Africa’s distrust of International Criminal Court part 3

ICC Headquarter

ICC Headquarter

Three of the African situations currently under investigation were self-referred while two were referred by the Security Council. The DRC, Benin and Tanzania voted in favour of the UNSC referral of the Darfur situation to the ICC; South Africa Gabon and Nigeria voted in favour of the UNSC referral of the Libya Situation to the ICC. Cote D’Ivoire accepted the jurisdiction of the ICC and undertook to cooperate with the ICC.

Kenya’s President Kibaki and Prime Minister Odinga pledged support to the Prosecutor’s independent decision to open an investigation into post-election crimes committed in Kenya. Most recently, ECOWAS actively supported Mali when it referred the violations of international law occurring on its territory since January 2012 to the ICC.

Do the facts support the view that the ICC is unduly focussed on African situations?
On the basis of these incontrovertible facts, the characterization of ICC’s activities in Africa as unsolicited intrusion in African affairs cannot stand. In view of the gratuitous acquiescence of African leaders to ICC’s intervention on their territories, the only situations in which the Court’s jurisdiction is truly controversial are those referred to the court by the Security Council. Thus, logically, the discourse should be refocused on the role of the UNSC in African Affairs and not the ICC.

But are there good reasons for the ICC to have opened investigations only in Africa? First, many situations cited by critics as having occurred or occurring in more influential countries may simply not fall within the ICC’s jurisdiction. As earlier noted, the court’s mandate is limited by the Rome Statute to crimes committed after July 2002 when the Statute came into force. Furthermore, its subject matter jurisdiction is narrowed down to genocide, war crimes and crimes against humanity committed by a national of, or on the territory of, a State Party or a State which has declared its acceptance of jurisdiction by the Court, or where a situation has been referred by the UNSC. All of these constraints must be thoroughly considered before the court can assert its jurisdiction in any given country.

While atrocities recorded in countries such as Isreal, Georgia and Palestine may sometimes appear horrendous; they must, nevertheless, meet the minimum threshold required to elevate the crimes committed in these countries to the international crimes covered by the ICC Statute. It is safe to say that when compared, the situations under investigation or prosecution in Africa are distinguished by the seriousness of the crimes perpetrated there; for example, there were 2.5 million victims in Darfur, 2 million in the DRC, and 1.3 million in Uganda. There is also no doubt that many of the states in Africa are, for political and diverse reasons, unable or unwilling to investigate or prosecute the crimes committed during the continent’s recurrent crises.

Whatever may be the outcome of this debate, an honest assessment of the cases currently being investigated or prosecuted by the ICC indicates that in none of these cases were the persons under investigation alleged to have been maliciously framed by neo-colonialists. Rather, the crimes committed in several African States belong to the most egregious genre deserving universal condemnation. Instances of such crimes committed in the context of widespread or systematic attacks abound in many African internal armed conflicts. Given the extraordinary cruelty of these crimes it is not difficult for them to meet the minimum threshold of international criminal law which requires that crimes against humanity be committed in the context of “widespread or systematic attack”. International criminal law holds an attack to be “widespread” if it is massive, frequent, large scale, or carried out collectively with considerable seriousness and directed against a multiplicity of victims. Although the scale, number of victims, and multiplicity of acts could occur throughout a territory or region, the element of “widespread” does not depend on establishing any requisite geographic range. On the other hand, an attack is described as “systematic” if it is organized and follows a regular pattern on the basis of a common policy involving substantial public or private resources.

The crimes committed in all eight conflicts under the ICC’s radar, without question, fall within the range of crimes proscribed by the Rome Statute. Apart from meeting the ICC threshold, crimes committed in parts of Africa are peerless in terms of viciousness and scope. One need not look too far to find mind bending examples. Initially, the Liberian civil war promised freedom from over a decade of brutal despotic rule but it turned out to be an unmitigated tragedy. The war, arguably one of Africa’s bloodiest, claimed the lives of over two hundred thousand people and displaced over a million others. This sad story has been replicated in many conflicts dotting the African landscape.

Instead of the disquieting clamour for the withdrawal of African States from the ICC, it is respectfully argued that the impoverished people of Africa stand to gain a lot more from a strong and effective ICC than a climate of impunity preferred by African leaders. Support for this point of view is premised on the fact that Africa is home to many of the acts proscribed by the Rome Statute. A cursory review of some relevant provisions of the ICC Statute is edifying:

Under the Rome Statute, deportation or forcible population transfer conducted as part of a widespread or systematic attack against any civilian population, is a crime against humanity. The ICC statute by this provision expressly protects the rights of minorities or immigrants from extreme forms of state sponsored xenophobia which may occur in the absence of a strong international criminal justice system.

All too often in Africa, children are frequently the most vulnerable targets of violent crimes in times of conflict. African children, no doubt, have benefited and will continue to enjoy the protection of the ICC Statute by its prohibition of the conscription or enlistment of child soldiers under the age of 15, which it classifies as crimes against humanity. Other crimes often committed against children, such as rape, enforced prostitution are also considered crimes against humanity and war crimes. For example, if it was not for the existence of the ICC, Thomas Lubanga’s trial and conviction for conscription and enlistment of children as soldiers might not have happened on account of DRC Congo’s broken justice system.

To a significant extent, the Rome Statute of ICC will also encourage Civil Liberties to flourish in Africa. Under the Statute, when committed as part of a widespread or systematic attack against a civilian population, with knowledge of the attack, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law is considered a crime against humanity. In addition, the Rome statute protects the religious faith or persuasion of the individual. With the requisite intent established, persecution of a religious group when committed as part of a widespread or systematic attack against a civilian population is a crime against humanity under the Rome Statute.

Like children, in conflict situations, women are often disproportionately the victims of rape, torture, enforced sexual slavery, forced pregnancies, enforced sterilizations and other forms of sexual violence. These acts are considered war crimes under the Rome Statute, and when committed as part of a widespread or systematic attack, they are considered crimes against humanity even in peace time.

Deliberate starvation of civilians is prohibited under the Rome Statute of the International Criminal Court (ICC). The Rome Statute, which entered into force in 2002 for state parties, criminalizes deliberate famine acts by states and state-like actors under three of the four types of crimes within its jurisdiction: the crime of genocide, crimes against humanity, and war crimes. Therefore, under the Rome Statute, any widespread or systematic attempt calculated to bring about the destruction of part of a civilian population by attacking access to food, the means of food production, or medicine, with the required mens rea, is a crime which the ICC may prosecute.

With the adoption of the Rome Statute in 1998 and its entry into force on 1 July 2002, the first permanent international criminal court, the ICC, came into existence with a bold mandate to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community and thus contribute to the prevention of such crimes.

However, despite the optimism of the international community in the wake of the ICC’s creation, sceptics on the African continent have been vociferous in their claim that the court is a neo-colonialist institution set up to exert subtle control over the continent and its leaders. According to this charge, the court has preoccupied itself with Africa and failed to investigate equally severe conflicts in other parts of the world.

This point of view has been shown to be unfounded or at best wildly exaggerated. Available evidence clearly indicates that the basis of their antagonism towards the court is faulty and of no moment. An informed assessment of all relevant factors in the equation demonstrates, unalterably, that African state parties to the ICC and its mass of pulverised people stand to derive significant benefits from the new international criminal justice system established by the Rome Statute.

• Jegede, a former Prosecutor at the International Criminal Tribunal for Rwanda, currently practises law in Lagos.

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