Africa and the ICC - George Mukundi

By George Mukundi | March 06th, 2012
Fatou Bensouda, Prosecutor-Elect ICC

(Read the full article here or download it below) - By Gerge Mukundi, Advocacy Director of the Centre for the Study of Violence and Reconcililation - The intense interest and huge hype generated by the search for a successor to Moreno Ocampo as the Prosecutor of the International Criminal Court (ICC) by state parties, powerful non-member states and international justice actors is telling. The position is not only pivotal in terms of strengthening international criminal justice but – as Ocampo demonstrated during his nine flamboyant years in office – its holder can also become synonymous with the Court.  While this does have its advantages, Ocampo’s modus operandi attracted a sizeable degree of unease and criticism, particularly from Africa.

Ocampo will officially step down in July 2012 when he will hand over the reigns to his deputy, Fatou Bensouda from the Gambia, who was long a front-runner for the post and emerged in early December as the consensus candidate. Widely regarded as an independent, credible and excellent jurist, there is little doubt that she is fit for the task. The key question – as the sun slowly sets on Ocampo's colourful and controversial tenure and as an African prepares to settle into the hot seat – is whether this change will herald a new dawn in the strained relationship between the Court and Africa?

The answer to that million dollar question is not a simple one given the level of animosity that the Court has attracted from certain quarters in Africa, particularly from the African Union (AU). In fact, it is likely that an African heading up the Court’s prosecutions will not immediately result in any genuine warming of relations between the ICC and the AU as Bensouda’s appointment alone will not resolve a number of outstanding issues. Indeed, her tenure is likely to be even more closely scrutinised as she is an African and was overwhelmingly endorsed by the AU – the continental body that has been most vociferous in its criticisms of, and opposition to, the ICC.

The most emotive of the issues that the Court has to deal with in relation to Africa is the fact – notwithstanding that a majority of AU members (33/54) are state parties to the ICC Rome Statute – that the institution is increasingly viewed as a western plot to impose ‘western’ justice on the continent. There is a perception that the ICC is beholden to Western countries, which are its principal cheerleaders as well as financial backers. In particular, there is the very real feeling that Africa is being unfairly targeted by the ICC – since all the current cases and situations before the Court come from the continent. There appears to be – as former South African President Thabo Mbeki often observes – ‘a determined view by western powers that they have the imperative to determine the future of the continent’.

The role of the United Nations Security Council to refer cases to the Court – a power that has only been exercised so far in relation to Darfur (Sudan) and Libya – has heightened the belief of many on the continent that the Court has become just another tool for western powers, particularly the old colonial powers, to interfere in African affairs. Every time the ICC takes up an African matter – the latest being the appearance before the Court of Laurent Gbagbo, the former President of Ivory Coast, who has been charged with crimes against humanity – questions are raised about the ICC’s lack of action in relation to Gaza, Iraq, Syria or other situations around the globe that seem to present equally legitimate opportunities for the Court to intervene. Yet each time, the silence is deafening. Africa, it appears, is the only continent where the worst international crimes are committed.

But it is not just that the ICC only appears to deal with African matters. It is also – as many argue – that it takes decisions to indict and prosecute individuals without considering the political ramifications or the impact on fragile peace and nation-building processes, for example in Kenya, Sudan and Ivory Coast (where some are saying the prosecution of Gbagbo is simply a case of ‘victor’s justice’). The African Union has officially asked the Security Council to defer both the Sudan and Kenya situations – ostensibly in the interests of peace – but these requests have seemingly fallen on deaf ears.

And the ICC has not helped matters either. It has done little – if anything – to try and resolve some of the disputes or, at the very least, cultivate a constructive relationship with the AU. The ICC’s outreach office has made little impact even in countries that have situations before the Court, while efforts to develop a liaison office with the AU have failed.

So it is clear that the new Prosecutor will have her work cut out for her. She will take over as the Court hears the case against Gbagbo – the first former leader to appear before it – and as demands grow to expand the scope and reach of the Court's fight against impunity to other continents. She will also be expected to bridge the divide with the AU, while still providing victims of crimes against humanity, war crimes and genocide on the African continent with the possibility of justice. She will have a tightrope to walk and it will be very difficult for her to satisfy both the elites who see – or hide behind accusations of – a western plot and ordinary Africans who are crying out for justice.

What is clear is that Bensouda alone cannot repair the damaged relationship between the Court and Africa. As the ICC celebrates a decade since its inception in 2002, it is time for a thorough reflection on its work so far and particularly on the key concerns raised by its critics – such as the perception that it unfairly targets Africa at the behest of western powers. Although the Court has decried any suggestion that its decisions are informed by political considerations, its prosecutorial, investigative and judicial focus on Africa continues to reinforce this perception. And to give the impression to international criminals on other continents that they have nothing to fear from the ‘International Criminal Court on Africa’.

It is time for the Court to take heed of the old maxim that justice must not only be done but must equally be seen to be done – and that it must be done and seen to be done around the world. Otherwise the fight with the AU will go on and it will continue to undermine the credibility of the ICC and the struggle for international criminal justice – as well as the image of the AU and the hopes of victims of international crimes on the African continent. The current dispute benefits no one. Fatou Bensouda will certainly provide a new form of leadership and could help to bring the ICC and Africa closer together. But until the Court starts to prosecute cases from elsewhere, there will be no chance of bridging the current divide.


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