Nairobi — Activists from across Africa clarify misconceptions about the International Criminal Court (ICC) and highlight the need for African governments to support the court in a video released today by 21 African and international nongovernmental organizations.
In January 2016, the African Union (AU) gave its Open-Ended Committee of African Ministers on the ICC a mandate to develop a “comprehensive strategy” on the ICC, including considering the withdrawal of African member countries from the court. The committee met in April and agreed on three conditions that needed to be met by the ICC in order for the AU to agree not to call on African countries to withdraw from the court. These include a demand for immunity from ICC prosecution for sitting heads of state and other senior government officials – which is contrary to a fundamental principle of the court.
It is not clear if the AU will consider any of the open-ended committee’s assessments and recommendations at its upcoming summit in Kigali, Rwanda, from July 10 to 18.
The video features 12 African activists who raise concerns about AU actions toward the ICC.
“The reasons why we supported the establishment of a permanent court as Africa have not changed,” says Stella Ndirangu of the International Commission of Jurists-Kenya. “The only thing that has changed is that now leaders are being held to account.”
“To say that the ICC is targeting Africa, I think, is a misrepresentation of the situation,” says Angela Mudukuti of the Southern Africa Litigation Centre. “It’s more Africans making use of the court they helped to create.”
“The big clash [these days] is over African leaders, the powerful few, who really want impunity for themselves, versus the vast majority, in fact all of the victims of Africa’s continent, who want justice every day,” says Ibrahim Tommy of the Centre for Accountability and Rule of Law-Sierra Leone.
To say that the ICC is targeting Africa, I think, is a misrepresentation of the situation. It’s more Africans making use of the court they helped to create- Angela Mudukuti, Southern Africa Litigation Centre.
“Governments of the world must support [the] ICC to give justice to victims in Africa,” says Chino Obiagwu of the Legal Defence and Assistance Project of Nigeria.
Six out of the nine African situations under ICC investigation came about as a result of requests or grants of jurisdictions by African governments – Côte d’Ivoire, Democratic Republic of Congo, Mali, Uganda, and the Central African Republic twice. Two other investigations in Africa, the Darfur region of Sudan and Libya, were referred to the court by the United Nations Security Council. In Kenya, the ICC prosecutor received the authorization of an ICC pre-trial chamber to open investigations after Kenya repeatedly failed to investigate the 2007-08 post-election violence domestically.
In January, the ICC prosecutor opened the court’s first investigation outside Africa, into Georgia, and is conducting several preliminary examinations of situations outside Africa – including in Afghanistan, Colombia, Palestine, and alleged crimes attributed to the armed forces of the United Kingdom deployed in Iraq.
The recommendations from the open-ended committee are the latest development in a backlash against the ICC from some African leaders, which has focused on claims that the ICC is “unfairly targeting Africa.” The backlash first intensified following the ICC’s 2009 arrest warrant for President Omar al-Bashir of Sudan for serious crimes committed in Darfur.
While blanket immunity for sitting heads of state is available in some domestic jurisdictions, it has never been available before international criminal courts dealing with grave crimes.
The AU, in 2015, adopted a protocol to give its continental court authority to prosecute grave crimes, but also, in a controversial provision, grants immunity for sitting heads of states and other senior government officials. That protocol will need 15 ratifications before coming into force, but has yet to be ratified by any country.