AU Gambles: Why Museveni, Kenyatta, And Other African Rulers Are Holding ICC Hostage

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Uhuru Kenyatta--playing the race card to avoid prosecution?

[Debate: International Criminal Court]

The African Union (AU) is holding the International Criminal Court (ICC) hostage.

At its special summit held at Addis Ababa in Ethiopia from October 11-13, 2013, the AU demanded the ICC provide immunity from prosecution to sitting heads of state for crimes of genocide, crimes against humanity and war crimes.

This demand is unlawful, unjust and contrary to article 27 of the ICC Statute.

The irony inherent in the request by the African leaders for immunity for themselves is that if one takes a look at the map of Africa, it becomes clear that some of the greatest critics of the ICC are leaders from states where presidents have come to power through prolonged armed conflicts that involved the deaths of thousands of civilians in the process.

Along the way, some of these presidents have retained power by use of brute force, state patronage and electoral rigging. Many such leaders have kept themselves in power for more than twenty years and counting. These crop of leaders are accountable to nobody and to no institution.

They cannot be subjected to local jurisdictions because they control all state institutions. Their track record of criminality tend to place them high on the ICC Prosecutor’s list of potential suspects. These are credible reasons why such African leaders are trying to discredit the ICC. Their objective is to pre-empt future criminal actions against them and not necessarily the protection of current accused persons facing trial before the ICC.

As a trade union for African leaders, the AU protects its members and their interests. And, the AU’s interests do not necessarily coincide with those of the ICC.

It is therefore not surprising that the rights of victims to a just and speedy trial never featured at the AU special summit. The same neglected victims have not had justice in their respective national courts because the perpetrators, under the cover of African leaders, enjoy immunity in all cases before a national jurisdiction.

Therefore, in the absence of the ICC, these victims will never get justice, compensation and closer. In turn, the perpetrators are often not investigated or prosecuted. It is prudent for Africans everywhere to be candid about abuses carried out by their leaders, purportedly in their names, and demand prosecution and not immunity.

Leaders who commit serious international crimes must be held to account and not given a free ride.

Uganda’s President Yoweri Museveni, a recent convert to join a group of ICC critics after having invited the same institution to indict his nemesis, the notorious Joseph Kony, now leads an assault on the credibility of the ICC.

President Museveni falsely argues that the ICC is biased and shallow in handling complex African issues.  President Museveni’s argument is nonsensical.First, when President Museveni referred the Lord's Resistance matter and Joseph Kony to the ICC, the Prosecutor acted on his reference. Prosecutor Luis Moreno Ocampo and President Museveni held a joint news conference in London announcing to the world that indictments and arrest warrants had been issued against the LRA leader and his senior advisors.

In fact, according to an article in The Wall Street Journal, some of Ocampo's colleagues at the ICC were stunned about his public appearance with President Museveni, since the Ugandan leader himself was considered to be a possible candidate for prosecution in connection to crimes committed by Uganda's military in DR Congo. The same article reported that President Museveni had urged then U.N. Secretary General Kofi Annan to block an investigation of the alleged crimes by Uganda's military in Congo.

This could explain why President Museveni is today determined to derail the court. After the ICC prosecutes Kenya's Uhuru Kenyatta in connection to his alleged role in the crimes committed during the 2007 Kenya presidential election campaigns, who knows who could be next?

Second, when the Uganda government and others filed an application before to the ICC to appear as a friend of the court,  amicus curiae, in the Kenya case, the application was granted. They supported a decision allowing the leaders of Kenya to travel back and fourth between the Hague and Kenya. President Museveni’s false statement must be rejected as the ICC; operating from within its legal framework has not, to the best of my knowledge, ignored requests or applications from any accused person or State Party to the Rome Treaty.

President Museveni and some of his colleagues at the AU appear to deliberately ignore the obvious nexus between the United Nations Peacekeeping operations in conflict areas and the ICC investigations and prosecutions. The greatest numbers of the UN peace-keeping operations are in Africa.

And, Africa is the continent were armed conflicts, and most of the crimes of genocide, crimes against humanity, and war crimes have occurred, and continues to occur. It is also a continent where perpetrators are rarely investigated or prosecuted; and national governments are unwilling or unable to investigate and prosecute those most responsible for the commission of these horrendous crimes.

The gross and massive violations of international humanitarian law on the African continent necessitate the involvement of the ICC Prosecutor to seek out the perpetrators and provide justice to victims. The deliberate use of a false equivalence by President Museveni that the ICC targets Africa without making a similar claim that the UN peace-keeping operations also targets Africa is disingenuous.

Without armed conflicts on the African continent, there would be fewer cases of violations of international humanitarian law with the result that the services of the ICC may not be necessary. Thus, Africa must put its house in order first before blaming the ICC.

To seek immunity for accused persons on the ground that the ICC targets African leaders is unreasonable and opportunistic. That is not an appropriate remedy. On the contrary, as the African leaders regularly plead with the UN to send peace-keeping troops to Africa, the African leaders, in large numbers ratified the ICC Statute because they recognized very early, the complexity of administering international criminal justice.

In many aspects, African governments begged the ICC Prosecutor, through self-referrals, to intervene in their domestic jurisdictions.  The very reasons why African leaders referred cases to the ICC have not changed. Arguments of state sovereignty are nothing but a fig leaf.

Most reasonable people agree that the ICC is not perfect.

Indeed, all global organizations, including the United Nations, the World Trade Organizations, and others, have weaknesses and flaws. Attempts have always been made by members to improve such global organizations.

With respect to the United Nations, African leaders have not threatened to pull out of the organization because its peace-keeping operations target Africa or because the continent does not have a Permanent seat on the Security Council. Criticisms of the ICC by African leaders are anchored primarily on false grounds. However, the real challenges that face the ICC can be effectively discussed within its legal framework without necessarily using a cover that the institution targets Africa.

A candid Archbishop Desmond Tutu unveils the elephant in the room when he says: “African leaders behind the move to extract the continent from jurisdiction of the ICC are effectively seeking a license to kill, maim and oppress their people without consequences.”

Tutu's warnings come from wealth of experience given his own country's history, as he recalled: "In South Africa, it has taken a long process of truth and reconciliation for the wounds of apartheid to begin to heal. In Kenya, the post-election violence wounds will take a long time to heal. Put simply, where justice and order is not restored, there can be no healing, leaving violence and hatred ticking like a bomb in the corner."

Tutu added: "At the front, we need the heavyweight champions of Africa – South Africa and Nigeria – to exercise their leadership and stop those that do not like the rules from attempting to re-write them.

Elsewhere, Tutu warns "The continent has suffered the consequences of unaccountable governance for too long to disown the protections offered by the I.C.C."

I fully concur.

On the other hand,  Uhuru Kenyatta whose trial at the ICC at the Hague is scheduled to start November 12, while in Ethiopia used hard language to denounce the court, saying it "stopped being the home of justice the day it became the toy of declining imperial powers," and that the ICC was guilty of  "bias and race-hunting".

This is an interesting way for a suspect to conduct a defense weeks before his trial starts. In fact, President Museveni gave President Kenyatta the template of dealing with the ICC during the Kenyan leader's swearing in ceremony earlier this year.

Instead of being negative and destructive, the African Union can choose to play a positive role. Under article 121 of the ICC Statute, there are detailed provisions for amendments. Article 121(1) for example authorizes any State Party to propose amendments to any provision of the statute. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all State Parties.

The proposed amendment is dealt with at a meeting of the Assembly of State Parties or at a Review Conference. The process is simple, straightforward with no complication. Any serious State Party will adopt this course.

As regards the granting of immunity to African heads of state, such a request, based on current law, would be unlawful. Article 27(1) of the Rome Treaty expressly provides that the statute shall apply equally to all persons without any distinction based on official capacity in particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

On immunity from prosecution, article 27(2) clarifies that immunities or special procedural rules may attach to the official capacity of a person, whether under national law or international law, shall not bar the Court from exercising its jurisdiction of such a person.

If the AU find article 27 offensive and seek a remedy, the forum to go to is to the State Party meeting or a review conference where a proposed amendment to article 27 is presented. The AU special summit is not a forum from where the African leaders can issue directives to the ICC and literally seeking to hold the ICC hostage.

These AU resolutions have no legal effect and the ICC is free to ignore such reckless ultimatum. Overall, even if the AU were to submit a proposed amendment, it would face serious challenges because article 27 reflects existing international customary law and has been the law applicable since the Nuremberg Trials. The chances of amending article 27 to create special status for African leaders are unrealistic, but it is their right to try and propose their preferred amendment.

By seeking to amend article 27, the AU loses its moral authority, or whatever little moral authority it may have had in some part of Africa. It appears the African leaders need unfettered authority to oppress their people without consequences as articulated by Archbishop Tutu.

By ignoring both the victims and evidence of criminality implicating accused at the ICC trials, the AU is simply peddling the old notion of African leaders’ relation to power where the "big man" does no wrong and is accountable to no one or any institution. Or at worse, AU is hiding its head in the sun.

Poor ostrich.

The sub-text of the AU decision is not about the ICC. It is about a relationship between African leaders and their victims. The ICC Statute has altered that relationship and made all accused persons, regardless of their status or official position, individually criminally responsible for their acts or omissions.

It is against this legal norm on responsibility and accountability that scares the African leaders and not some obscure idea that the ICC targets Africa. The African leaders themselves know that the ICC is not targeting Africans but investigating and prosecuting perpetrators, most of whom are "leaders" based on credible evidence.

It is conceded that ICC investigations may not be in the interest of African leaders, but the victims who remain unprotected by their governments appreciate and support it. To the ordinary African, the ICC has not gone far enough. There are many African leaders out there who need to be investigated, arrested and prosecuted.

In conclusion, just as the UN peace-keepers seek to provide security to the civilian population in armed conflict situations, the ICC seeks to provide justice to the victims who cannot get any form of remedy from their national justice system.

The ICC serves good purposes and is of benefit to the African victims and the civilian population. All people of good will must support the ICC in fulfilling its mandate.

 

Dr. Obote Odora is a Consultant in International Criminal Law & Policy

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