The Continent Versus The Court: African Union Deliberates Withdrawal From The ICC

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African Union Oct 2013
A general view shows the opening session of Heads of States and Government of the African Union on the case of African relationship with the International Criminal Court (ICC) in Ethiopia's capital Addis Ababa, October 11, 2013.

ADDIS ABABA, Ethiopia -- African leaders gathered at the African Union headquarters in Ethiopia's capital city this week for an extraordinary summit to put the International Criminal Court on trial.

Several officials here accuse the ICC, which is based in The Hague and serves as a global judiciary for serious crimes, of targeting Africans specifically. They point out that all of the court's eight active investigations are focused on African countries, and only Africans have been indicted. Now, leaders in Addis Ababa are deliberating over their next course of action, with some urging a mass withdrawal for all African member countries.

"Far from promoting justice and reconciliation and contributing to the advancement of peace and stability on out continent, the court has transformed itself into a political instrument targeting Africa and Africans," Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus said in his address to the summit Friday. "This unfair and unjust treatment is totally unacceptable, and that is why we have been expressing our serious concerns against the ICC."

Tensions Build

The ICC was established in 2002 in accordance with the Rome Statute, a 1998 treaty. Today, 122 countries are party to the agreement; notably absent are superpowers like the United States, China and Russia. African countries make up nearly one-third of all ICC members.

Of the eight cases currently on the docket, only two -- in the Ivory Coast and Kenya -- were pursued independently by the ICC prosecutor. Another two investigations, in Darfur and Libya, were handed over by the U.N. Security Council. The remaining four -- in Uganda, the Central African Republic, Mali and the Democratic Republic of the Congo -- were submitted by the countries themselves, in some cases with ICC prodding.

"ICC is not targeting Africa -- it is fighting against impunity and providing justice to African victims," said ICC spokesman Fadi El Abdallah. "What is important to highlight is that the ICC intervenes only as a last resort court when national judiciaries are not capable or not willing to prosecute the alleged perpetrators of mass crimes."

Kenya is home to one such judiciary -- it missed a deadline to set up a domestic tribunal for crimes against humanity committed committed during the aftermath of the country's disputed 2007 presidential election, when ethnic divisions led to widespread violence that killed about 1,200 people. The ICC stepped in to indict six men in 2011, though three cases have been since dropped. The three remaining suspects were Uhuru Kenyatta and William Ruto, both political figures, and Joshua arap Sang, a radio journalist. 

The issue came to a head in March, when Kenyatta won the Kenyan presidency with Ruto as his deputy. Both men deny their charges of backing militant violence, and both have pledged to cooperate with the court proceedings. After lengthy delays, due in part to witness withdrawals, Ruto's trial began in September and Kenyatta's is scheduled for November.

The ICC has never tried sitting heads of state before, and the cases have touched a deep nerve in Kenya. Kenyatta is working to keep up his country's impressive economic growth, revamp infrastructure, tackle unemployment and strengthen national defense in the aftermath of a bloody terrorist attack at a popular mall in the capital city of Nairobi this month. But the ICC case threatens to interrupt his presidency; he and the AU have campaigned, so far unsuccessfully, to keep his personal presence at The Hague down to a minimum come November. The president's legal team is also fighting to permanently defer his trial; lawyers filed a request to the ICC on Thursday, citing corrupt court proceedings.

Kenya's parliament voted last month to withdraw from the Rome Statute, a move that has yet to be formalized. And that solidarity with the Kenyan administration now extends far beyond Nairobi; the high-profile case become a tipping point for ICC grievances across the continent.

"Race Hunting"

Not everyone in attendance at the AU this weekend has a stake in this decision; only 34 African countries are signatories to the Rome Statute, including economic heavyweights like South Africa and Nigeria. Countries not party to the agreement include Rwanda, Zimbabwe and Ethiopia.

Ethiopia, whose Prime Minister Hailemariam Desalegn chairs the African Union, is one of the ICC's strongest outside critics. Desalegn famously said at an AU summit in May that the tribunal's process was akin to "race hunting." The Kenyan issue is only the latest point of contention; Ethiopia has also butted heads with the tribunal over Sudan's ICC-indicted President Omar al-Bashir, hosting him on several occasions despite the outstanding warrant for his arrest and petitioning the court to allow him to travel for diplomatic events. 

At a press conference last week, Desalegn refused to speculate about a mass withdrawal from the Rome Statute, noting that Ethiopia is not a party to the ICC. "But as the chair of the African Union, I have the mandate to [be] the voice of African leaders," he added. "The common position from the African leaders is that the ICC is not a fair organization."

Opposition to the ICC is indeed strong in East Africa -- in part because Sudanese and Kenyan heads of state are both on the docket -- and Zimbabwe's President Robert Mugabe is also a strident critic. But some countries aren't so committed. South Africa has been hesitant to weigh in officially, but Desmond Tutu -- a former anti-apartheid fighter and one of the country's most revered figures -- penned a strongly worded argument against ICC withdrawal in the New York Times. "Those leaders seeking to skirt the court are effectively looking for a license to kill, maim and oppress their own people without consequence," he wrote.

West African countries like Nigeria and Ghana also appear unlikely to support withdrawal. Ghanaian native and former U.N. Secretary-General Kofi Annan gave a speech in South African university Monday in support of the ICC. "I am surprised to hear critics ask whether the pursuit of justice might obstruct the search for peace," he said.

Annan and other supporters of the ICC charge that atrocities might be committed with impunity should African countries withdraw, but opponents of the court retort that countries can rely on their own mechanisms, including domestic courts and the AU, to bring criminals to justice.

"The fight against impunity is inscribed in the very founding vision of the African Union," said AU Commission Chair Nkosazana Dlamini-Zuma in a summit address Friday. "It is clearly articulated in the AU Constitutive Act and other relevant AU instruments, as well as in various decisions of the AU's policy organs."

Deliberation over these issues will continue into Saturday, while the ICC maintains that  membership is still in the best interest of its African partners. "The International Criminal Court is confident that the vast majority of African States sees the value of the Rome Statute system, particularly in averting future violence," said the ICC's El Abdallah, "and therefore will remain committed to the treaty."

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