Relations between the African Union and the International Criminal Court are currently at an all time low, especially after the ICC recently issued a warrant of arrest against embattled Libyan President Muammar al-Gaddafi, his son Saif al-Islam and Military Intelligence Chief Abdallah al-Sanussi.
While there have always been underlying tensions between the two organisations, relations started crumbling after the indictment of Sudanese President Omar al-Bashir. It was a historic moment in that al-Bashir was the first sitting head of state to be indicted by the ICC.
Gaddafi’s indictment is especially significant to Botswana in that his warrant of arrest was issued by ICC Judge Sanji Monageng, who is Botswana’s own export to the Hague. Botswana was one of the first countries to sever diplomatic ties with Libya after it emerged that al-Gaddafi had unleashed his army machinery onto innocent civilians. Botswana was also one of the first countries to applaud the ICC for the warrants of arrests against al-Bashir and al-Gaddafi, also warning the two leaders that they would be arrested if they ever set foot in Botswana.
This stance was however very much in contrast to that of the AU, which loudly condemned the indictment of the two leaders and accused the ICC of pandering to the whims of the United Nations Security Council (UNSC). At an AU summit in Malabo, Equatorial Guinea, African leaders resolved not to comply with the arrest warrant against al-Gaddafi.
The AU complained that al-Bashi and al-Gaddafi’s indictment complicate efforts aimed at finding a negotiated political settlement to the crisis in the two countries. It is for this reason that, despite their outstanding warrants of arrests, the two leaders can travel freely around the African continent and there is nothing the ICC can do about it.
When speaking at an ICC seminar organised for African journalists in Botswana last week, AU legal counsel Ben Kioko said the AU is concerned that the ICC targets African leaders and ignoring injustices perpetrated by countries like the United States of America, who he accused of committing war crimes in Afghanistan, Iraq and Gaza. He added that the ICC turns a blind eye to injustices performed by western countries, but is very quick to act against African leaders.
“The UNSC referred Libya and Sudan to the ICC. But they are not doing anything about the war crimes committed in Iraq and the atrocities happening in Gaza. That is selective justice,” he said.
Kioko accused the ICC of rushing to prosecute instead of finding a lasting solution to the conflict. In fact, the UNSC ignored pleas by the AU to defer the indictment of al-Gaddafi and al-Bashir to allow for peaceful negotiations. The UNSC is also accused of applying double standards as they deferred the prosecution of Serbian leaders by a year to allow for peaceful negotiations.
In response Justice Monagenag explained that the ICC exists only as a court of last resort. Together with David Toulbert of the international Center for Transitional Justice, they explained that state parties to the Rome Statue, which established the ICC, should strengthen their capability to prosecute crimes against humanity so that the ICC will not be overwhelmed. In fact, countries like USA and the United Kingdom have domesticated international law such that they are able to prosecute war crimes in their courts instead of referring them to the ICC. That is why they were able to prosecute army officers who committed war crimes in Iraq. Many African states have not domesticated international law, and they don’t have the capacity to prosecute war crimes, thus the referrals to ICC. Botswana parliament is expected to pass the bill domesticating international law to include war crimes and crimes against humanity in the November sitting.
Attendants at the seminar also accused the AU of sleeping on the job as millions of innocent lives would have been lost while the AU was dilly-dallying in the name of finding a lasting solution. Many also said the AU has never demonstrated ability to find peace in Africa, and said African leaders are more concerned about finding favorable exit solutions and guarantees of immunity from prosecution for their embattled counterparts. The ICC on the other hand grants no immunity to suspects.
But Kioko insists that al-Gaddafi’s indictment has complicated issues even more.
“Gaddafi had agreed and committed himself to inclusive dialogue. The UNSC and the ICC must not rush to prosecute. They must allow the AU to find solutions to the African problem. We have valid and legitimate concerns about the skewed influence of the UNSC in ICC operations,” he said.
The AU’s accusations were also denied by the ICC Deputy Prosecutor Fatou Bensouda, who insists that the world cannot turn a blind eye to the gross human rights abuses that occur in Africa. She also said the fact that some other leaders have not been prosecuted does not nullify the crimes committed by those who are under trial at the ICC.
“Are we saying we should forget the transgressions committed by those who are currently on trial just because so and so has not yet been indicted? Do we want to turn a blind eye to the injustices visited on millions of people in Africa? More than 5 million people are currently displaced in the continent. Thousands more have been raped and killed. All of these victims are pleading for ICC intervention,” she said.
“All all of the victims in our cases in Africa are African victims. These crimes were committed in Africa, by Africans against fellow Africans,” said Bensouda.
She also revealed that it was African leaders who referred the Sudanese and Libyan conflicts to the UNSC. Yoweri Museveni referred the Ugandan situation to the ICC. The Democratic Republic of Congo was referred by Joseph Kabila. South Africa, Gabon and Nigeria currently sit of the UNSC and they were present when the UNSC referred the Libyan situation to the ICC. Laurent Gbagbo and Alassane Ouatarra have given the ICC jurisdiction to investigate human rights abuses in Cote d’Ivore.
Amongst all the African states, Botswana was singled out and applauded for her uncompromising stance in condemning impunity. In fact, it was during the seminar that Botswana released a statement welcoming the warrant of arrest against al-Gaddafi. Attorney General Athalia Molokomme said Botswana takes her international obligations very seriously.
While she appreciates that Botswana might face sanctions for refusing to abide by AU resolutions, Molokomme said Botswana has to assert her sovereign right to balance international obligations with those of the AU and the ICC.
“We decided to ratify the Rome Statutes and cooperate with the ICC. The AU’s decision not to cooperate with the ICC in effecting the arrests of al-Bashir and al-Gaddafi is against the loftier ideals of finding peace and justice in the world,” she said.
The current standoff between the AU and the ICC will only work to reverse the gains that the world has made in fighting impunity and human rights abuses. From the Nuremberg trials, through to the arrest and prosecution of Charles Taylor, Slobodan Milosevic and Ratko Mladic, to the recent indictment of the Ocampo 6, there is abundant proof that the world, through the ICC, continues to vigilantly fight impunity and human rights abuses.
Justice Monageng explained that the ICC has a serious shortage of finances and manpower. Again, the ICC is a court of last resort, and it cannot try all cases of human rights abuses and impunity. It is therefore important for state parties to domesticate international law and increase their capability to prosecute human rights abuses. When it is evident that a state party has the ability and capacity to prosecute, the ICC will immediately withdraw.
African states are currently unable to prosecute such cases because they have not domesticated international law, while many of them lack capacity to do so. The AU should be working with African states to enable them to improve their legislation and capacity to prosecute. This will work to dispel the thinking that the ICC targets African leaders because then Africa, and not the ICC, will prosecute the despots who kill and maim their own kith and kin.
Again, the ICC is in effect a product of Africa. The SADC in particular played a very important role in facilitating the establishment of the ICC. To date 31 of Africa’s 53 nations are signatories to the Rome Statute. That amounts to nearly one-third of the countries where the ICC has jurisdiction. Over 30 percent of the ICC judges are from Africa. To date leaders from seven African states have either been indicted or are facing trial at the ICC. This is proof of the gravity of human rights abuses in Africa. The AU should be working with, and not against, the ICC.
