THE ICC AND THE AU: A CALL FOR DIALOGUE

Gambian President Yahyah Jammeh declares Gambia to Leave ICC

In the wake of recent news that Burundi, South Africa and now Gambia are to withdraw from the Rome statute of the ICC, there are, justifiably, tense moments among the legal and wider fraternity that constitutes the so called international criminal justice project: are the steps taken by these nations the beginnings of a mass walk-out by African states (which constitute the single largest continental membership bloc), and can the ICC survive an event of such proportions, or would such a walk-out even matter? The OTP’s Fatou Bensouda, herself a Gambian has already provided an answer to the latter question. In a typically dismissive fashion, she has noted that the ICC will march on regardless. However, a more politically grounded president of the ASP, Sidiki Kaba, has signaled that dialogue should be embraced by all parties to avert a potential disaster, and this is as it should be.

The prevailing narrative on the intended withdrawals and any further potential cases from Africa is the much repeated and equally robustly rebutted notion that the ICC is unfairly targeting African nations in its fight against global impunity, the so called African bias. Both sides of this argument have been so exhaustively prosecuted in contemporary legal and political discourse that any further pronouncements on the argument here would be rather futile. What I propose here is that the problem between the ICC and the disaffected African states lies quite outside of this oft repeated premise, and any attempts to understand it must look both to the attitude of the ICC and to the internal political dynamics of the states concerned.

SA. President Zuma Recently Implicated in State Capture Report

Accordingly, South Africa’s notification of its intention to withdraw has been linked by some to the difficulties surrounding the government after its own courts embarrassed it by declaring its reception of Al Bashir, the ICC’s most wanted fugitive, a breach of the law. The government’s own protestation that it had to choose between loyalty to the AU and pandering to the ICC rings hollow. However, the decision comes at a time when the composition and integrity of the current ANC leadership faces a mounting political existential threat: the prospect of damaging corruption revelations in a report on state capture by the outgoing public protector has sent Zuma’s government clutching for straws. Further, an apparently politically motivated and ill advised decision by the SA National Prosecuting Authority to go after the current finance minister has, as widely expected, ended in fiasco and reinforced perceptions of a Zuma government engaging in a witch-hunt. I venture to suggest that SA’s decision will eventually unravel as a poor attempt at political diversion with little if anything to do with the government’s official position and everything to do with Zuma and the ANC’s political calculus, and the SA opposition and civil society are likely to successfully petition the courts to declare it null and void on administrative procedural and constitutional grounds. Similarly, the Burundi and Gambia decisions must be understood within the context of their internal political dynamics. This does however not absolve the ICC from its role in building up the perception of bias towards African states. The ICC and in particular the OTP has by its attitude and political stance provided ammunition for local political players and given them enough reasons to legitimize their actions in front of their local supporters.

The ICC claims to be non-political (and only legal) when the opposite is clearly the case. More than anything else, it is its claim to being a purely legal entity that does not engage in any politics that exposes the ICC to claims of dishonesty and bias. A quick look at the actions of the ICC in Kenya, Uganda, and Ivory Coast for example reveals its political hand in at least three ways: overtly as when it engages in direct negotiations with Uganda in obtaining its self-referral; the ICC was thus effectively co-opted by Museveni in his personal pursuit of Kony et al, and bringing  the ICC dimension into the equation was meant to up the stakes against Kony and the Lord’s Resistance Army ; covertly when it gets itself inserted into and manipulated by local politics as we saw in the Ivory Coast situation where some political contestants sought to tip the balance of power in their favor by ‘accepting’ the sovereignty of the court while in actual fact putting their opponents away; and indirectly when its inaction and/or inefficiency with regards to prosecutorial decisions and case turnover creates cause for concern with serious ramifications on its legitimacy and universal acceptance. Thus, insisting that it is an institution concerned solely with the law while overtly making political considerations and allowing itself to be manipulated by politicians in furthering local political interests only serves to legitimize the anti-ICC crusade. This stance has simply straight-jacketed the ICC into a self-defeating legal formalism and held it back from engaging with the AU in a politically viable manner.

It should be clear therefore that any more African countries contemplating withdrawal from the ICC are not about to do so because of an overwhelming sense of injustice emanating from the OTP vis-à-vis Africa in general. They will do so first and foremost according to the exigencies of their local political realities. Secondly, they will do so because of the political expediency of the narrative, true or not, that the ICC is a compromised institution, and they will do so believing that enough rope can be woven from this with which to hang the ICC while gaining some local political mileage. None of the above scenarios augurs well for international criminal justice and the fight against impunity, and If the ICC is to  play its intended role in this project then it must simply revise its own ‘no politics’ mantra and learn to play politics openly, intelligently and robustly especially with regards to Africa.

This does not mean that the ICC should take sides in local political contests but that it must be alive to the impact of its attitude and activities in Africa and elsewhere. It must keep abreast of local political realities so that it correctly interprets them. The Kenyan situation showed just how much the OTP was ignorant about local politics, first by selecting suspects on the basis of a flawed understanding of party politics in Kenya and secondly by seriously under-estimating the local value of the ICC brand in Kenyan politics. That perceived political foes could win an election on a joint ticket based on an ICC narrative is a vindication of the ICC’s apparently naïve approach to African politics.

Embracing dialogue between the ICC and the AU does neither diminish nor foreclose the formal role of the court and the ASP. The ICC has publicly rebuffed previous private overtures from the AU with a suggestion that the AU should either initiate legal motions via the courts or wait for formal ASP sessions to articulate their concerns. This high handedness is both unnecessary and unhelpful as informal consultations can form the background for more formal engagements later on while creating a sense of mutual recognition and trust between the parties concerned. The call by Sidiki Kaba for dialogue must therefore not be limited to the formal confines of the ASP but also include informal consultations with the AU and other stakeholders. This is the way forward not only for a fruitful relationship between the AU and the ICC but also for the realization of a robust international criminal justice system.

Guest Post by Dr. Michael Odhiambo (Michael is a researcher attached to the School of Human Rights Research and the Receptor Approach)