African Union and the ICC: Standing for human rights or against?
It is shameful that victims of the 2007 inter-ethnic violence in Kenya, Over 1000 people lost their lives and over half a million became internally displaced, and of many other conflicts in Africa are in danger of not ever getting justice; either at home or before the International Criminal Court.
What do these politicians have to say to John, for example? John, who lived in Naivasha, was attacked by youths linked to one of Kenya’s political parties. He was considered a foreigner in the area. His house was burnt down and he was attacked with bows and arrows and hit with machetes. His leg was smashed with a club.
It is troubling that in recent years some have sought to undermine the ICC’s work with politically motivated claims that it is unfairly targeting Africans
Six years later, none of John’s attackers have ever been apprehended or brought to justice. John’s story is not unique. In fact, almost all of the victims of Kenya’s post election violence have yet to see those who committed or facilitated crimes under international law being brought to justice.
It’s the stories of people like John that we ask leaders gathering at the African Union next week to keep at the forefront of their minds when they consider a mass withdrawal from the International Criminal Court.
The outcome of the extraordinary summit due to be held in Addis Ababa on October 10 and 11 represents a critical juncture in the fight against impunity globally.
The 34 AU members that have ratified the Rome Statute which established an independent permanent International Criminal Court must take a strong stand to protect the international justice mechanism they have committed to.
The International Criminal Court is the only permanent criminal court in the world that has the authority to act when national courts are unwilling or unable to prosecute. An African Union mass-withdrawal would be disastrous for civilians in Africa, like John, who tend to bear the brunt of human rights violations and abuses.
The Organisation of African Unity, the AU’s predecessor organisation, was founded to end the innumerable human rights violations meted out on Africans through the yoke of colonialism. Today, the AU must stand firm with the victims of human rights violations allegedly perpetrated by their own leaders.
African states played a vital role in setting up the ICC and have an unquestionable stake in its core values in producing a just, fair and effective ICC.
It is troubling that in recent years some have sought to undermine its work with politically motivated claims that it is unfairly targeting Africans.
It was largely thanks to the lobbying role played by African states that efforts to undercut the independence of the Court’s Prosecutor were rejected by ensuring that the United Nations Security Council could not control the Court’s work.
African states, including Botswana, Cote d’Ivoire, Guinea, Lesotho. Liberia, South Africa, Nigeria, Senegal, Sierra leone and South Africa, also helped bring about the early establishment of the ICC in July 2002 by promptly ratifying the Statute. Since then, they have actively supported the ICC and nominated Africans to the positions of ICC judges including the current ICC Prosecutor Fatou Bensouda from Gambia.
It is understandable that concerns have emerged among many African governments that, in practice, the ICC has yet to investigate genocide, crimes against humanity and war crimes outside of Africa.
Indeed, Amnesty International shares this concern. The Office of the Prosecutor must be more transparent when going about its work. This is especially so in determining whether or not to open new investigations in situations that have been under preliminary examination for a number of years, such as Afghanistan and Colombia.
The Office of the Prosecutor should also review its decision to close the preliminary examination on Gaza, following Palestine’s recognition as a non-member observer state of the United Nations last November.
For many months, Amnesty International has been calling for the UN Security Council to refer the situation in Syria to the ICC Prosecutor.
But the fact that the ICC’s investigations and cases are all currently focussed on eight African situations does not mean that the ICC Prosecutor’s decisions are without basis or biased. Five of the situations were referred by the affected African governments themselves and two others were referred by the UN Security Council with the support of its African members.
The ICC can and should play an important role in delivering justice, and reparation, to African victims in these situations.
As an organisation working on behalf of, or alongside, victims of international crimes all over the world, we see everyday the importance of ensuring access to justice for the world’s most vulnerable people.
Any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity. All of which are values central to the Act upon which the African Union itself was founded.
Tawanda Hondora is Amnesty International’s deputy director of Law and Policy