By Dann Mwangi
The United Nations Security Council is a permanent organ of the United Nations tasked with the primary responsibility of maintaining peace and stability in the world. This is obviously not a simple task as in a world with intense competing interests, many factors potentially contribute to conflicts and wars.
In discharging this duty, the UNSC is expected to use various measures both military and non-military. In this light, the Diplomatic Plenipotentiaries that led to the creation of the International Criminal Court gave the UNSC the powers to maintain peace and stability in the world through the use of this court.
ICC prosecutes international crimes whose commitment creates instability and lack of peace and therefore UNSC was given the powers to refer and defer cases to the court in a bid to enhance peace. However, the powers of the UNSC in Articles 13 (b) and 16 of the Rome statute to the ICC to refer and defer situations and cases respectively have been of great concern in Africa. This concern did not begin with the Sudan and Kenya cases as even during the negotiations that led to the ICC’s statute, a majority of the delegates were against the intervention of the UNSC in the ICC’s judicial role.
There was concern, which is now real, that UNSC being a political body of the UN would politicise international justice at the ICC which eventually would dent the credibility of the ICC.
Currently, many voices in Africa, including Presidents Museveni, Kagame and some respected African scholars like Professor Mohamod Mamdani have dismissed the manner in which the UNSC has selectively used its powers over the ICC. Except President Ian Khama of Botswana who has openly supported the ICC, those who have not spoken against the ICC are indifferent about the court.
The relationship between the ICC and many African countries have remained low as even the African regional body, African Union, has been at the forefront of dismissing the ICC and this went to the extent of AU refusing to give ICC an African liason office in their Addis Ababa headquarters. In this regard, the repercussions of the UNSC’s refusal to defer the Sudanese and Kenyan cases in the ICC have not augured well for the court and cannot be wished away. There must be credible attempts to address this matter and the suggestions by the African Union for the United Nations General Assembly to be involved in deferral of cases if UNSC declines to do should be supported by all. This is because as long as the relationship between the UNSC and African countries remains at its current form, I
CC will not succeed in prosecuting international crimes in Africa countries. The court mainly relies on state parties to the ICC in collection of evidence, access to witnesses, arrest of suspects and any other logistical support but this cannot be achieved if the UNSC continues to target violations of crimes in Africa only.
The UNSC readily referred the Sudanese and Libyan cases to the ICC but has chosen not to refer President Assad of Syria and his cohorts to the ICC as the permanent members of the UNSC are sharply divided on the Syrian matter.
This is despite that many other countries that have been accused of committing international crimes such as the US, UK and Israel have not faced justice so far. In addition, the UNSC has readily deferred any investigation and prosecution of peace-keepers from its permanent members but has chosen not to defer Kenyan and Sudanese cases.
Without delving on the merits or lack of it in deferral situations, it’s evident that Article 16 of the Rome statute of the ICC is being selectively used for the benefit of the permanent members of the UNSC and therefore supporting the view that ICC was created for Africans and not the rest of the world.
Therefore, as the United Nations General Assembly begins its annual sitting this September, there is need for all the members of the Assembly of State Parties to the ICC to continue the push for reforms in the UNSC and also change of Article 16 of the Rome statute so that the Assembly, which all UN members are represented, can have a say in referral and deferral of cases to the ICC.