ICC and Africa: Mail & Guardian gets it wrong (and why it matters)

This week's Mail & Guardian contains two contributions related to the ongoing spat between the International Criminal Court (ICC) and African states, in anticipation of this weekend's Extraordinary African Union Summit on the issue. The two offerings on the ICC-Africa issue are contained in its Editorial (no less) - titled 'SA must stand up to ICC's detractors' (p. 34) - and an article by one Mmanaledi Mataboge - titled 'Heat is on SA over world court' (p. 12). In general, I have great respect for the MG print edition as well as its online platform (although their proclivity for headline puns annoys me a little). However, its Editorial contains fundamental and inexcusable factual errors which, beyond mere sloppy journalism, do little to contribute to the public debate on this important issue.  

The errors in the Editorial include the following:

• The Editorial suggests that 'it does look as though the court is unfairly targeting the continent ... [as] almost all the cases before it now are African'. Correction: all the current cases are from Africa.

• It goes on to state: 

'Last week in Cape Town, the former United Nations secretary general Kofi Annan reminded us that, of the six African cases the ICC is prosecuting, five were referred to it by the nations involved, so they obviously support the ICC process and find it valuable in dealing with human-rights abuses in their countries. The exception, however, is the troublesome one: Kenya.'   

This might pass for reporting if in fact that is what Mr Annan said. I wasn't there but, if it is what he said, then he was wrong and the MG is wrong for repeating it. There are currently eight situations before the Court, all involving African countries (Côte d’Ivoire, Uganda, the Democratic Republic of Congo, Sudan, the Central African Republic, Kenya, Libya and Mali). Within these situations, there are 27 cases at various stages of proceedings, all of which involve Africans. It is correct to say that Kenya didn't refer itself to the Court, the Prosecutor at the time - Mr Ocampo - decided to pursue that case on his own accord. However, while Cote d'Ivoire voluntarily submitted itself to the ICC's jurisdiction (twice), at the time it was not a state party, the investigation was  ultimately 'triggered' by the Prosecutor (much like Kenya). The other two cases that don't fit into Mr Annan's (reported) list - Sudan and Libya - were referred to the Court by the Security Council. Their omission is significant as the power of the Security Council to refer states to the ICC (even non-state parties like Sudan and Libya) has increasingly drawn the ire of African states.      

• The Editorial goes on to state (with some measure of high-handedness):

'The ICC's African opponents need to be reminded that the Rome Statute is there to end impunity when it comes to the kinds of horrors perpetrated by, say, the Liberian warlord Charles Taylor, or the Lord's Resistance Army – to mention two African cases the ICC has handled.'  

Correction: Charles Taylor was tried by the Special Court for Sierra Leone, not the ICC. [In the MG's 'defence', it is not the only paper to make such elisions: a week or so ago the Business Day (another respected South African news outlet) also stated that the ICC had convicted Taylor (the article has since been 'corrected', bizarrely it now credits 'the Special Court for Sierra Leone's sub-office in The Hague' for the conviction).]

Thankfully, the Mataboge article (titled 'Heat is on SA over world court') is more factually accurate, although I would point out that the term 'the world court' is generally used to refer to the International Court of Justice (also based in The Hague, but established to address disputes between states, not try individuals); the two courts are commonly confused. 

The problem with the Editorial's errors is that they are symptomatic of a general tendency within the media, and amongst 'analysts', to elide, conflate and oversimplify the issues raised by the current debate. This tendency is supported (if not encouraged) by parties on both sides of the debate who stand to benefit from it (i.e. states hostile to the ICC, as well as civil society). 

The conflation of the ICC (which is trying Mr. Kenyatta, and trying to try Mr. al-Bashir) with the Special Court for Sierra Leone (which recently convicted ex-Liberian President Charles Taylor) is a prime example of this. The ICC is a treaty-based body established by the Rome Statute, which has been signed by 122 states - including 34 from Africa. It is permanent body, with jurisdiction over all states parties and in exceptional circumstances over non-states parties as well. The Special Court for Sierra Leone is a so-called 'ad hoc' mechanisms established by way of a special agreement between Sierra Leone and the UN. It only has jurisdiction over crimes committed in that country since 1996. The two institutions are both institutionally and operationally very different, conflating them in the case of Mr. Taylor incorrectly fuels claims of an anti-African bias, while at the same time giving the ICC credit for a conviction it didn't secure (and securing convictions has been a real problem for the court).

When it comes to cases that the ICC is actually pursuing, the conflation (or misrepresentation) of how different situations have come before the Court is similarly problematic. For example, those that have come before the court by way of the Security Council (Libya and Sudan) raise a very different set of issues to the others. They implicate an ongoing debate about the legitimacy of the Security Council - and the undue power its current structure gives to the US, UK, France, China and Russia which African states have consistently (and correctly in my opinion) objected to - and its contamination of the ICC's mission to dispense universal 'international criminal justice'. Those concerns are very different from the issues raised in the Kenya matter, for example, which (at best) relate to the prerogative of a state to decide how best to address atrocities committed within its borders, and how that relates to its  (voluntarily assumed) obligations to the ICC. They also differ from valid concerns about how the Prosecutor has used - and in the case of Gaza 'not used' - the power under the Rome Statute to initiate investigations on her/his own accord. 

Finally, its worth pointing out that when it comes to African state concerns about international criminal justice, they are not limited to the ICC. In fact, the current debate within the AU was triggered by concerns about the abuse of the principle of universal  jurisdiction by European states in respect of 'African personalities' (often along former colonial lines).

The conflation of all of these issue works in favour of protagonist on both sides of the current debate: Some opponents of the ICC are looking to capitalise on concerns about the Security Council and neo-colonial judicial intervention to scupper ongoing trials (such as those in Kenya) that have little or nothing to do with these issues. Similarly, many activists and civil society groups in favour of the ICC present the international criminal justice project as a homogenous, apolitical, universal crusade for justice (for victims), without acknowledging the darker sides of the project's past (such as the failure to address crimes committed during decolonization) or the continued uneven application of its mission in the present. To argue against aspects of the ICC current make-up (such as the Security Council's role), then, is to oppose 'justice' for victims of unspeakable crimes. 

The real loser in all this is informed public debate on an issue with very high-stakes, regardless of which side one falls on. While it is perhaps asking too much for a single Editorial to capture the full complexity of the issue, at the very least it should get those aspects of it that it chooses to address right. 

Africa must help strengthen the ICC for its own sake

by Max du Plessis & Sivu Maqungo

THIS week, the African Union (AU) will debate accountability for heads of state accused of genocide, war crimes and crimes against humanity. But instead of discussing how to bring such individuals to justice, it seems the AU’s debate will consider how to ensure some of the accused escape accountability, or at least avoid trial before the International Criminal Court (ICC).

The ICC is the world’s first permanent international criminal court. Since its inception in 2002, its cases have focused on African atrocities, of which there are an abundance. This African focus is not, however, entirely of the court’s own making.

There are three ways in which cases can come before the ICC, two of which are not in the control of the court. States can ask the ICC prosecutor to investigate a case, the prosecutor can initiate an investigation in a state that is a member of the ICC’s Rome Statute, or the United Nations (UN) Security Council can refer a case for investigation.

Despite the fact that most African cases before the ICC were referred by African states themselves, the court’s apparent focus on Africa has drawn the ire of African leaders and the AU. It has also raised legitimate concerns about the ICC’s commitment to seeking justice beyond Africa.

The AU’s relationship with the ICC first turned sour when, in 2008, the ICC prosecutor announced the court’s intention to seek an indictment of President Omar al-Bashir of Sudan for alleged genocide in Darfur. The relationship has hit rock bottom with the ICC’s recent efforts to hold Kenyan leaders responsible for crimes committed during Kenya’s postelection violence in 2007-08. That violence resulted in the killing of more than 1,100 people and the mass displacement of Kenyan citizens. In response, Kenya established a commission of inquiry to investigate and identify those responsible. Among others, then finance minister Uhuru Kenyatta and education minister William Ruto were implicated in the crimes.

The commission recommended that a local tribunal be established to deal with the charges against those who may bear responsibility. The Kenyan parliament failed to act on this recommendation, knowing that this would open the door for an ICC investigation. Kenya is a member of the ICC’s Rome Statute, the provisions of which allow the ICC to investigate crimes in a member state only when that state is unable or unwilling to do so itself. So, to be clear, Kenya itself paved the way for the ICC to carry out the prosecutions through its unwillingness to do the job at home.

Kenyatta and Ruto have since become president and deputy president of Kenya respectively. They find themselves facing a criminal prosecution at the ICC whilst shouldering the responsibility for running an important African country.

With their ascension to their country’s leadership comes a dilemma for Kenya and the ICC, compounded by the Westgate terrorist attack in Nairobi last month, allowing Ruto (who was first to appear at the ICC) to return home during this time of crisis. With these developments, the ICC’s Kenya trial has in effect been put on ice.

And so we head towards the AU meeting in Addis Ababa at the end of this week. The meeting, scheduled during an extraordinary AU summit on the ICC, will include debate about African ICC states withdrawing from the Rome Statute. It follows efforts earlier this year by the AU at its May summit, at the initiative of Kenya and Uganda, to call for a referral of the ICC’s cases to a national mechanism in Kenya. That call was made despite the ICC’s judges rejecting the same request by the Kenyan government in 2011 due to a lack of genuine national investigations and prosecutions.

It is ironic and wrong, then, that the debate should be pressured by Kenya when Kenya — and its supporters in the AU — appears to be intent on avoiding accountability for Kenyatta and Ruto. Their lack of appetite for ensuring justice in Kenya is matched only by their hunger to ensure that the ICC’s Kenya trial is undermined.

This is a trend that does Africa no honour. African leaders gathering in Addis Ababa should recall that public displays of justice are necessary to secure peace and to deter the commission of terror attacks such as those at the Westgate mall, or the masterminding of serious violence during elections.

Already Africans have failed themselves in southern Africa by collapsing the Southern African Development Community (Sadc) Tribunal. The tribunal was shut down in August last year after a ruling handed down five years earlier on illegal land seizures that went against the Zimbabwean government. Zimbabwe refused to comply with the tribunal’s decision. After a protracted legal battle, the Zimbabwean government lobbied fellow Sadc leaders to close the region’s only interstate mechanism for the protection of human rights and the rule of law.

The message to victims, investors and the world is that the continent’s leaders are allergic to institutions of accountability. That message is amplified if African leaders suggest withdrawing from the ICC. It was in establishing the AU that Africa decided that it would take action to protect people from atrocities. That commitment must not now be reversed. It may be expedient today to weaken the one institution that can deliver justice in Kenya or Darfur. But that expediency will come at a cost, not only to the dream of an Africa at peace with itself, but to stability and civility, which are the hallmarks of the rule of law.

It is worrying that South Africa’s government has not distanced itself from the AU’s efforts. On the contrary, President Jacob Zuma was reported last month to have urged the ICC prosecutor to compromise with Kenyan leaders and spare them the obligation of sitting through their trials. While Zuma has not declared South Africa’s official position, his remarks on the margins of the UN General Assembly were interpreted as being sympathetic to the Kenyatta-Ruto cause.

Zuma’s remarks are concerning because, up to now, South Africa has played a vital role in supporting the work of the ICC. South Africa led regional efforts to draft the Rome Statute, was the first African country to pass domestic legislation in line with Rome Statute provisions, has tasked specialised investigation and prosecution units with working on grave crimes, and has gone further than other African states by issuing an arrest warrant for al-Bashir should he enter the country. South Africa’s leadership in strengthening the ICC is needed now more than ever.

What the AU and South Africa must highlight is that the strongest disinfectant is sunlight. By trying those responsible, the world exposes the truth of the atrocities and deters future crimes — and helps to bring justice for the victims. Undermining the ICC’s trials ensures a failure of accountability.

While powerful African elites may relish the notion of an accountability-free zone, such a notion would do further violence to the victims of the Westgate attack, the victims of the postelection violence and the victims of crimes against humanity and genocide in Darfur, Sudan and other African states.

These victims, all African, deserve justice. That will happen only by strengthening institutions of justice nationally and internationally. The ICC is central to this vision and must be strengthened to deliver justice everywhere. It should not be weakened by African withdrawals, which risk ensuring that it is unable to deliver justice anywhere.

• Maqungo and du Plessis are senior research associates at the Institute for Security Studies.