15 December 2011
The International Criminal Court which recently elected Gambia's Ms Fatou Bensouda to take over from Argentina's Luis Moreno-Ocampo as chief prosecutor, celebrates its 10th anniversary next year. Africa remembers Moreno-Ocampo's over-zealousness while executing his duties.
Ms Bensouda called the ICC "a truly unique institution", and true to her description, the ICC's uniqueness has shown itself in that its formal investigations are in Africa where many of the continent's leaders say Africa is being "unfairly targeted".
The ICC has also come under fire for its selective administration of justice, and demonstrating that some animals are more equal than others.
The ICC is also under fire for corrupting justice and abusing international law. Although Zimbabwe is not a signatory of the Rome Statute that governs the 120-member ICC, Zanu-PF last week passed a resolution at its 12th National People's Conference in Bulawayo, condemning the selective arrest of sitting and former leaders from developing nations.
The resolution called for an end to the arbitrary arrests and also called for reforms in the decade-old organisation. This was in keeping with President Mugabe's perennial calls for the reformation of the United Nations which he argues is being abused by powerful nations to undermine the interests of weaker states.
In the past decade, the ICC has targeted African leaders arresting them and/or issuing them with warrants of arrest. The ICC, with headquarters in The Hague, has clearly demonstrated that it is yet again another Western-dominated institution whose mindset is that crimes against humanity are only committed in Africa, and by African leaders.
It has also proved that its role is to discharge the desires of powerful Western nations such as the United States of America and her allies. To date, three current or former African leaders have been charged by the ICC - Charles Taylor (Liberia), Laurent Gbagbo (Cote d'Ivoire) and Omar al-Bashir (Sudan).
The late Libyan leader Muammar Gaddafi was also targeted by the ICC. There was also pressure that his son Saif al-Islam who was captured by Libya's interim government be transferred to the ICC. Africa awaits the ICC's response to Col Gaddafi's daughter requesting it to investigate how her father and brother were killed. The ICC has also reported Malawi to the United Nations Security Council for failing to arrest the Sudanese leader in October. Its information minister Patricia Kaliati maintained, "When we were signing the Rome Statute, we wanted to be part of the international community, not to be targeted. We can as well withdraw our ICC signature."
South African president Jacob Zuma also expressed his displeasure with the manner it handles African affairs. When it issued a warrant of arrest for Col Gaddafi, president Zuma's spokesperson Zizi Kodwa said, "President Zuma is extremely disappointed and concerned over the issuing of a warrant by the International Criminal Court against Colonel Gaddafi. It's unfortunate that the ICC could take such a decision while the African Union through its ad hoc committee has done so much."
An African Union summit this year decided not to carry out warrants of arrest issued by the ICC against African leaders. The ICC, like other international bodies has shown that it is not prepared to work with African governments on a partnership basis. When Gabon, South Africa and Nigeria voted with them for a no-fly zone in Libya, NATO proceeded to bombard Libya and effect an illegal regime change. The AU's efforts in finding a lasting solution in the Libyan crisis were immaterial. In the end, the AU was made to rubber-stamp NATO's actions.
It is in this context that while we congratulate Ms Bensouda for landing this big post, Africa and other developing nations have to understand that like her predecessor Moreno-Ocampo she is entering a straitjacket position, where Africa's interests no matter how she tries, will not be the priority.
He who pays the piper calls the tune. This is Ms Bensouda's predicament. We doubt very much whether she will have the capacity and support from ICC's funders to effect changes that are desirable for developing nations.
It is also important for Africa in particular to know that unless they push for reforms, Bensouda as a technocrat will be working for the interests of the ICC, and not necessarily African interests.
She said so in her acceptance remarks: "But let me stress: I will be the prosecutor of all the states parties in an independent and impartial manner". She added, that the court was "changing international relations forever."
We are not saying that the upholding of the rule of law should not be a major democratic tenet every leader should exercise; and, neither are we condoning crimes against humanity, by any leader.
If Africa shows unity of purpose, then it will be able to give its input on the manner of reforms they think are feasible. Some quarters have suggested decentralising the ICC's operations at country and/or regional level.However, it is the double standards that we decry. When Amnesty International called for the arrest of George W Bush and Tony Blair for war crimes in Iraq and Afghanistan, the ICC did not act. The United States is not a signatory of the Rome Statute, but the UK is. Africa has also shown that it is divided on the issue and does not speak with one voice. If this attitude prevails, the likelihood of the ICC continuing to target Africans will continue.
But the bottom line is that the situation currently prevailing at the ICC works against African interests, and the positions that we get are window dressers to enable powerful nations to do as they wish. The ICC will also be used against a resource-rich Africa.