Africa Versus Icc Nyu Scps (1)

8/11/2019 Africa Versus Icc Nyu Scps (1)

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Africas Case Against the ICC John Mukum Mbaku, J.D., Ph.D.

Brady Presidential Distinguished Professor of EconomicsWeber State University & Nonresident Senior Fellow, The

Brookings Institution


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In June 2009, Comoros, Djibouti, and Senegal called on

African States Parties to withdraw en mass from theStatute in protest against allegations that the ICC wastargeting Africans. This declaration was specifically inreference to Sudanese Pres. Omar al- Bashirs indictment .May 2013: At the end of a three-day summit held in AddisAbaba, the AU accused the ICC of being racist and statedthat the ICC was prosecuting only African cases.At this summit, AU announced its support of Kenyasapplication for legal proceedings against PresidentKenyatta and Deputy Pres. Ruto to be returned to Africa.

The African Union & The ICC (1)


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October 12, 2013: The Assembly of the African Union

passed a resolution:To reiterate its commitment to fight impunity, butThat sitting heads of state shall not appear before anyinternational court during their term of office.Indictment of sitting heads of state by the ICC, the AU argued,would undermine the sovereignty, stability, and peace of

member states.The AU called on the UN Security Council to suspendproceedings against Kenyan President Kenyatta and DeputyPresident William Ruto on the basis of Art. 16 of the RomeStatute.



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The AU claims that ICC activities with respect to Africaundermine African efforts to facilitate the early resolutionof conflicts in the continent, and point to the DarfurConflict and the indictment of Omar al-Bashir as examples.Ugandas Deputy AG & Minister of State for Justice andConstitutional Affairs spoke on behalf of the AU at the 12Assembly of States of the Rome Statute of the ICC at TheHague, Nov. 21, 2013 and declared as follows:



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The AU recognizes the need to combat impunity, promote

democracy, the rule of law and good governancethroughout the continent as enunciated in the AUsConstitutive Act.The AU believes that if Kenya does not qualify for use ofArt. 16 of the Rome Statute and subsequently the principleof complementarity, then no other State Party will.The AU strongly believes that if Kenya does not qualify forArt. 16, then the UN Security Council cannot legitimatelyand constructively resort to it and the ICC would no longerbe a court for all but only one designed to deal withAfricans in the most rigid way.

The African Union & The ICC (4)Dr.Ruhindis Speech


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The AUs position is that the Kenyan situationdemands that the UN Security Council exercise itsmandate under Art. 16 of the Rome Statute, read ittogether with Chapter VI of the UN Charter, and allowKenya to move forward and deal with the challengesconfronting it.Dr. Ruhindi affirmed the AUs strong belief that Africans should be allowed to solve their ownproblems .

The African Union & The ICC (5)Dr.Ruhindi


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The Parliament of Kenya, in response to the indictment ofKenyatta and Ruto, has voted in favor of withdrawing from theICC.The Kenyan decision to withdraw from the ICC is supported by:

UgandaPresident Museveni accuses Western countries of usingthe ICC to install leaders of their choice in Africa and eliminatethose they dont like. Ethiopia, Rwanda &TanzaniaSouth Africas ANC party has stated that the ICCs indictment ofKenyatta and Ruto is a judicial coup and that there is clearevidence that the ICC is used more to effect regime change in themajority of cases.

Kenya and Other African Countries &the ICC


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Ethiopia: Minister of Foreign Affairs, Dr. TedrosAdhanom Ghebreyeusus, has urged Africans to speakwith one voice and send a strong message to theinternational community on the issue of thecontinents relation with the ICC.

Other African countries supportingKenyas decision to withdraw from

the ICC


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Nigeria: Minister of State for Foreign Affairs,Nurudeen Muhammad, distanced himself from Kenyaand argued that Kenya had its own reasons for actingagainst the ICC.Ghana: President Mahama said the ICC had done afantastic job in bringing some people who havecommitted genocide and mass murder to justice. Others: Bostwana, Cte dIvoire, Mali, and TheGambia.

Some African Countries do notsupport Kenyas approach to the ICC


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The letter mentions four flaws in ICC procedures, which

the AU believes could undermine the rights of defendantsand thereby offend the principles of international justice:(1) The ICC fails to adhere to stringent evidentiary standards andinvestigative techniques critical to the collection of reliableevidence this flaw arises from the fact that the ICC outsourcescritical functions of the Courts Office of The Prosecutor(OTP) to unregulated and often privately funded NGOs andindividuals who are not accountable to the Court or to the judicial process and may have incentives beyond or inimical tothis process.

January 29, 2014 Letter from the AUto the ICC


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(2) The impact of permissible funding from privatesources on the justice delivered by the Court privatefunding can significantly influence the Courtsimpartiality or give the appearance of doing so.(3) The Courts grounding is in principles ofhumanitarian and not criminal law a prominentfeature of the ICC is that while it is grounded inprincipals of humanitarian law, it purports toinvestigate and judge essentially criminal cases.

January 29, 2014 Letter from the AUto the ICC (2)_


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(4) The ICC Office of The Prosecutor, using propriomotu jurisdiction, can initiate a case without referralfrom a member State or the UN Security Council.Without a referral from a member State, the OTP runsthe serious risk of lack of cooperation, whichundermines the integrity of the investigation, andwithout a referral from the UN Security Council, theOTP discretion is unchecked and lacks the focus andpolitical support obtained by having the UNSC narrowthe issues.

January 29, 2014 Letter from the AUto the ICC (3)


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Does it mean that Africans are the only ones in the world

who commit the most insidious war crimes and crimesagainst humanity?Some are quoting former UK foreign minister Robin Cookwho said of the ICC: If I may say so, this is not a court setup to bring to book prime ministers of the United Kingdomor presidents of the United States.

Some Africans argue that the ICC is not unlike the colonialorder established in Berlin in 1884-1885then, one of itsmost important missions was to protect vulnerablegroups, one of which included citizens of the DarkContinent. Supporters of the ICC make similar claims.

What Africans and their supportersare saying about the ICC (1)


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The Rome Statute was driven, to a great extent, by

Western-based NGOs, with only marginal contributionsfrom official country representatives.Out of 189 member countries of the UN, only 60 wereneeded to approve the Rome Statute, an extremely lowbar. This is extremely problematic, especially given thefact that the ICC has worldwide jurisdiction, including over

countries that are not signatories to the ICC Statute.Important global players (e.g., United States, China, India,Japan, and the Russian Federation) are notably absentfrom the agreement establishing the ICC. What happens ifone of these countries commits war crimes in Africa?



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Ratification of the Rome Statute was undertaken primarily

with the help of States that are not considered majorplayers in the global system.Over 70% of the worlds population is outside the CourtsjurisdictionIndia (1.27 b);China (1.390 b); Indonesia (230mil.); Russia (150 mil.);Japan (125 mil.);USA (312 mil.).The ICCs members represent only 27% of the worldspopulation; yet, the ICC purports to be a universal courtexercising universal jurisdiction.



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Given Africas traumatic experience with the very same

colonial powers that now, in effect, direct the ICC, it is anunfortunate case of dj{ vu (Prof. Mahmood Mamdani). The EU provides about 60% of the ICCs funds Africansbelieve that there is a close relationship between fundingand influence over the activities undertaken by the Court.

Key staffing positions that are responsible forinvestigations and the preparation of cases are held mostlyby EU citizens.The ICC has been drawn into domestic politics.



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Dr. David Hoile, an expert on the ICC and African affairs:

Says the ICC is nothing more than a European Court.He identifies several flaws in the ICC as an international legalinstitution:

The ICC Statute was rushed through in four weeks by WesternNGOs with very little time given to effective contemplation,especially of the type needed to establish laws that would affectso many people and the judicial systems of many countries. The UN Security Council is granted special prosecutorial rightsto refer or defer an ICC investigation or prosecution, effectivelyinserting political interference into the Courts terms ofreference.

What some expects are saying aboutthe ICC (Dr. David Hoile)


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Five permanent members of the UN Security Council,which has significant political control of the ICC, arenot even members of the ICC.The ICC is unaccountable to any public entity.

What some expects are saying aboutthe ICC (Dr. David Hoile): ICC Flaws


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USA:Washington objected to the Court because of a perceivedlack of adequate checks and balances on the powers ofthe ICC prosecutors and judges, as well as the lack of dueprocess and the absence of juries.

No effective external check on The Prosecutor there isinsufficient protection against politicised prosecutions orabuses. This is essentially what African countries arecomplaining of.

What ICC opponents are sayingabout the ICC:


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The Rome Statute makes the ICC subordinate to theUN Security Council and in effect, the UNSCspermanent members who can interfere politically inthe ICCs workthese countries can block ICCproceedings or refuse to refer cases to the ICC.

Indias Objections to the ICC

Documents

Africa Versus Icc Nyu Scps (1)