One of the challenges faced by the global South in general and African countries in particular is the culture of impunity. And the ratification of the Rome Statute by 30 African countries seemed to send a message to the world about the commitment of African leaders to close the impunity gap. But the reaction of African leaders after the indictment of the Sudanese president by the International Criminal Court (ICC) raises some concerns from the international community as a whole.

Reacting to the arrest warrant against President Omar al-Bashir issued by the ICC for crimes against humanity and war crimes on 4 March 2009, the African Union decided not to cooperate and appealed to the United Nations to delay the case. It accused the International Criminal Court of being a Western tool to oppress others, set up only to target Africans.

In this regard, Alhaji Muhammad Mumuni, Ghana's foreign minister said, 'We have been a little unhappy about the whole process, how this matter came before the ICC', adding 'The AU actually addressed a resolution to the security council asking the UN Security Council to defer the warrant for one year, and it was virtually ignored. That we thought was a slap.'[1]

As the ICC does not have a security force with which to arrest any accused, the cooperation of states becomes a core element to the success of the fight against impunity. Thus, by withdrawing their cooperation with the ICC to arrest and surrender the Sudanese president, African leaders are threatening the international effort to end impunity.

The African leaders’ argument raises two questions however: Is the ICC a Western tool to oppress others? and; Was the ICC set up to target African people only?

IS THE ICC A WESTERN TOOL TO OPPRESS OTHERS?

The above thesis connects to two elements, namely the creation and the composition of the ICC.

The creation of the ICC

The Rome Statute, which is the document founding the ICC, was submitted for ratification to come into force, with 30 African countries among those who ratified it. The ratification of the Rome Statute by 30 Africans against 50 Africans shows how involved African countries were and the degree to which they were willing to fight impunity. Moreover, the ratification was made without any restriction on anyone. But when a state party in a country such as Senegal accuses the ICC of being a Western tool, one can ask how reliable such a statement should be taken to be.

The composition of the ICC

The court is composed of four organs. These are the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry.

Presidency

The Presidency is responsible for the overall administration of the court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the statute. The Presidency is composed of three judges of the court, elected to the Presidency by their fellow judges, for a term of three years.

Judicial Divisions

The Judicial Divisions consist of 18 judges organised into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each division sit in chambers which are responsible for conducting the proceedings of the court at different stages. The assignment of judges to divisions is made on the basis of the nature of the functions each division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each division benefits from an appropriate combination of expertise in criminal law and procedure and international law.

Office of the Prosecutor

The Office of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the court, for examining them and for conducting investigations and prosecutions before the court.

Registry

The Registry is responsible for the non-judicial aspects of the administration and servicing of the court. The Registry is headed by the registrar who is the principal administrative officer of the court. The registrar exercises their functions under the authority of the president of the court.[2]

As observed, the architecture of the ICC is made in such a way to ensure due process for all accused, recognised by international law. It is in regard to the positions held by Africans and their number within the court that things become more interesting. Indeed, the African continent boasts five of the total 18 judges, with Judge Fatoumata Dembele Diarra (Mali)[3] as the first vice-president. Equally, in the Office of the Prosecutor an African, Fatou Bensouda[4], the deputy prosecutor, is the one in charge of the Prosecution Division of the Office of the Prosecutor.

Once again, is the ICC really a Western tool?

WAS THE ICC SET UP TO TARGET AFRICAN PEOPLE ONLY?

The second thesis made by African leaders to justify the position towards the ICC is the fact that to date all those arrested by the ICC have been African. But what we should bear in mind is that four of those five cases were referred by the African countries themselves, while the other was referred by the UN Security Council.

The first case referred to the ICC was by Uganda. In 2004, Uganda invited the ICC to investigate allegations of atrocities committed by the Lord's Resistance Army (LRA) of Joseph Kony. After the investigation, the ICC issued five warrants of arrest against the rebel Joseph Kony and his four commanders, namely Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya.[5] To date, Joseph Kony and his rebel group still operate in eastern Democratic Republic of Congo (DRC).

The second case referred to the ICC was by the DRC. In 2004, the DRC invited the ICC to investigate allegations of atrocities committed by armed groups against the population of Ituri, in eastern Congo. From the investigation, the ICC issued four warrants of arrest against Thomas Lubanga, Mathieu Gujolo, Germain Katanga and Bosco Tangada for war crimes and crimes against humanity.[6] Among the five indicted only Bosco Tangada is still walking free in eastern DRC.

The third case referred to the ICC was by the Central African Republic (CAR), which in 2005 invited the ICC to investigate allegations of atrocities committed in the country by the Congolese former vice-president Jean-Pierre Bemba and his rebel group. After investigation, the ICC issued a warrant of arrest against Bemba and he was arrested in Belgium last year.[7]

The forth one was referred by the UN Security Council in 2005 asking the ICC to investigate allegations of atrocities committed in Darfur, Sudan. Following the investigation, the ICC has issued four warrants of arrest to date against Ahmad Muhammad Harun ('Ahmad Harun'), former minister of state for the interior of the government of Sudan and minister of state for humanitarian affairs of Sudan; Ali Muhammad Ali Abd-Al-Rahman ('Ali Kushayb'), alleged leader of the Janjaweed; Bahr Idriss Abu Garda, chairman and general coordinator of military operations of the United Resistance Front; and Omar Hassan Ahmad al-Bashir, president of the Republic of Sudan.[8]

Thus, one may ask, who really targets African people?

REASONS FOR REFUSAL TO COOPERATE

Looking deeply into the reasons made by African leaders to justify their refusal to cooperate with the ICC, two main reasons can be pointed out: the fear of being the next arrested and the protection of allies.

Fear of being the next arrested

Before the creation of the ICC, undemocratic African leaders used to protect themselves from any prosecution after their term as head of state through two means: a blanket amnesty or a golden exile to another anti-democratic country.

Since the creation of the ICC however, the possibility of enjoying the benefice of a national amnesty has become uncertain as the national amnesty does not operate before the ICC. Indeed, for the same reason exile even to a friendly country does not secure against possible prosecution for crimes under ICC jurisdiction. Knowing that once they commit a crime under ICC jurisdiction they will be arrested, they choose to cooperate with an institution which can arrest them anytime.

Thus by refusing to cooperate for any arrest and surrender of a fellow president, African leaders try to create solidarity between them and to expect to be protected in case they are also accused by the ICC.

The protection of allies

The Rome Statute preamble commits all state parties to a legal obligation to cooperate over the arrest and surrender of any person accused of a crime under the ICC's jurisdiction. In this regard, one can recall how cooperative African leaders were when referring cases to the ICC and arresting the accused. But maybe this was just the best way to target their opponent, rather than a commitment to end impunity.

Indeed, the Ugandan president would be happy to see Joseph Kony and his commanders caught, the DRC president to see Thomas Lubanga, Mathieu Ngunjulo and Germain Katanga to be in the Hague, while François Bozizé, the Central African Republic president who referred the Bemba case to the ICC, does not care if Bemba spends the rest of his life in jail or not.

In this regard, while the Central African Republic president was very concerned by the process of prosecution of the Congolese former president Bemba and ally of Ange-Félix Patassé – the former CAR president – the peace talks which were held between the two sides (Bozizé and Patassé) seem to put aside Patassé's potential prosecution, intensely claimed by Bozizé. The ICC process can wait as long as Patassé is an ally.[9] For victims of those human rights violations committed by Patassé and his ally Bemba, they are not of course a priority for Francois Bozizé. They can wait, even forever.

Furthermore, while the Congolese government cooperated with the ICC and arrested Thomas Lubanga, Mathieu Ngujolo and Germain Katanga, the arrest warrant issued against Bosco Tangada seems to be met with less concern from the government since the accused cooperated in ending the rebellion in the country's east led by Laurent Nkunda Batware. In this regard, to confirm its position, the Congolese government has made it clear that its priority is peace.[10] Therefore, the arrest of Bosco Tangada, their current ally, can wait.

CONCLUSION

The fight against impunity is a primary concern for the international community. But the attitude of African leaders towards the ICC, the international court symbolising that fight, raises concern. The refusal of these leaders to cooperate with the court over the arrest warrant issued for Sudanese President Omar al-Bashir – accused by the ICC of crimes against humanity – has created real concern within the international community as it threatens global efforts to end impunity.

The argument made by African leaders to justify their refusal to cooperate with the ICC is based on the fact that the court targets only African people and that it was set up by Western countries as a tool to oppress others. But are these the real reasons? Or should the real reasons for their refusal be found elsewhere? This article has tried to show the real reasons of the refusal of African leaders to cooperate with the ICC, namely, the fear of being the next arrested and the protection of allies.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Dieu-Donné Wedi Djamba is a lawyer at the Lubumbashi Bar Association, a human rights activist and a transitional justice and human rights researcher.
* Please send comments to [email protected] or comment online at Pambazuka News.

REFERENCES

[1] France 24, ‘AU votes against cooperating with ICC arrest warrant for Bashir’ [2] ICC: Structure of the Court,, accessed 23-08-2009
[3] Idem
[4] Idem
[5] ICC: Situations and cases , accessed, 20-08-2009
[6] Idem
[7] Idem
[8] Idem
[9] Reuters Blogs, ‘More Power-sharing in Africa?’ , accessed 28-08-2009
[10] Radio Okapi, ‘RDC : Bosco Ntaganda et la CPI, Amnesty international écrit à Joseph Kabila’ , accessed 23-08-2009