Frank W. Acheampong | African leaders and the myth of the ICC’s African bias

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18 September 2015 – Over the course of the past centuries truly horrific crimes against humanity have been committed during wartime. This has led to the realisation that unspeakable acts of brutality should not be ignored or forgiven simply because they are committed in the name of war. Pursuant to this ideal, various international bodies have been formed to help administer justice all around the world. One of these bodies is the International Criminal Court (ICC).

In July 1998 the international community adopted the Rome Statute (pdf) which established the ICC as a permanent court that would sit on the three things that, it was universally agreed, were in most urgent need of adjudication for humanity’s peaceful coexistence. These were genocide, crimes against humanity, and war crimes.

South Africa signed the Rome Treaty into domestic law with the Implementation of the Rome Statute of the International Criminal Court Act (pdf). However, ever since its formation the ICC has been dogged by a controversial issue: the perception that it exclusively “picks on” African nations. This issue reared its head most recently in South Africa on 15 June 2015 when Sudanese President Omar al-Bashir quietly left Waterkloof airport on the outskirts of Pretoria — in violation of a court order obtained by the Southern Africa Litigation Centre barring him from leaving the country so that he could be arrested to stand trial on an ICC indictment in respect of the long-running war in Darfur. The South African government received widespread condemnation for allowing him to depart. The fallout from this matter continues, with the High Court’s judgment currently under appeal.

In response to various criticisms, the South African government reiterated its commitment to its international obligations and the rule of law. However, it was quick to point out that it had promised the African Union (AU) that al-Bashir would be immune from arrest. This immunity had been a condition for al-Bashir’s attendance at the AU Summit being held in the country at the time. The South African government argued that al-Bashir was in the country as a guest of the AU and thus it would have breached its commitment to that organisation.

There was support for this stance from other quarters. The African National Congress (ANC) released a statement endorsing the decision on the basis that the ICC was exclusively targeting Africans. It argued that gross violations of human rights committed in non-signatory member states are going unpunished; the ICC is thus not fit for the purpose for which it was formed. Others argued that for South Africa to arrest al-Bashir “could have been seen as serving the perceived neoliberal colonialist enemies of modern Africa and its sovereignty”. To further complicate matters, South Africa was just recovering from attacks on foreigners and their homes and business interests in Durban. These attacks led to other African nations using the term ‘afrophobia’ to describe South Africa’s perceived dislike of other Africans (discussed here). South Africa’s decision to not arrest al-Bashir seemed to have little to do with moral or legal principles, and was based on the practical considerations of repairing damaged relations with its African neighbours. The government chose regional solidarity at the expense of upholding its obligations in respect of human rights.

South Africa’s stance towards the ICC in respect of the al-Bashir case is, sadly, not unique in Africa. The ICC is by and large dismissed by the AU as no more than a political tool utilized by Western powers to persecute African nations. Some African leaders call it a ‘neo-imperialist’ organisation; others consider it to be downright racist. So the perception that the ICC just ”picks on” African nations and their leaders has made a spectacular comeback. But is it necessarily true and what does it mean for human rights in the wider African context?

Though it is accurate that all of the ICC’s current cases involve Africans, five out of the nine ICC investigations were referred to the Court by the affected countries themselves. For example, in July 2012 the ICC was requested by the government of Mali to investigate human rights abuses in Northern Mali. This was because the Malians themselves felt that their government would be unable properly to investigate and prosecute these abuses —there was too much political interference, too little political will, and too few resources. Uganda is another nation which self-referred a matter to the ICC.

Another argument that finds a lot of traction amongst the ICC’s detractors is that those Western powers that constantly seek to have African leaders brought to justice are the same ones that refuse to allow their own citizens to face justice. A lot has been written about the failure to call to account former US President George W. Bush and former British Prime Minister Tony Blair for the war in Iraq which, over a decade later, has failed to yield a single trace of the weapons of mass destruction — but which has left Iraq a ruined shell of a country.

But the argument that, simply because one nation’s leaders are not being prosecuted for their crimes, so too should another nation’s leaders be immune, is fallacious. Human rights abuses in Africa should not go unchecked because crimes committed elsewhere continue to go unpunished. Is it any more acceptable to massacre entire ethnic groups in Africa because Bush and Blair escaped sanction for their deeds? No right-thinking member of society should accede to such dangerously flawed logic.

More worrying in the context of the African human rights movement are statements made by various South African government figures that suggest the country will abandon membership of the ICC. This goes a long way towards cementing the general perception of Africa as a place where there is no respect for democracy and where human rights go to die.

Africa has a long history of despots who have ridden roughshod over the basic human rights of their own people. Kamuzu Banda ruled Malawi with an iron fist soaked in the blood of his own citizens for the best part of three decades. The Central African Republic’s Jean-Bedel Bokassa assassinated all his opponents, was suspected of cannibalism, and gave himself a coronation which cost his nation’s entire GDP. Togo’s Gnassingbe Eyadema saw his tyranny over the Togolese last nearly four decades and spent half his nation’s income building four palaces for himself. Mobutu Sese Seko of Zaire (now the Democratic Republic of Congo) had a 32-year reign littered with assassinations, violence, and the systematic looting of state funds. Uganda’s Idi Amin oversaw the murder of an estimated 100,000 people from the Acholi and Lango tribes and extensive socio-economic disintegration. Endless as this list may seem it is no more than the smallest sample of an extensive list of despots who have had their day in the African sun.

The concern for the people of Africa is that these dictators have mostly been free to do as they wished without fear of reprisals, safe in the knowledge that other African leaders will not act against them. The AU itself was formed with the aim of unifying Africa and promoting the spread of human rights and democracy in order to rid the continent of dictatorships and tyranny — and thus far can claim to having achieved some success. The African Charter on Human and Peoples’ Rights established the African Commission on Human and Peoples’ Rights in 1987. The Commission’s stated aim is to interpret, promote and protect human rights and democracy on the continent. In order to be more effective in its mission, the Commission is supported by the African Court on Human and Peoples’ Rights, whose decisions are final and binding on states parties to the protocol. These institutions have done a lot in promoting human rights in Africa, though some problems remain.

But by far the most damaging problem is the united standpoint taken by the AU in respect of the ICC. By adopting an organisation-wide decision to refuse to hand over African leaders who abuse human rights, is Africa not failing its own people? By calling on African nations to withdraw from the Rome Statute, can it in good conscience be argued that Africa has served the people of Darfur and other victims of human rights abuses? What good, then, is the African Commission’s work, if those who fund it also undermine its mandate?

African leaders need to let go of the narrative that the ICC is picking on Africa. It does not stand up to scrutiny, serving as a mere cover for those in power to do as they please with impunity. As long as Africa lacks its own impartial and respected court that is unreservedly backed by all African nations and can adjudicate war crimes, crimes against humanity and genocide, the ICC is here to stay. African leaders might think the ICC is evil, but, until they change their attitudes towards human rights and democracy on this continent, it will be a necessary evil.

Frank Acheampong

About Frank Acheampong

Frank W. Acheampong read law at the National University of Lesotho, spent a brief period with the University of Swaziland, and finished his studies at the Nelson Mandela Metropolitan University in Port Elizabeth. Frank accumulated trial practice experience at the firm G. G. Nthethe & Co in Lesotho before moving to South Africa, where he worked at the Missionvale Law Clinic in Port Elizabeth. He then took up project management after acquiring an interest in the legalities and machinations of the construction industry.