Originally Published 2013-12-05 10:37:43 Published on Dec 05, 2013
In the context of the African Union-International Criminal Court confrontation, the court is no longer about finding justice for the victims as many wrongly assume and believe; rather the process is now about whether an ICC faced with prosecuting cases that don't belong there,
Africa and the International Criminal Court
"The opposition of many African governments to the International Criminal Court (ICC) is not new. Since 2008, when former ICC prosecutor Moreno Ocampo launched charges against Sudan President Omar al-Bashir, African governments, acting within the framework of the African Union (AU), issued a number of declarations expressing increasing discontent about the process of the ICC on the continent.

The recent surge in the AU's opposition to the ICC arose with specific reference to the ongoing cases against the newly elected leaders of Kenya, President Uhuru Kenyatta and Vice-President William Ruto.

The investigation by the ICC in Kenya is regarding the 2007-2008 post- presidential election violence. The Electoral Commission of Kenya officially declared that the incumbent President Mwai Kibaki had been re-elected; supporters of the opposition candidate Raila Odinga accused the government of electoral fraud and rejected the results. A series of protests and demonstrations followed, and fighting-mainly along tribal lines-led to many deaths, injuries and displacements. Kenyatta and Ruto who were on opposite sides during the violence, have joined hands now after the current elections. Kenyatta and William Ruto, are accused of orchestrating this large-scale violence. After failed attempts to conduct a criminal investigation of the key perpetrators in Kenya, the matter was referred to the International Criminal Court by Waki commission, a commission which was established for the Inquiry into the Post-Election Violence. The indictments relating to post-2007 election violence in Kenya were the first instances of the ICC proactively targeting an African leader.

The government of Kenya and the National Assembly both attempted to stop the ICC process. The government appealed to both the United Nations Security Council and the Court itself regarding the admissibility of the case. The National Assembly voted in favor of removing Kenya as a State Party to the Rome Statute, the International Treaty which established the ICC. Despite this opposition, the accused cooperated with the proceedings and attended preliminary hearings in The Hague.

In another letter addressed to the ICC, the AU reiterated its earlier communications with the court and requested the court "to allow the Head of State of Kenya and his Deputy to choose the sessions they wish to attend", having regard to the Constitutional obligations that they are required to discharge as leaders of Kenya's government. Following the ICC's response, that the request the AU made does not constitute a request legally presented within the court's framework, the AU called for a Summit to debate the future of Africa's relationship with the ICC.

In light of this discontent, the agenda of the Summit challenged not only the legitimacy but also the very future of the ICC. The lack of confidence that African member states expressed could lead to reluctance on their part to co-operate with the ICC. This seriously threatened the ICC's ability to effectively and successfully adjudicate these cases. Although it was prominent on the agenda of the AU summit, the mass withdrawal of African member states from the ICC was an unlikely outcome.

A resolution was proposed by African states at UNSC (United Nations Security Council) to suspend the trial of President Uhuru Kenyatta and his deputy William Ruto for a year. Seven Council members voted in favor of the text (Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, and Togo), none voted against, and 8 abstained (Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom, United States). However, lacking the requirement of nine affirmative votes, the resolution failed. The draft was, therefore, not adopted. The resolution put forward by Rwanda, with the backing of the African Union, complained that the ICC trials were distracting President Kenyatta and his deputy, William Ruto, from responding to the September attack on the Westgate mall in Nairobi. But for African nations this vote, which they knew would never pass, had larger meaning - it was also a protest against what they see as an institutional bias in the ICC against Africa.

African diplomats called it a watershed moment, complaining that the vote betrayed a lack of trust in Africa. France and Britain, who opposed the resolution, have been upset with this "for us or against us" rhetoric. They're worried about a rift opening up. There was an angry reaction from African diplomats to the voting. They said it would change the way the continent interacts with the International Community. The representative of the United States said the Assembly of States Parties to the Rome Statute, which oversaw the Court's administration, would meet to help address outstanding issues. Since the Court and the Assembly were the proper venues for addressing the concerns of Kenya and the African Union, the United States abstained rather than voting against the draft resolution. France's representative said the vote had been unnecessary when the Council was in the midst of consultations with African States. The United Kingdom's representative stressed that the sponsors had failed to establish the Charter VII threshold beyond which the Court's proceedings against the Kenyan leaders would pose a threat to International peace and security. Guatemala's representative said it was offensive to suggest that those who had not voted in favor of the draft were somehow against Africa. The Russian Federation's representative said African Countries had presented compelling arguments at a critical time for people in Kenya, whose military was playing a key role in Somalia. Their request did not undermine the integrity of the Rome Statute, and there had been no attempt to turn them against the Court. Rwanda's representative emphasised that the Council was indeed the proper place to discuss the issue, and expressed his delegation's deep disappointment at what had transpired.

The vote undermined the principle of sovereign equality and confirmed the long-held view that International mechanisms were manipulated to serve select interests. Article 16, which refers to deferral of investigation or prosecution, had never been meant to be used by an African State; it appeared to be a tool used by the Western Powers to "protect their own", he added. The representative of Ethiopia spoke in the country's capacity as current Chair of the African Union, stressing that the Rome Statute's Article 16 gave the Council authority to defer cases.

The Assembly of State Parties (ASP) has now approved three amendments to the ICC rules affecting the cases of President, Uhuru Kenyatta and Deputy President, William Ruto. The ASP allowed an amendment to Rule 68 that will accept prior recorded evidence. Kenya successfully lobbied the ASP delegates for an insertion to rule 134 that will allow Uhuru and Ruto to be represented by their lawyers and be away from their trials, if the trial court agrees. Also the Rule 100 has also been replaced by a new rule to allow a change of venue for the trial.

The United States welcomed the amendments because they will protect the rights of both defendants and victims, and ensure that the trials continue without delay. During the assembly and break-out meetings, some delegates argued that such an amendment would entrench impunity and undermine the ICC. MPs from Kenya attending the ASP have welcomed the decision to amend the ICC rules. Justice and Legal Affairs Committee chairman, Samwel Chepkonga says Uhuru and Ruto will now be able to perform their duties as the ICC cases proceed in their absence.

The ICC's continuing legitimacy problems have been compounded by the Kenyan situation. A central part of Kenyatta and Ruto's Defence have been conducted outside the courtroom in the Court of public opinion. Opponents for the ICC claim that, ICC only investigates African leaders while apologists to ICC believe, this is not strictly true, and nor it is completely the Court's fault. Its hands are tied by a complicated referral process which means, only crimes in the very weakest or unpopular states can be investigated. The AU-ICC confrontation is likely to continue unless an amicable compromise is arrived at. ICC is no longer about finding justice for the victims as many wrongly assume and believe; rather the process is now about whether an ICC faced with prosecuting cases that don't belong there, can do so and render a verdict that can be deemed fair and just.

(The writer is a Research Intern at Observer Research Foundation, Delhi)

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