had served to challenge the court’s universal jurisdiction. In 2013, African leaders asked the United Nations Security Council to suspend the cases against Kenyan President, Uhuru Kenyatta (2013, the Guardian). Kenyatta and his Prime Minister William Ruto were indicted by the ICC for their alleged role in Kenya’s 2008 post-election violence that killed more than 1,000 people, as well as al-Bashir’s case. According to the AU, the ICC should not be allowed to bring charges against any acting head of state or government. The AU has engaged in obstructing the court’s work in the continent.
The Court’s Inconsistence
The American commentator, John Rosenthal said, “In the form in which it emerged in Rome, the ICC is, more humbly and realistically, just a project of the European Union.” Chris Patten, the former EU commissioner for external relations, admitted that, “we had worked for years to achieve its creation; we helped to fund organizations that themselves acted as advocates for the court” (2011, African Business). This fact shows clearly that the ICC has emerged as a de facto European court, funded and directed by Europe, and focused almost exclusively on the African continent, and thereby serving the West’s political and economic interests in Africa.
One may argue that civil wars occur more in Africa than in other continents; but gross and massive violations of international law such as crimes against humanity, crimes of aggression, and war crimes are not taking place only in Africa. There are so many crimes occurring in other continents of the international community’s concern, which should be subjects to the ICC investigation and justice; it seems the court is not willing to take on other continents. Currently, the court has opened cases against defendants in the following countries (all are Africans): Uganda, the Democratic Republic of the Congo, Kenya, Ivory Coast, the Central African Republic, Mali, Sudan, and Libya. The last two countries are non-State Parties to the ICC (2014, the ICC). However, the court is claiming universal jurisdiction over crimes in them. The court was created for bringing to justice leaders and governments that otherwise will never face justice in their domestic courts. How then, I wonder, does the ICC ignore the many that were killed in Iraq as a result of crimes of aggression? Does the World not deserve to know the actors of that atrocity? How many Israelis or Palestinians will be indicted for crimes in the ongoing Israeli-Palestine war? Does the world not deserve an honest international justice? Does any official element indicted in Uganda for violation of international humanitarian law in DRC by Ugandans? The ICC simply has not been consistent on its actions against impunity and has turned into a political instrument targeting Africa.
In a 2005 landmark case, the International Court of Justice (ICJ) adjudicated claims by Democratic Republic of Congo (DRC) that Uganda had invaded Congolese territory, plundering its natural resources and massacring its civilians. The ICJ held that both international humanitarian law and human rights obligations were binding on the Ugandan troops then occupying DRC, and that the Ugandan government was liable under the doctrine of responsibility for those acts (2005, ICJ).
Despite the ICJ’s detailed listing of serious war crimes, the ICC charged only Ugandan rebels, Thomas Lubanga and Joseph Kony for allegedly using child soldiers in DRC, and has not indicted any Ugandan officer (2005, the ICC). It argued that it did not charge Ugandan government officials to avoid confrontation with the US, the Ugandan ally. The ICC was created for bringing to justice leaders and governments that otherwise will never face justice in their domestic courts. The Ugandan case was the kind of case for which the court was created. If the court continues selecting cases, it may soon see its end, which will be a big loss for the victims of human rights abuses.
Without equality regarding the ICC’s actions against administrators of human rights abuses in all continents and countries, it is reasonable to label the court as an institution of imperialists that is engaging in a campaign of disgracing African Leaders, and the continent on behalf of the West’s political and economic interests instead of in the name of justice for which it was meant to be.
The ICC efforts in prosecuting the most serious crimes of international concern has contributed to the protection of human rights, and will contribute to a reduction of the rampant culture of impunity in Africa. Despite the great move on Taylor’s case, the ICC has a long way to go, especially when it comes to the officials currently in power. The doctrine of sovereign immunity provides that the officials of states, especially head of states, are generally immune from suit, which the AU uses to obstruct the court’s work. It is important to note that the ICC does not agree with the AU regarding sovereignty immunity. For the court, sovereignty does not matter when officials commit grave crimes against humanity.
There is great need for reducing injustice in Africa; however, it is unrealistic that the ICC, which has been an inconsistent and biased institution can carry out this task, given that it is losing its credibility as an institution of justice by turning into a political instrument of the West as it currently presents itself. It would be hard to separate the ICC from the charge of neocolonialism behavior, especially at the time the court itself has engaged in the practices that are not different from colonialism in its selection of cases to prosecute.
Ambrozio’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
African Business (2011, September 1), Europe, Masters Behind the ICC
Amnesty International (2009, July 6), African Union refuses to cooperate with Bashir arrest warrant
The ICC (1998, july 17), Rome Statute of The International Criminal Court
The ICC (2009 May, 1), Persecutor v Omar Hassan al-Bashir
The ICC (2005, April 22), The Persecutor v Joseph Kony, Vicent Otti, Okot Odhiambo, and Dominic Ongwen
The ICC (2014, October 25), Situations and Cases
The ICC (2011, September 2), Prosecutor v. Uhuru Muigai Kenyatta
The ICC (2011, September 1), Prosecutor v. William Samoei Ruto and Joseph Arap Sang
The ICJ (2005, December 19), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
The Human Wrights Watch (2005), The Lack of Accountability
The Guardian (2013, October 12), African Union says ICC should not Prosecute Sitting Leaders
The New York Times (2012, May 30). Ex-Liberian Leader Gets 50 Years for War Crimes.