CENTRE FOR FOREIGN
RELATIONS
DAR ES SALAAM
A CONCEPT NOTE
AFRICA’S DISCONTENT WITH
THE INTERNATIONAL CRIMINAL COURT: IS WITHDRAWAL THE BEST OPTION?
As part of its
NATIONAL DIALOGUE PROGRAMME the
Centre for Foreign Relations, in collaboration with the Association of Retired
Tanzania’s Ambassadors, are organizing a
panel discussion on the topic: AFRICA’S DISCONTENT WITH THE INTERNATIONAL
CRIMINAL COURT: IS WITHDRAWAL THE BEST OPTION? The discussion will take place
on 27th March, 2014 at the Mwalimu Nyerere Conference Centre at 10
a.m. – 13 p.m.
The discussion
will look at the historical background of the International Criminal Court
(ICC) focusing on the rationale for the Court’s existence, its establishment
process and its comprehensive jurisdiction. At the same time the discussion
will look at the Court’s institutional structure focusing on its membership and
its organs such as the Assembly of States Parties, the Presidency, the Judicial
Divisions, the Office of the Prosecutor and the Registry. The discussion will
also dwell on the Court’s functional procedures and analyze its performance so
far.
The main
debate will be on Africa’s dissatisfaction with the ICC, focusing on the issues
and arguments for their dissatisfaction. The discussion will conclude by
analyzing whether withdrawal from the ICC is the best option for the Africa’s
States Parties. If not, what are the alternative options worth considering?
FACTUAL BACKGROUND
Establishment
The
International Criminal Court, commonly referred to as the ICC, is a permanent
tribunal to prosecute individuals for genocide, crimes against humanity, war
crimes and the crime of aggression.
The ICC was
created by the Rome Statute which was adopted on 17th July, 1998 by
a vote of 120 to 7, with 21 countries abstaining. The 7 countries that voted
against the treaty were China, Iraq, Israel, Libya, Qatar, the United States
and Yemen.
The Rome
Statute became a binding treaty on 11th April, 2002, when the number
of countries that had ratified it reached 60. The Statute legally came into
force on 1st July, 2002, and the ICC can only prosecute crimes
committed after that date. The Court has its headquarters in The Hague,
Netherlands, but its proceedings may take place anywhere. It is intended to
complement existing national judicial systems, and may only exercise its
jurisdiction when national courts are unwilling or unable to investigate or
prosecute such crimes.
Currently, 122
states are states parties to the Statute of the Court, including all of South
America, nearly all of Europe, most of Oceania and more than half of the
countries of Africa. A further 31 countries, including Russia, have signed but
not ratified the Rome Statute. Three of these states – Israel, Sudan and the
United States – have informed the United Nation Secretary General that they no
longer intend to become states parties and, as such, have no legal obligations
arising from their former representatives’ signature of the Statute.
Forty one
United Nations member states have neither signed nor ratified or acceded to the
Rome Statute.
Performance
To date, the
Prosecutor has opened investigations into eight situations in Africa: the
Democratic Republic of Congo (DRC); Uganda; the Central Africa Republic (CAR);
Darfur; Sudan; Kenya; Coté d’Ivoire and Mali. The Court’s Pre – Trial Chambers
have publicly indicted 36 people. The ICC has issued arrest warrants for 27
individuals and summonses to 9 others. Eight persons are in detention.
Proceedings
against 28 are ongoing: ten are at large as fugitives, five have been arrested,
but are not in Court’s custody, including one who is appealing an order
referring the case against him to national authorities, seven are in the pre –
trial phase, another four are at trial, one is appealing his sentence, and one
individual’s acquittal is being appealed by the prosecutor. Proceedings against
eight have been completed: four have had the charges against them dismissed,
one has had the charges against him withdrawn, and three have died before
trial.
As of December
2013, the Court’s first trial, the Lubanga trial (Thomas Lubanga Dyilo) in the
situation of the DRC is in the appeals phase after the accused was found guilty
and sentenced to 14 years in prison and a reparations regime was established.
The Katanga – Chui trial (Germain Katanga and Methieu Ngudjolo Chui) regarding
the DRC was concluded in May 2012. Mr. Ngudjolo Chui was acquitted and
released. The Prosecutor has appealed the acquittal. The decision regarding Mr.
Katanga is due to be announced on 7th February, 2014. The Bemba
trial (Jean – Pierre Bemba) regarding the CAR is ongoing with the defence
presenting its evidence.
The fourth
trial in the case of Ruto – Sang (The Vice President of Kenya, Mr. William Ruto
and a Kenyan journalist, Joshua Arap Sang) regarding the situation in Kenya,
began on 10th September, 2013. The Kenyatta trial (that of President
Uhuru Kenyatta of Kenya) will begin on 5th February, 2014. Another
trial Chamber for the Banda trial (Abdallah Banda Nourain) in the situation of
Darfur, Sudan, has been established with the trial scheduled to begin in May
2014. The decision on the confirmation of charges in the Laurent Gbagbo (the
former President of Coté d’Ivoire) in the Coté d’Ivoire situation is pending
after hearings took place in February 2013 and after the decision was adjourned
to give the Prosecutor more time to present compelling evidence. The
confirmation of charges hearing in the Ntaganda case (Bosco Ntaganda) in the
DRC situation is scheduled to begin in February 2014.
AFRICA’S DISSATISFACTION WITH THE INTERNATIONAL
CRIMINAL COURT
Africa’s
discontent with the ICC started immediately following the ICC’s indictment of
African leaders. In 2009 the ICC indicted the Sudan’s President, Omar al –
Bashir, for genocide and war crimes in Darfur. Immediately the African Union
asked the United Nations Security Council (UNSC) to quash the ICC charges
against Bashir on the grounds that they were inhibiting the peace process in
Darfur. When the request was refused by the UNSC the AU requested that Bashir’s
prosecution should be deferred by one year in accordance with Article 16 of the
Rome Statute, on the argument that he was instrumental in the peace process in
Darful. This request was also not accepted by the UNSC.
In March 2011
Uhuru Kenyatta and William Ruto (who latter became President and Vice President
respectively, following the 4th March, 2013 general elections) were
indicted by the ICC and charged with committing crimes against humanity following
the 2007 – 2008 Post – Election Violence. On 23rd January 2012, the
Pre – Trial Chamber issued a Decision on the Confirmation of Charges, finding
that there was sufficient evidence against the accused to allow the matter to
proceed to trial.
Initially,
following their indictment, both Kenyatta and Ruto made a point of officially
cooperating with the Court, showing up in The Hague when required. It is
critical to note that Kenyatta’s and Ruto’s indictment became an African issue
only when they were elected president and vice – president, respectively, after
the 4th March, 2013 general elections. The implication here is that
the Kenyan President would be the first sitting head of state to be prosecuted
in the international court. This created a problem to African leaders, fearing
that the Kenyatta’s prosecution would set a serious precedence with far –
reaching implications for other African leaders.
At the
national level, on 6th September 2013, the Kenyan Parliament voted
in favour of a motion urging the government to urgently undertake measures to
immediately withdraw its membership from the Rome Statute. It was on the basis
of the Parliament’s vote that the Government of Kenya requested the African
Union Commission (AUC) to convene an Extra – Ordinary session of the African
Union (AU) to deliberate on the Africa’s relationship with the ICC.
The Kenya’s
request to hold an Extra – Ordinary Summit was endorsed by the AU Ministerial
Consultative Meeting held in New York on 27th September, 2013 in the
margins of the 68th Session of United Nation General Assembly (UNGA).
The Ministerial meeting called on the AU member states to continue providing a
strong political support to the Government of Kenya for the deferral for one
year of the proceedings initiated against the President and the Vice President
of Kenya by the UNSC in accordance with Article 16 of the Rome Statute.
At the
continental level, the AUC convened the Extra – Ordinary Summit on 12th
October, 2013 amid speculation that African states parties might withdraw en mass
from the ICC. No specific recommendation on withdrawal was tabled during the
session. However, it hovered in the air as the option of last resort.
Among the
specific decisions made by the Extra – Ordinary Summit included the following:
-
That no charges should commence or continue before any
International Court or Tribunal against any serving AU Head of State or
Government or anybody acting or entitled to act in such capacity during their
term of office;
-
That the trials of President Kenyatta and Deputy
President Ruto should be suspended until they complete their terms of office;
-
That Kenya should send a letter to the UNSC requesting
for deferral, in conformity with Article
16 of the Rome Statute, of the proceedings against the President and Deputy
President of Kenya;
-
To request the ICC to postpone the trial of President
Uhuru Kenyatta and suspend the proceedings against Deputy President William
Ruto until such time as the UNSC considers the request by Kenya for deferral;
and
-
That President Uhuru Kenyatta should not appear before
the ICC until such time as the concerns raised by the AU and its Member States have
been adequately addressed by the UNSC and the ICC.
At the
international level, neither the ICC nor the UNSC heeded to the AU’s decisions.
CRITICAL QUESTIONS FOR DISCUSSION
The following
are some of the critical questions for discussion:
1.
Taking into consideration the objectives of the ICC’s
existence, are the African leaders’ concerns with the ICC a true representation
of the feelings of the ordinary Africans?
2.
What is it exactly that the African leaders are
complaining against the ICC?
3.
Is the Rome
Statute fundamentally flawed from the start on the issue of prosecuting sitting
heads of state? If so, what should be done to rectify the situation?
4.
African leaders have decided to use the AU as the
forum to discuss their grievances against the ICC. Is the AU an appropriate
platform to discuss their discontents with the ICC?
5.
In the case of Kenyatta and Ruto the African States
have recommended that their cases should be held in East Africa rather than in The
Hague. Is this a call for a mere change of VENUE or a call for an alternative
JUDICIAL MECHANISM for the prosecution?
6.
Given the fact that all Africa’s decisions and
requests have not been heeded to by neither the ICC nor the UNSC, what is the
way forward for Africa, particularly for the African States parties to the ICC?
Is withdrawal the best option?
7.
What is the best way for the ICC to intervene to
protect the victims in Africa amid the accusations that it is targeting the
accused?
FORMAT FOR THE DISCUSSION
The discussion
will be introduced by a group of three Panellists. The first will cover the
ICC’s establishment process and the rationale for its existence. The second
will focus on the Court’s jurisdiction, its institutional structure, as well as
its functional procedures and its performance so far. The third Panellist will
deal with the issue of African states’ discontent with the ICC, looking at the
issues and the arguments involved before focusing on the way forward.
An open discussion
will follow after the three presentations by the Panellists. The whole
discussion will be co-chaired by a representative from the Centre for Foreign
Relations (CFR) and a representative from the Association of Retired Tanzania’s
Ambassadors (ARTA).
** _______________ **
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.