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“The ICC and Africa: Worrying Decisions to Withdraw”

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Evelyn A. Ankumah; Executive Director of Africa Legal Aid (AFLA).

More than ten years after the establishment of the International Criminal Court, Africa continues to dominate the work of and debates on this court. We cannot deny that the relationship between Africa and the Court has been troublesome. The recent decisions of Burundi, South Africa, and Gambia to deposit instruments of withdrawal to the UN Secretary General demonstrate that the controversies are far from over.

As a fervent advocate of international criminal justice, I am of course deeply disappointed about the decisions to withdraw. I will not deny that I am worried about a possible spill over effect. Yet, there is another perspective. We may regard the decisions to withdraw positively. States do not decide to withdraw from a lame duck court that has no practical value. If the ICC were a powerless court, or if Burundi, South Africa and Gambia had nothing to fear from the ICC, there would be no need for them to step out.

Burundi, or at least its political leaders, may fear ICC investigations and trial. It is due to the ‘threat’ of what ICC examinations might reveal, that the decision to withdraw was taken. The government of South Africa appears to support impunity for heads of state. Yet, the legal and political pressure to arrest Sudanese President Omar Al-Bashir was notably high and the government had to find innovative, secretive ways to let him escape. Today we heard that Gambia is also withdrawing. Well, let’s just say that its government is not praised for its human rights record. I recall the case of about 50 West Africans including 44 Ghanaians who were summarily executed in Gambia. On 10th December 2006, the Commonwealth Human Rights Initiative Africa office held a press conference on the extra-judicial killing and or disappearance of 44 Ghanaians in the Gambia. The Ghanaian public reacted with shock to the news.

The politically bold decisions to withdraw from the Rome Statute demonstrate and confirm that the ICC has evolved as a court that truly matters. While four convictions in more than 10 years may not seem a lot, it is plain that the ICC is not a court that just barks. It is a court that may actually bite.

The entire criminal justice system set in place by the Rome Statute still needs improvement. Among other things, it needs improvement in the area of state cooperation. But there is no doubt that the impact of the ICC is increasingly felt. Progress has been made. I realize it sounds somewhat cynical, but the mere fact that some states wish to step out is a sign of the ICC’s success. It demonstrates that the Court is living up to its mandate.

Of course, the withdrawal decisions are worrisome. I sincerely hope that the South African Constitutional Court will conclude that the decision to withdraw, without first securing a resolution of Parliament, indeed is unconstitutional. It seems odd to me that a decision as fundamental as withdrawal from the ICC can be adopted without the consent of the representatives of the South African people in Parliament. The side stepping of Parliament is in conflict with the country’s post-Apartheid tradition of advocating democracy, fundamental rights and justice.

The Burundi situation worries me more. Under Article 127 of the Rome Statute, withdrawal does not affect the powers of the Court to deal with events taking place during the time that Burundi was and still is a state party. Yet, the situation in the country seems to be quite explosive. No one knows what will happen, but the deterrent effect of ICC investigations and perhaps trials, would, in the forthcoming years, seem to be more relevant than ever before.

Looking beyond the situations of Burundi, South Africa and Gambia, I am worried about the political nature of discussions on the ICC and the populist tones of these debates. A significant number of African states have committed themselves to the Rome Statute and thus to contributing to international criminal justice. They did so in the awareness that a significant portion of international crimes might be committed on African soil, and perhaps more than elsewhere. African states that ratified the Rome Statute thus could have expected that a high percentage of the ICC examinations, investigations and trials would involve Africa.

I understand the frustration that so far only African cases have reached the trial stage, but I fail to understand why for that reason the ICC would be ‘anti-Africa’. It simply is not. The ICC does for Africa what it was set in place do: work on criminal justice for the benefit of victims and potential victims. Yes, there are points that can be improved and are being improved. What I can say, as one who has observed the Court from its inception is that accused persons do in principle get a fair trial. The ICC does contribute to justice.

There may be persons who know of themselves that they are potential ICC suspects, and that their past acts can be investigated. It is the politicians and those related or associated to them that express critique that the ICC is targeting Africans. They insist on impunity guarantees. They insist on African solutions to African problems, but there are no signs that they are actually willing to work on an effective African criminal justice system. While recognizing that the AU’s Malabo Protocol breaks new ground by expanding the list of crimes subject to international criminal justice, it regrettably undermines this breakthrough by granting immunity to political leaders and their agents.

Core problem is that far too many African states have not fully matured as genuine democracies where no one is free from accountability. What we see in too many African countries is that they are ruled or controlled, de jure or de facto, by a small group of people who simply oppose accountability.

It was precisely to avoid this from happening that the ICC was set in place and it is that complementary court that so many African states have committed themselves to. It is of the utmost importance that the African masses are involved in debates on how to best structure African societies and to set in place democratic mechanisms in which no one is above the law. The ICC reflects that very notion that no one, no political leader, is free from accountability.

I know, some will say: what about leaders from powerful and influential states, or any other non-African who might be suspected for being involved in international crimes? If they cannot be investigated, why only investigate African leaders? I believe however that that response is flawed. In essence such response means that if we cannot bring one person before the ICC, then no one should be brought before the Court. Such reasoning implies that if one person cannot be held criminally accountable, no one should. It means giving up international criminal justice.

International criminal justice, and thus the ICC, is crucial for promoting justice in Africa and for Africans. It is an essential tool to promote accountability in Africa, and it may contribute to building democratic governmental structures in African states. Debates on the ICC should therefore involve all members of our societies, and not just the ones occupying political positions. The international community, including the ICC, can contribute to peace and justice in Africa, but ultimately the desired changes needed in African systems of governance must be effected by Africans themselves.

To all those who so easily express the critique that the ICC is targeting Africa, I would say this: the ICC is not the problem, and please recognise the contribution it makes to our societies. The problem concerns structural flaws in our own African systems of government.

Burundi, South Africa and Gambia must reconsider their decisions for humanity’s sake.

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