Khartoum Conference strengthened resistance to the ICC

Last month, I participated in a one-day Symposium about Africa and the International Criminal Court (ICC) on lessons learned.

This was an historical gathering of the first conference of African States Chief Justices and Presidents of the Supreme Courts, which was held at Khartoum, Sudan, on April 2-4, 2017. 

This is rated one of the most significant, influential conferences in the continent this year. It was a very relevant event at which to review the ICC-Africa relation in a country that is the home of the first African civilisation.

It was crucial to review how the Court navigates international politics and power play. This article summarises the presentations on lessons learned made at the Conference by Professor Alexander from Russia, Dr David Hoile from the United Kingdom, Professor Abdurrahman from University of Khartoum and NGO voices like Dr Matsanga.

CRIMES OF AGGRESSION

It was made clear that when reviewing the ICC, international politics cannot be easily separated from the reality that the ICC operates in. Therefore, the court reflects the western and powerful countries interests as they continue to shape and control it. 

It should be made clear at the outset that the real advantage of the West is not in its economic muscle and technological might but rather in the power to define things. Therefore the power to define ICC court activity means they can steer the court towards investigating certain countries, leaders, and region, while cushioning some.

Various papers demonstrated how global politics have worked to undermine the usefulness of ICC as an independent and impartial temple of justice. Consider that since the ICC was established in 2002 as the first permanent international criminal court, 22 cases in nine situations have been brought before it. 

The cases before the ICC generally relate to situations in Africa and focus on African nationals.  A critical lesson learnt by African countries on the ICC could be that the international criminal court operates like a spider’s web, as observed by Anarcharsis: holding the weak and delicate, but being torn to pieces by the rich and powerful.

Firstly, since the power to define things remains with Western countries, powerful countries, for example, made sure that the use of chemical weapons and crimes of aggression perpetrated by the West were not within its jurisdiction.

A good example of how Europeans succeeded in weaving their superiority and protecting their interest into the Rome Statute was the rejection of prosecution of nuclear weapons under the ambit of Article 8. India’s proposal to add under war crimes the use of nuclear, chemical, and biological use was rejected.

DOMINANT COUNTRIES

The proposed prosecution of the use of WMD by the Court, led by India and Sudan on behalf of the Arab group, was opposed by a group led by the Western countries and was not allowed even to feature in the debate during negotiation of the Rome statute.

Secondly, the Rome Statute reached its lowest point, when it comes to the crime of aggression. Article 5.1 simply provides that the crime was put into the Statute to be defined later through an amendment process. However to put the record straight, the crime of aggression was never meant to be prosecuted.

These text are devoid of any legal force because powerful countries have made sure the ICC cannot prosecute the crime. A real source of confusion is that even when states agreed to define the crime of aggression in Kampala, some conditions were included making the provision impotent, for example, the requirement that States Parties must accept the Court’s jurisdiction through an additional decision to be taken on or after 1 January 2017 by a two-thirds majority.

Meanwhile powerful countries continue to violate international law by aggressively using their military or political power against the United Nations Charter to attack smaller countries.

Thirdly, control of the court by a political body like the Security Council has become the death sentence of the ICC’s independence. The court is directed on where to investigate, which goes against the whole idea of its independence. The spirit of the Rome Statue amongst delegates was to build a regime founded on the customary law on States’ consent and not on the Security Council or the power of dominant countries.

The Security Council, formed of non-Rome statute members yet with veto powers, includes the USA, Russia and China. Africa countries have realised the inequality in selective referral and refusal to defer cases from Africa. The reality is that the structures of the United Nations remains those of historical San Francisco in 1945, and only accommodate the Allied forces that won the Second World War.

However the Rome Statute was able to define situations as crimes against humanity or genocide, which leader is a war criminal, which international situation must be investigated by the ICC, which leader should be indicted, what situation is impunity and when to seek peace and reconciliation or stop peace process for the sake of prosecutions.  To that extent they have remained both the referees and players.

LACK OF ACCOUNTABILITY

While Africa is a participant in the ICC, in most cases it is a target of the International Criminal Court and the current reality might not be what Africa countries hoped for: the deal has failed. Professor William Schabas questioned:

Why prosecute post-election violence in Kenya or recruitment of child soldiers in the Democratic Republic of the Congo, but not murder and torture of prisoners in Iraq or illegal settlements in the West Bank? Why prosecute a President of non-ICC member like Sudan as the USA keep their nationals out of ICC court threaten use of force if their nationals are taken to the ICC?

Fourthly, other control of ICC can further be seen on the attempts of powerful countries and civil societies like the coalition of ICC Civil societies attempt to “define  out of existence” and ignore those organisations like the African Union that have questioned the selectivity and lack of accountability of the court. They have simply been defined as supporting sovereignty over impunity in African states. 

Those African countries that have refused to conform to Western definitions on who is a war criminal. For example, South Africa was reported at the Assembly of State Parties for not arresting Al-Bashir during his visit to South Africa. Notwithstanding that the Rome Statute provides that no country should be required to violate its international obligation, in this case the customary international law on heads of state immunity and inviolability, coupled with the clear stand of the Africa Union that members should not comply with the court request to arrest Al Bashir.

Fifthly, is the advantage of western countries to define the DNA of the Rome Statute. The DNA of the court is in its preamble as a people united to end impunity in the world.  Throughout history, non-European cultures have been portrayed as savages who operate with impunity.

Therefore elements like universal jurisdiction were initiated as a God-given right to Europeans to punish and even colonise. Natural law was conceived as a definition and prescription authorising the West to colonise and enslave non-European as a means of ending impunity.

'FLAMES FANNED BY WIND'

Today the European view of African states as inferior and lawless remains the template of ICC world outlook. If one relies on this principal on the concept of impunity it is superfluous in determining the work of the court, yet it has lingering effect in projecting Africa countries as full of impunity.

Let us not forget that the Rome Statute had wide support among African countries which considered themselves “like-minded” with other countries across the world who moved the spirit of Rome to the reality of an international treaty.

However in reviewing the lessons on ICC , African countries, through the Africa Union, appear to be no longer like-minded with other states. Today the famous Rome spirit that led to consensus is gone. Most African countries have resorted to fighting for their dignity, equality and sovereignty.

Finally, it was in Africa’s interest to find out what lessons countries have learnt in this ICC period.  The Khartoum Conference laid bare the factors pulling Africa states from the ICC, as some countries are either contemplating withdrawal or already withdrawing from the Rome Statute.

In conclusion, as Steve Biko noted, one can blow out a candle but you can’t blow out a fire, because the flames fanned by wind blow higher. It appears that through the effort of the African Union, African countries will eventually move out of what the AU termed the “Ocampo Justice.”

In Khartoum the flame continued to burn, as earlier pushed by countries like Kenya. Africans have refused to be used as an experimental laboratory for the powerful western hegemonies. The Rome spirit is replaced by the Khartoum spirit.

 Dr. Duncan Ojwang’ is the Dean of the Africa Nazarene School of Law.