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“Africa and the ICC – a dividing question”
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“Africa and the ICC – a dividing question”

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McPherlain Chungu picControversy has engulfed the International Criminal Court, which since 2002 has been asked to prosecute genocide, war crimes and crimes against humanity. McPherlain Chungu, 21, a Correspondent from Zambia now studying in India, writes that protests and changing attitudes are challenging the ICC’s role in Africa, and raise question about alternatives to the court.

On January 30th 2017 the Assembly of the African Union, in a non-binding resolution called for a mass withdrawal of member states from the ICC.

The question of African presence in the ICC gained much momentum in the last quarter of 2016 when South Africa, Burundi, and the Gambia gave formal notice to withdraw from the statute.

South Africa’s decision to leave the ICC has sparked much speculation. Firstly, South Africa is a regional power and holds great influence both economically and politically in the region. This could encourage a “mass exodus” of African nations from the ICC. Currently, Namibia, Kenya, and Uganda have openly expressed interest to leave. Secondly, the assertions of partiality of the ICC against Africa are not recent.  Zimbabwe’s President Robert Mugabe has been vocal about the issue. But this was the first in the history of the court that any country decided to officially withdraw. Speaking on state television, Gambian Information Minister Sheriff Bojang said the ICC was “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans”. All ten investigations carried out by the ICC in its 14-year history have been Africa-based, excluding one in Georgia.

Claims have been made that African countries wishing to withdraw from the ICC may be attempting to evade prosecution.

“While the ICC has been portrayed to have ingrained geopolitical prejudice against the African continent, a closer examination reveals that domestic considerations, including the possibility of imminent prosecution, play a key role in ICC pull-outs,” said Abraham Joseph, assistant professor at the Ansal School of Law, Gurgaon.

Whatever the motives of withdrawing countries are, the serious allegations they raise against the ICC point towards structural problems that could take a long time to correct, even at the cost of alienating the current member states.

In an interview with Reuters, President Hage Geingob of Namibia said that he would continue to support the ICC as long as the US agrees to join the court. The US and Russia were signatories of the statute, but failed to ratify it. Later they both withdrew their signatures. The argument is if the aim of the ICC is to fight crimes against humanity, Africa certainly cannot be the only focus.

In its November 2016 annual report, ICC prosecutor Fatou Bensouda, Gambia’s former Justice Minister, indicated interest in initiating investigations into “war crimes” committed by Americans, including torture by United States military personnel in Afghanistan. The case would be possible even though the US is not a member of the ICC because only one party is required to be a member in order to carry out an investigation. However, it is not clear whether Bensouda will actually be able to effectively press charges against the US.

There may be a cost attached to leaving the ICC, but an alternate African regional body could assume the role of addressing cases of gross human injustice and ensure that victims are compensated. Africa has on multiple occasions ensured this. Chad’s Hissène Habré, who was tried by a special tribunal in Senegal, was convicted in 2016. He was found guilty of “murder, summary executions, and kidnapping followed by enforced disappearance and torture, amounting to crimes against humanity, against the Hadjerai and Zaghawa ethnic groups,” during his reign as president between 1982 and 1990. Another example is the African Commission on Human and Peoples’ Rights, a quasi-judicial body that oversees the enactment of the Africa Human Rights Charter, active in countries like Somalia, Kenya, and Congo.

Another possible alternative to ICC involvement could be the initiative by African countries themselves to set up legal chambers that specifically target “crimes of genocide, crimes against humanity, and war crimes”. The ICC mandate only allows it to try cases that host countries have either refused to or failed to take to trail. Countries like Uganda and the Central African Republic have set up their own International Crimes Division and a Special Criminal Chamber respectively.

The question of whether African countries should leave the ICC is a very broad and complex one. Either way, it is not wrong for a sovereign country or region to determine how its criminal cases will be tried. According to Amanda Cabrejo le Roux, a doctoral candidate at the French Sorbonne Law School, “from a legal perspective, it is preferable that discontented states use their legal option to withdraw instead of staying while violating their obligations to cooperate.” It is important to note that leaving the ICC does not imply the relinquishment of obligations to uphold justice.

Will South Africa, Burundi, and Gambia’s decision to leave the ICC result into a “mass exodus” of the current 34 African member states? What alternatives will withdrawing member states resort to after leaving the ICC?  Can the ICC put in place measures to address the allegations of impartiality, or is it too late? The world can only wait and see.

However, one thing is certain: regions of the world require a system of holding those responsible for international crimes of genocide, crimes against humanity, and war crimes accountable. Prone to authoritarian regimes and political instability, Africa certainly requires this system of accountability; whether that comes from the ICC or not is for each sovereign nation to decide.
photo credit: gt8073a criminal courts via photopin (license)

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About me: I am curious, charismatic, ambitious and determined, with keen interest in social and political issues, gender and identity politics in particular. Born and raised in Zambia, currently I am pursuing my undergraduate studies in Delhi. My dream is to make the world a place with the same standards for everyone and emphasis on mutual benefit – an ideal we must strive towards.

News blogger, movie and film fanatic and travel enthusiast. A practical idealist.

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Opinions expressed in this article are those of the author and do not necessarily represent the views of the Commonwealth Youth Programme. Articles are published in a spirit of dialogue, respect and understanding. If you disagree, why not submit a response?
To learn more about becoming a Commonwealth Correspondent please visit: http://www.yourcommonwealth.org/submit-articles/

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