In the same week that President Uhuru Kenyatta refocused us on the ICC and ODM leader Raila Odinga instinctively, and I believe unwisely, waded into this political hot potato, two sets of events were occurring in Africa and the Middle East. The events explain two contrasting views that many in the continent hold on the ICC.
Those who hold the view that Africa needs the ICC were emboldened by events in South Sudan and Gambia. In South Sudan, Yasmin Sooka the Chairperson of the Commission on Human Rights in South Sudan, submitted a report to the UN Human Rights Council which warned of a “Rwanda-like genocide” unless the UN took immediate pre-emptive action. It is clear from the report that most of the atrocities are being committed by President Salva Kirr’s soldiers as they seek to eradicate anything remotely Riek Machar. Without international action, including a credible threat of prosecution of the perpetrators of this ongoing genocide by the ICC, there is no incentive for cessation of this violence.
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Further north in Gambia, the home of the indefatigable Fatou Bensouda, long serving strongman Yahya Jammeh had a change of mind about handing over power after losing the elections. It is clear from the goings on in Gambia that Jammeh’s hold on to power may precipitate a civil war. In the event that violence ensues, Jammeh’s stranglehold on Gambia means no institution can act against him, and only a credible threat of an ICC prosecution may incentivize his retreat. It is for these situations that the ICC was established; where the persons perpetrating the crimes against humanity are not prosecutable by the state and can therefore act with impunity.
These incidents explain the initial enthusiasm of the ICC in Africa at the time of its formation, which coincided with victory of pro-democracy parties in the late 90s and early 2000s. On the other hand, two occurrences this week bolster those that consider the ICC part of the imperialist conspiracy against Africa. The first relates to a report by Human Rights Watch on Yemen, which documented how the Saudi army, with the tacit support and arming by America, has been responsible for the reckless and sometimes deliberate killing of civilians, including an incident in which a prison was bombed in October killing scores of inmates.
The second incident relates to Syria where strongman Bashar al-Assad, who is supported by Russia’s Putin, finally took over Aleppo from the rebels, leading to killing of numerous civilians. There are numerous reports of women committing suicide to avoid rape. Despite the ruthless nature of these two incidents and the loss of civilian life, there has been little or no demands for the ICC to start proceedings against the perpetrators. These sort of incidents make Africans allege that the ICC is unduly and unfairly focused on Africa while ignoring atrocities where the major powers are involved either directly or through proxies. These claims are not idle.
ICC’s opponents note that despite its support of the court as it prosecutes various cases in Africa; the US is not a signatory of the Rome treaty. Russia has recently quit the ICC. Almost all prosecutions before the ICC are from Africa and even though most are referred to the court by African states it is still a blight on the court. When the ICC so grossly bungles a case like Kenya, with believable allegations that it was seeking to achieve a political end, the profile of the court is gravely damaged. The truth is that with all its weaknesses, the one continent that needs the ICC is Africa. It is here that autocracy is still alive and kicking, though on it’s deathbed. It is here that in many countries, impunity thrives; institutions that would apply justice against the strong are still weak and largely controlled by the State. Granted, the court needs an overhaul to make it less political and more diverse in its focus, but until despotism is buried it would be a sad day for the African population if the court was neutered.