BAKAU—The Gambia this week proclaimed its withdrawal from the premiere multi-treaty global judicial institution, the International Criminal Court (ICC). The announcement comes on the heels of earlier withdrawals of two other African states from the court. The exodus is the first time countries have left the court.

Burundi, the tiny East African nation, and South Africa, one of the power houses on the continent, both became the first African countries to exit the court. Kenya is likely to follow suit. Earlier last year, some member countries of the continent urged for a mass exodus from the court. This move however, has been opposed by amongst others Senegal and Algeria, showing the controversy surrounding the court on the continent. The latest theatrical twist is seen as the last antagonism to what many African leaders and critics see as the prejudiced targeting of Africans for prosecution by the court.

The court was established in 1998 to prosecute grave crimes against the international order including war crimes, crimes against humanity, and genocide amongst others. The court is located in The Hague and has a Gambian citizen as its chief prosecutor. The court’s establishment was seen by many as a development in the right direction. Since its establishment, 124 countries have been signatories to the ICC Charter.

In broadcasting the pronouncement on state television, Gambia Radio and Television Services, the Gambian Minister of Information and Communications, Sheriff Bojang said the country’s parting from the court is grounded on what he noted is its biased selection of cases of which the majority are from Africa. Bojang, who is a journalist, further called the court a “Caucasian court,” meant to try people of colour, while whirling a blind eye to over 30 crimes committed by white people against other races.

Minister Bojang also lamented that the court refused to consider The Gambia’s referral of European countries for allegedly killing African migrants. “There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted,” he said.

Although I have not agreed with many of The Gambia governments decisions of departing from international bodies like the ICC, I find this latest decision interesting. Once again, the withdrawals are evidence of the fact that the court has failed to address many of the key issues that have walled its establishment and actions in Africa. The Chief Prosecutor, Fatou Bensouda, has on several occasions denied the criticisms that the court targets Africans.

Regrettably, the actions of the ICC seem to show otherwise. Since its establishment to date, the court has received over “9000 formal complains” according to Dr. David Hoile, which alleged war crimes in 139 countries. Hoile is the author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the Africa Research Centre.

But as a sign of its biased nature, “the ICC has chosen to indict 36 black Africans in eight African countries. In so doing the ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states.” Due to its persistent biased activities on the continent, the ICC has derailed the peace process in countries like Uganda and Sudan.

He further noted: “While the ICC’s key first two cases were African ‘self-referrals’ it is now clear that the African governments were made ‘an offer they could not refuse’: refer yourself and we will only indict your rebels – if not we will indict both government and rebels.”

The ICC lacks enforcement mechanisms and relies heavily on the compliance of states to enforce its rulings. This loophole in the operation of the court was brought to bear in the case of Bashir. After being indicted for alleged genocide and other crimes in the Sudanese region of Darfur, it would be expected that countries especially those in Africa would be willing to help the court enforce the arrest warrant. But this has not happened and Bashir continues to hop around the world. He has been to a number of African countries all of whom are signatories to the charter including Kenya, Malawi, Chad and Congo. It was the controversy over his arrest in South Africa that convinced the country to pull out of the court.

One of the most interesting paradoxes surrounding the court is that the UN Security Council is given the authority to refer cases to the court by the ICC treaty. As interesting as it seems, three out of the five permanent members of the council are not signatories to the court. They are China, Russia and the US. Considering that India amongst other highly populated countries are not signatories to the court, this puts the majority of the world’s population out of the court’s jurisdiction.

A more interesting fact is that some of the non-signatories to the ICC charter including many of the key global players have been very instrumental in not only creating the court, but shoving it down the throats of vulnerable countries most of whom are in Africa.

During the reign of President Bush under whose term the court was established, the United States made its hostility to the ICC a very known fact. An Act known as The Hague Hostilities Act was passed by Congress which gave the US the power to invade and free any American citizen who may be tried by the court.

America’s posturing against the court was well calculated. Given that the US has been engaged in many hostilities against many countries which have amounted to crimes under the jurisdiction of the court, it is only natural and logical that they oppose the establishment of the court.

Indeed, the incursion into Iraq and Afghanistan are well illustrated examples. While many have supported the right of the US to invade Afghanistan following the 2001 Terror Attacks, the assault on Iraq was opposed by many people around the world.

The attack on Iraq was not only based on the wrong pretext, it led to the killing of hundreds of thousands of people just like in Afghanistan. Investigations by several international human rights groups confirmed commission of several serious international crimes such as war crimes and crimes against humanity. When these issues were referred to the ICC during the time of the Argentine chief prosecutor, Moreno Ocampo, the ICC claimed that there was no sufficient basis to carry out prosecutions.

As recent as this year, Fatou Bensouda, in an interview with BBC had claimed that Tony Blair, former British Prime Minister who was complicit in the invasion of Iraq alongside George W. Bush could not be brought to trial by her court because of the fact that the ICC does not have full jurisdiction over crimes of aggression. This was seen by many including myself as not only unconvincing, but also a lackluster attitude to take on the big fish of global politics. A former UK foreign secretary, Robin Cook, was once quoted as saying that the ICC was unlikely to ever try a US President or sitting UK Prime Minister.

While jerry-picking many of its cases from around Africa, elsewhere around the globe, the court has been soft-pedalling on the commission of crimes in Colombia where decades long wars have led to the deaths of thousands. At best, the ICC has also been very silent on the situation in Syria where the government of President Assad has murdered hundreds of thousands of people. Be assured that if these crimes were committed in Africa, the ICC would have been the first to investigate and prosecute the offenders.

The ICC has argued that most of the cases it presides over in Africa are referred to by state parties. As argued earlier in this article, a tacit and closer observation of this statement as opposed to the actions of the court reveals a different fact. The New African Magazine has argued that the ICC forced African governments to refer these cases.

In addition, many African governments have found the court a convenient way to rid themselves of long standing rivals. In Ivory Coast, despite the fact that all sides of the Ivorian conflict committed heinous crimes, it was only Gbagbo and his allies who were taken to the court. There has been little or no talk about holding President Ouattara and his surrogates to account. In Uganda, the same situation was seen to have frolicked out. President Museveni and his lieutenants have remained unscathed while the Lord Resistance Army officials have been indicted and in some cases tried.

Although I agree with African leaders that the ICC has been very selective in its application of the rule of law in the international judicial plane, there has to be honest attempts to address issues of injustice on the African continent. The ordinary people of Africa have for long suffered in the hands of many of our leaders since the independence days. Wars in places like Rwanda, Burundi, Congo, the Central African Republic, Sierra Leone, Liberia, Sudan and Chad amongst others have led to millions of deaths. The African leaders seem to be at best unable or unwilling to help their own people find the course of justice. And so, this provides a pretext for the West to continue to use the ICC as a segway for meddling into the affairs of the continent and plunder its resources.

Enshrining the principles of good governance and democracy in the daily lives of Africans must be a rule-of-thumb. It is heartbreaking that the African continent which is the richest continues to be the wretched of the earth. The majority of our people live like paupers while our resources benefit outsiders. We must empower our people to use their ingenuity to enhance Africa’s progress. Until then, the reasons which make the ICC pry its eyes on Africa will endure unobstructed.

The much talked about African Court does not seem to be an ingenious tool to curb injustice in Africa. And it is arguable whether many African governments who are not answerable to their own courts will be accountable to an international court at the African level. So, any discussions of the current role of the ICC on the continent must include building serious and credible system of justice administration that will be able to hold perpetrators of grave crimes on the continent to account as part of the mantra of “African Solutions to African Problems.”

Finally, Africans and their leadership must be willing and ready to find their rightful voice in global affairs. It is sad that we are always ready to pen signatures to any international treaties just to appear virtuous to the transnational municipal of states without really looking into the real issues behind the treaties.

Also, the web of control against Africans must be put to the past. For example, even after leaving the ICC, the leaders could still be prosecuted through the security Council. The Council is not only predisposed in its composition; it is also likely to continue being used as a device of subjugation against Africans who have no voice in it.

 

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Mustapha Kah
Mustapha is a law graduate from the University of The Gambia. He is a social and current affairs commentator. He is a well-known journalist and international debate adjudicator. He has served in the chief adjudication panel of the Pan-African Universities Debating Championship. He is the founder and President of Debate Gambia. He is currently pursuing a Master’s Degree in Diplomacy and International Affairs at the Azerbaijan Diplomatic Academy.  

5 COMMENTS

  1. Brilliant endeavour at tackling the controversy surrounding Africa and the so-called International Criminal Court (ICC) with analytical objectivity in Truthquest pursuit of the best interests of Afrikan people! Except for the point about President Assad and Syria today, which ought to be critically debated, the article is quite honestly impressive in my opinon! Very well done, Mustapha Kah!

  2. My brother, i read through your long essay on the ICC and find it very interesting. Unlike other reactions as to the reasons why Gambia left the ICC, your essay is very objective and fact oriented. You cited many cases of bias against Africa which is undisputed. There are all indications that the court is Euro centric. From its inception, no European or American former president had been indicted. This is what makes the court look not only prejudicial but toxic to Africa.

    Rule for one is rule for all otherwise each will start writing rules. As a historian we are not very good at predicting but i can tell you the exit of three African states have opened the flood gates wider making it possible for mass exit. African governments needs no permission from anyone to quit the icc. ICC to me sounds botanical but in reality represents neocolonialism. Sufficient reasons therefore exist for Afro-exit if you like.

    At this juncture one would ask what the future of the ICC will look like if Africa is out followed by other Asian and latin American countries whose cases are similar to Africa.
    Issues of enforcement are troubling not only for the ICC but even the UN. The U.S. holds 1 out of 4 prisoners globally. Their justification for war on terror is flawed under international law. Their rendition activities is global in outreach, yet they prided as the world’s best democracy.

    One can continue to cite so many examples that the icc could have followed or at least condemn.

    The concluding part of your essay is the real issue African governments must tackle ie good governance, accountability, transparency etc. We need stronger but credible institutions that can guarantee hope, dignity and progress. Africa people are certainly moving towards that direction . African leaders must therefore move faster in that direction before it is too late.

  3. Good work Mustapha Kah. I think this is what we should do, i.e to critique the ICC in order to highlight its shortcomings and hopefully propose solutions to improve it. And also build a campaign against the other countries especially the major ones for not being part of the ICC. The issues you highlighted among others is the reason I have argued for the merger of the ICC with the UN structure enjoying the same status as the Security Council. The ICC came out of the UN process and it is amazing that it has been located outside of the main UN path. This is the campaign we need to do. My second edition of that article came after the Chilcot Report on Iraq was released in the UK in July, and I argued that if the ICC was part of the UN then it would have been easy to nab Tony Blair. For African to withdraw does not serve us in any way. If we had the right governments and the right leaders that can put a stop to mass atrocities on continent then it makes sense. If there was a unified democratic strong Africa then we can impact on all global institutions. But as we are right now, the only victims, when we withdraw will be the people because indeed Africa does not have governments in the proper sense yet. Hence some of these international institutions and processes have served to restrain some actions of our leaders. If one is involved with some of the processes you get to see that even though these institutions remain highly under the influence of big powers. And that is not a strange thing too because such is the nature of global politics. US seeks to dominate and control, China seeks to dominate and control, Russian seeks to do the same, etc etc. Hence Africa will only have its fair share when there is an empowered Africa. That should be our preoccupation otherwise the withdrawals and complains and condemnations will never end yet to no avail.

  4. The ICC does have an open case on Colombia. Let’s not forget that the court is designed to step in when there is a prosecutorial vacuum or failure by national authorities. If peace negotiations fail and Colombia fails to prosecute, we will hear more on that case. Also, the ICC case on Syria was vetoed by Russia and China. That is big power play. I am sure the United States will also veto any attempt to bring its proxies in Syria to trial. We Africans have to be smart. At this stage I am more concerned by the beast in my backyard. Perhaps let’s not end here. Let’s ask civilians in CAR, DARFUR,EASTERN CONGO, relatives of the 1000 killed in Kenya, and other victims for their opinion.

  5. My brother, i read through your long essay on the ICC and find it very interesting. Unlike other reactions as to the reasons why Gambia left the ICC, your essay is very objective and fact oriented. You cited many cases of bias against Africa which is undisputed. There are all indications that the court is Euro centric. From its inception, no European or American former president had been indicted. This is what makes the court look not only prejudicial but toxic to Africa.

    Rule for one is rule for all otherwise each will start writing rules. As a historian we are not very good at predicting but i can tell you the exit of three African states have opened the flood gates wider making it possible for mass exit. African governments needs no permission from anyone to quit the icc. ICC to me sounds botanical but in reality represents neocolonialism. Sufficient reasons therefore exist for Afro-exit if you like.

    At this juncture one would ask what the future of the ICC will look like if Africa is out followed by other Asian and latin American countries whose cases are similar to Africa.
    Issues of enforcement are troubling not only for the ICC but even the UN. The U.S. holds 1 out of 4 prisoners globally. Their justification for war on terror is flawed under international law. Their rendition activities is global in outreach, yet they prided as the world’s best democracy.

    One can continue to cite so many examples that the icc could have followed or at least condemn.

    The concluding part of your essay is the real issue African governments must tackle ie good governance, accountability, transparency etc. We need stronger but credible institutions that can guarantee hope, dignity and progress. Africa people are certainly moving towards that direction . African leaders must therefore move faster in that direction before it is late.

    Let me pause here until later.

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