Lot's Wife Edition 8 2013
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SUBHEADING<br />
THE INTERNATIONAL CRIMINAL COURT AND<br />
AFRICAN STATES:<br />
A Troubled Relationship<br />
Tamara Preuss<br />
The birth of the International Criminal Court (ICC) was hailed around<br />
the world as a victory for international justice. It was hoped that its<br />
creation would spell the end of impunity for individuals guilty of the<br />
worst crimes known to the international community.<br />
The ICC was created by an international treaty known as the<br />
Rome Statute in 1998. The Court is historically unique as it is the first<br />
permanent international criminal court. The court exercises jurisdiction<br />
over three crimes; namely, war crimes, crimes against humanity and<br />
genocide. Currently, 122 states are party to the Rome Statute with the<br />
notable exceptions of the United States, China, Russia and Israel.<br />
In spite of the admirable aspirations that lead to the foundation<br />
of the Court it has been plagued with problems concerning state<br />
cooperation, funding and legitimacy. The Court’s relationship with the<br />
African Union (AU) and the 34 African states that are party to the<br />
Rome Statute has been particularly problematic.<br />
At an extraordinary summit of the AU, which took place on<br />
the 11-12th of October, AU states considered the future direction of<br />
their relationship with the ICC. The state parties declared that no<br />
sitting government officials should be brought before the ICC, a direct<br />
contradiction to the Rome Statute. They also requested that the ICC<br />
defer the case against the Kenyan President Uhuru Kenyatta.<br />
The long-term success of the Court depends on whether it can<br />
resolve its issues with the AU and African states and regain legitimacy as<br />
an arbiter of international justice.<br />
One charge that has been consistently leveled at the Court is that<br />
it is unfairly biased against Africans. All of the cases currently before<br />
the Court involve individuals of an African nationality. The AU argues<br />
that the ICC targets Africans and ignores atrocities committed in other<br />
regions.<br />
The AU’s argument ignores the fact that the Court may only<br />
consider a case where the national court of the accused is unable or<br />
unwilling to do so. This implies a situation in which a state’s judicial<br />
system has either collapsed or sided with the accused. Arguably, this<br />
occurs disproportionately in African states hence the overrepresentation<br />
of African individuals at the Court. Indeed, four of the eight situations<br />
currently being considered by the Court were referred by the state itself.<br />
Nevertheless, the ICC should take the AU’s concerns seriously.<br />
The declaration that no sitting head of state should appear before the<br />
ICC severely limits its capacity to deliver justice.<br />
In particular, two cases have incited disagreement between the AU<br />
and the ICC. These are the indictments of Sudanese President Omar<br />
al-Bashir and the Kenyan President Uhuru Kenyatta.<br />
Al-Bashir was indicted in 2009 for his alleged role in atrocities<br />
committed in Darfur following a referral of the situation to the ICC by<br />
the United Nations Security Council. AU member states agreed to not<br />
enforce al-Bashir’s arrest warrant if he were to visit their country and<br />
they unsuccessfully petitioned the Court to defer the case. They argued<br />
that the need to resolve the conflict in Darfur should take precedence<br />
over justice.<br />
The concerns of the AU bring to the fore the issue that sometimes<br />
peace and justice are irreconcilable. From the AU’s perspective, the<br />
indictment provides an incentive for al-Bashir to cling to power, as<br />
amnesty is no longer a possibility. Should the international community<br />
place more importance on the punishment of a few individuals than a<br />
peace agreement that could resolve a long and bitter civil conflict? The<br />
ICC has firmly decided in favour of this proposition; however perhaps<br />
they should reconsider their position. In some situations, the ICC should<br />
allow a society embroiled in civil conflict the chance to establish peace<br />
before indicting those responsible for international crimes.<br />
The ICC indicted the current President of Kenya, Uhuru<br />
Kenyatta, in 2011 for his alleged role in the violence that followed the<br />
2007 Kenyan presidential election. In response, the Kenyan National<br />
Assembly passed a motion to withdraw Kenya from the Rome Statute<br />
and petitioned the United Nations Security Council to defer the<br />
case. Kenyatta has thus far cooperated with proceedings but there is<br />
speculation that he will not appear at The Hague when his trial starts on<br />
12 November <strong>2013</strong>. The fact that Kenyatta was democratically elected<br />
whilst facing trial by the ICC shows that a majority of Kenyans do not<br />
support the trial.<br />
The ICC must improve its relationship with Africa if it is to retain<br />
legitimacy as an international arbiter of justice. Just how this may be<br />
achieved is difficult to determine. The ICC’s past attempts to establish<br />
an African liaison office have been rejected by the AU but they must<br />
persist. The Court must actively engage with African governments<br />
to build relationships based on trust and understanding. In addition,<br />
the Court must recognise that in some situations peace must is more<br />
important than justice.<br />
LOT’S WIFE EDITION 8 • <strong>2013</strong><br />
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