Tuesday, December 13, 2011

One African President Speaks Truth to Power on the ICC

By Max du Plessis

Monday 12 December, a cold and cloudless day
in New York, saw the start of the 10th session of the Assembly of States Parties
(ASP) to the International Criminal Court (ICC).

Here over the next few days the ASP will
select six new judges, decide on the ICC’s budget for 2012, and formalise the
consensus candidate for the next Chief Prosecutor of the ICC. About the
Prosecutor: already early in the morning the delegates are pumping hands and
slapping backs, congratulating Fatou Bensouda – the current Deputy Prosecutor of
the ICC – for being elevated to take over the wheel from her boss, Luis Moreno
Ocampo. Ocampo, who has focused his term on African prosecutions,
steps down in mid 2012 after eight years at the helm.

It is a good day for Africa when Bensouda,
an erudite and warm woman who was previously Justice Minister and Attorney
General in The Gambia, becomes the world’s most powerful prosecutor.
the fact that all the ICC’s cases are in
Africa, together with fundamental concerns about the UN Security Council’s role
in the work of the court, has resulted in criticisms that the ICC is a
neo-colonialist institution that unfairly targets the continent. Relations
between the court and some states, as well as the African Union, are now
strained. Of most concern is that several African governments, including states
parties to the Rome Statute, have publicly refused to cooperate with the court
in the arrest and surrender of suspects.

Ocampo has borne the brunt of Africa’s
dissatisfaction with the court. As a result, some Africans have high
expectations that Bensouda’s ascension will deliver a prosecutor less inclined
to keep the ICC’s focus exclusively on Africa. Reducing resistance to the court
from African governments is a complex and politically charged task, but one that
will be an immediate and continuing priority for the new prosecutor.

The immediacy of that task, let alone its
complexity, has been accentuated by developments in just the past

The most recent turn was a further African
affair for the court: involving the surrender and transfer to the ICC of former
Ivorian President Laurent Gbagbo on 29 November. Gbagbo was transferred to The
Hague by Ivorian authorities pursuant to an ICC arrest warrant issued under seal
six days earlier on 23 November 2011. His transfer to The Hague comes almost a
year to the day after Côte d’Ivoire`s disputed presidential election that
resulted in six months of violence. Gbagbo is charged with bearing
individual criminal responsibility, as indirect co-perpetrator, for crimes
against humanity allegedly committed in his own country.

Gbagbo is the first former head of state to
be transferred to the ICC. He joins a list of senior African
statesmen sought by the Court for international crimes, including arrest
warrants for Sudanese President Omar Hassan al-Bashir and Libyan leader Colonel
Muammar Gaddafi. Al-Bashir continues to evade justice, and Gaddafi met his end
injudiciously in Libya in October 2011.

Gbagbo’s destiny with The Hague occurs
alongside other notable developments in the past month. Most significantly is
the decision by a Kenyan High Court judge ordering Kenyan authorities to arrest
President al-Bashir. That order comes after Kenyan authorities
allowed al-Bashir safe passage through Kenya in violation of Kenya’s
international obligations to cooperate with the ICC in securing his arrest; an
obligation which Kenya’s Parliament has domesticated in its International Crimes
Act of 2008. The case was brought by Kenyan civil society, and the
order is directed at the Minister for Internal Security and the Attorney
General, who were the Kenyan government respondents in the

In the diplomatic equivalent of a blowback,
and proving the increasing relevance of international criminal law (and its
potential political ramifications), the Sudanese government ordered the
immediate expulsion of Kenya’s ambassador to Sudan. In addition the Sudanese
government recalled its representative in Kenya. This backlash against the
ruling included Malawi’s President, Bingu wa Mutharika, reportedly condemning
the ruling while addressing a meeting of the East African
Community. Kenya’s leading newspaper carried a response from
Kenya’s foreign minister, Moses Wetangula, to the effect that this was “a
judgment in error” that “failed to balance the delicate international
relations.” He has said Kenya will find it difficult to obey the court

The African Union (AU) also weighed in. The
AU Commission issued a statement on 5 December saying that its chairperson “is
closely monitoring the developments in the relations between the Republic of the
Sudan and the Republic of Kenya”. The AU’s statement comes on the back of
troubling decisions by the AU in which it called on its member states not to
cooperate with the ICC in arresting African leaders, including, most recently,
in respect of Colonel Gadaffi (and that despite the blood-letting he had
personally unleashed in Libya, and despite the fact that the UN Security Council
unanimously with South Africa’s positive vote referred Gadaffi’s crimes to the
ICC for investigation). In its 5 December statement, the AU
trotted out that it had “no doubt” that “the entire membership of the AU will
continue to comply scrupulously with the African common position on the respect
of the immunity of the President of the Republic of the Sudan, Mr. Omar Hassan
Al Bashir, as well as that of all the other incumbent African Heads of

Attempting to capture (in both senses of the word) a common African
position is not as easy as the AU would have it. That is made
clear by what Botswana’s President Seretse Khama Ian Khama said in his keynote
address to the ASP plenary this morning in New York. President
Khama is not blind to what he described as “the perception that the ICC unfairly
targets African countries”. But, refreshingly and honestly, he is
also not blind to the irony, as he put it, “that these crimes are perpetrated,
in most cases, by the very leaders who are supposed to protect the
people”. Khama also regretted the AU’s decision in June 2011 “not
to cooperate with the ICC over the indictments and arrest warrants issued
against some leaders”, which in his view “is a serious setback in the battle
against impunity in Africa” and which “undermines efforts to confront war crimes
and crimes against humanity which are committed by some leaders on the

It must therefore be asked: what common
African position is the AU’s Commission dreaming of? If there is a
dream worth focusing on, it might be one that President Khama set out so
forcefully in a UN building on the East River: that is, that we all, including
African leaders and the AU, “need to have the political will and the moral
courage to hold accountable, without fear or favour, anyone in authority –
including a sitting Head of State – when he or she is suspected of having
committed crimes against innocent people”.

The world now has a new chief prosecutor of
the ICC, and she is African. The world has a functioning and
permanent International Criminal Court, and its first cases are in response to
appalling African atrocities. And the world is looking on as
powerful African elites scramble to undermine the work of that
Court. The Court is not beyond reproach. It can and
must do its work faster; it can and must open cases outside of Africa to
deserving cases; and it can and must perform its outreach and publicity
better. But at the same time it’s important for the continent to
hear clearly the words of President Khama as he speaks truth to the AU’s power:
that is that the AU’s negative undermining of the ICC “places Africa on the
wrong side of history”, and “is a betrayal of the innocent and helpless victims
of such crimes”.

Max is senior research
associate on the International Crime in Africa Programme (ICAP) at the Institute
for Security Studies and associate professor at the University of
KwaZulu-Natal. Max is currently part of an ISS delegation
participating in the ICC ASP meeting in New York. ICAP is also
assisting the Botswana Government in drafting its domestic legislation to
incorporate the Rome Statute of the International Criminal Court.