Africa wants out of ICC but lacks capacity to hold trial

Former Chadian dictator Hissene Habre is escorted into the courtroom in Dakar, Senegal for his trial on July 20, 2015. AFP PHOTO 

By FRED OLUOCH

In Summary

• African countries advocating withdrawal from the Rome Statute are far from establishing local mechanisms to deal with international crimes as an alternative to the International Criminal Court.
• But the biggest success in Africa was the International Criminal Tribunal of Rwanda that sat in Arusha for 20 years and convicted 61 people out of the 93 who were indicted for the 1994 genocide, while 14 were acquitted on appeal.

African countries advocating withdrawal from the Rome Statute are far from establishing local mechanisms to deal with international crimes as an alternative to the International Criminal Court.

Kenya, Sudan, South Africa, Burundi, the Gambia and Uganda have been leading the campaign for mass withdrawal from the Rome Statute, which created the ICC, but lack the political will to deal with crimes against humanity, war crimes and possible genocide. Sudan is not a signatory to the Rome Statute but President Omar Al Bashir has been indicted at the Court for war crimes in Darfur.

According to Reed Brody, the human rights lawyer who spearheaded the case against former Chadian president Hissene Habre, there is no political will across the continent to use local mechanisms even in countries where they exist, especially when the crimes are allegedly committed by state actors.

“It is hypocritical to embrace the ICC when it goes after the opposition as the result of government referrals, but to attack the Court when it investigates those holding state power,” said Mr Brody.

Uganda’s President Yoweri Museveni referred Joseph Kony, leader of the rebel Lord’s Resistance Army to ICC in 2004 but has lately become its leading critic.

South Africa and Burundi have given notice to the United Nations of their intention to withdraw from the Rome Statute, while the Gambia’s President Yahya Jammeh has said that he will follow suit.

Up until now, only Mr Habre and former Liberian president, Charles Taylor have been tried for crimes committed under their reign using African mechanisms.

Mr Habre was in June sentenced to life in prison by an Extraordinary African Chambers set up by the African Union and sitting in Senegal for crimes against humanity, torture and sexual slavery. Mr Taylor was in 2012 sentenced to 50 years by the UN-backed Sierra Leone Tribunal sitting at The Hague for security reasons.

READ: Habre sentencing shows the power of African courts

Former Ethiopian dictator Mengistu Haile Mariam lives in exile in Zimbabwe and is protected by the government of President Robert Mugabe, after being sentenced to death in absentia by an Ethiopian court.

But the biggest success in Africa was the International Criminal Tribunal of Rwanda that sat in Arusha for 20 years and convicted 61 people out of the 93 who were indicted for the 1994 genocide, while 14 were acquitted on appeal.

Gitobu Imanyara, a Nairobi-based human-rights lawyer told The EastAfrican that while these instances have shown that Africa can bring to account those who commit international crimes, it is unlikely that the continent will see similar trials in the near future.

“Given the current calibre of African leaders who are bent on fighting the ICC to ensure they insulate themselves from prosecution once they leave power, it is unlikely that new initiatives to offer justice to the victims will be forthcoming,” said Mr Imanyara.

Kenya’s President Uhuru Kenyatta — whose case and that of his deputy William Ruto were terminated — is leading the campaign for continued withdrawal by the other 32 African parties to the Rome Statute. He has a strong ally in President Al Bashir, whose warrant of arrest is still in force.

During President Kenyatta’s visit to Khartoum at the end of October, the two leaders lauded the recent developing trend in combating ICC as manifested in the decision by some African countries to withdraw from the Court and its Statute. However, Botswana and Senegal have taken the lead in defending the ICC and are opposing mass withdrawal. Other African states like Nigeria, Algeria, the Democratic Republic of Congo, Senegal, Tunisia, Cape Verde, Cote d'Ivoire and Burkina Faso, have also opposed withdrawal. They are advocating that Africa initiate changes within ICC during the next Assembly of State Parties set for the end of November.