The ICC versus the AU: a clash between politics and the law?

Westen K Shilaho

Sunday Independent, 5 March 2017.

The African Union was reported to have adopted a ‘strategy of mass withdrawal’ from the ICC during its recent summit in Addis Ababa in 2017. Although the resolution was non-binding, its significance was political. South Africa, Burundi and Gambia announced their intention to withdraw from the Rome Statute Treaty last year, though the new Gambian government has since reversed its position. Nigeria and Senegal reportedly dissented, and expressed confidence in the court. Nigeria, one of Africa’s anchor states, is part of a number of AU member states in support of the ICC that argue for reform from within. In the wake of the summit, Zambia also seemed to distance itself from the resolution. Its president, Edgar Lungu, stated that he would ‘consult’ Zambians on the withdrawal issue, arguing that he had no powers unilaterally to withdraw Zambia from the court. Mozambique was unequivocal and reaffirmed its ICC membership.

The AU Summit held in Johannesburg in June 2015 was the most dramatic with regard to the protracted row between the ICC and the AU. The presence of Sudanese leader, Omar Al-Bashir, threw the summit into a tailspin after a Johannesburg-based civil society organisation, the Southern African Litigation Centre, petitioned the court to order South Africa to arrest and hand over al-Bashir to the ICC in fulfilment of its obligations as a signatory to the Rome Statute. This forced al-Bashir to flee the conference venue and hurriedly fly back home. South Africa’s High Court and Court of Appeal noted that the government should have arrested al-Bashir.

The al-Bashir saga compelled South Africa to take the unprecedented decision to withdraw from the ICC. Tshwane argued that its obligations to the ICC was impeding its conflict resolution efforts in Africa, since its mediation role across the continent and its obligations to the court were irreconcilable. In yet another legal setback, the country’s High Court ruled this month that the government’s decision to withdraw from the ICC was ‘unconstitutional and invalid’ because the executive had by-passed parliament.  Although Burundi has not changed its decision to withdraw from the ICC, president Pierre Nkurunziza, is embattled and ruling over a divided country that could easily relapse into civil war. In all the three countries- South Africa, Burundi, and Gambia-the decision to withdraw from the ICC was an indictment on the credibility of the court as much as on that of the rulers in question.

The AU has consistently advocated for the reform of the ICC, and reiterated the call during its recent summit in Addis Ababa, while urging member states to strengthen their judiciaries. Functioning judiciaries and an effective regional court would obviate the need for the ICC to intervene in African conflicts. Owing largely to executive interference, Africa’s judiciaries are often differential in dealing with human rights violators. This has meant that the ICC has often stepped in as a court of last resort in accordance with the complementarity principle. The process of expanding the AU’s African Court of Justice and Human Rights to have jurisdiction over crimes under the Rome Statute is laudable, but is yet to be finalised. Even if its jurisdiction were to be expanded, African presidents would enjoy immunity before the court, in accordance with the Malabo protocol adopted during the 2014 AU summit.

The ICC has to navigate a tenuous line between politics and the law since it operates in a political environment. Beginning with the Nuremberg (1945-1946) and Tokyo trials (1946-1948), international criminal justice is controversial because of its lopsidedness. The concern over ‘victor’s justice’ has been a historic leitmotif in international criminal law. Leaders and citizens of powerful nations and their allies tend to operate above the law: a luxury that their counterparts in Africa and other developing countries and the vanquished can ill afford. It is not possible to depoliticise the ICC, because within its jurisdiction are crimes whose masterminds are political actors. The court maintains that it is a legal institution and so is apolitical. This assertion does not stand up to proper scrutiny. Evidence-gathering and implementation of arrest warrants require the cooperation of governments. How many people to indict and when to indict in a given conflict situation are also fundamentally political decisions. The UN Security Council has influence over the operations of the ICC, yet three of its five veto-wielding permanent members- China, Russia, and the United States (US)- have yet to ratify the Rome Statute. As such, the ICC is both a judicial as well as a political institution.

The suspicion that some African rulers harbour against the ICC stems from layers of humiliation that Africans have endured over centuries. This legacy elicits a siege mentality and makes African rulers fetishise sovereignty. Slavery, colonialism, apartheid, and even neo-colonialism evoke suspicion in Africa against the ICC and other similar Western-dominated institutions. Some African rulers and their supporters perceive the court to be an adjunct of imperialists out to humiliate ‘Africans’. It does not help matters that all the ten countries with cases before the court, except for Georgia, are African. The fact that five of these situations are self-referral has not debunked the narrative that the ICC focuses almost entirely on atrocities in Africa while ignoring atrocities elsewhere.

It is anomalous for the US, Russia, and China to have a say in the operations of the ICC but not to recognise the court, thus denying it universality and legitimacy. However, the notion of absolute sovereignty is both ahistorical and chimerical. Nations have traditionally interfered in each other’s affairs. Moreover, it is counter-intuitive to accede to international norms and at the same time treat sovereignty as sacrosanct. Ultimately, justice and peace reinforce each other, while impunity is a threat to the rule of law and stability.