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Hague still provides a way out

By Dominic Pkalya | April 9th 2016

The termination of the case facing Deputy President William Ruto and radio journalist Joshua arap Sang at the International Criminal Court is a major victory for the African Union.

Since ICC issued a warrant of arrest for Sudanese President Omar al-Bashir in 2009, and the commencement of Kenyan cases in 2013, the AU has been on an offensive against The Hague-based court over alleged bias against Africans. But despite the setback, ICC still remains the best bet for many poor Africans, particularly the victims of crimes against humanity and genocide.

African countries, including the AU, have criticised the court for focusing on African “cases” while turning a blind eye on crimes against humanity committed in other parts of the world. This argument is defeatist for a number of reasons. One, the African countries form a big bloc of State Parties to the Rome Statute that established ICC. Two, joining ICC is voluntary. On February 2, 1999, Senegal became the first country in the world to ratify the Rome Statute.

Three, most of the African cases at ICC are self-referral by State Parties. Uganda, Democratic Republic of Congo, Central African Republic and Mali are all state party self-referral cases. How do we turn around and accuse ICC as a court for Africans when it is the African countries themselves that referred the cases to the court? Four and by default, ICC was established at a time when most atrocities were being committed in Africa. The Rwandan genocide of 1994 expedited the establishment of ICC. On March 22 ICC tweeted that, “had the ICC been established in the 1970s, it would have probably started its operations in Latin America - or in Eastern Europe had it been established in the 90s. This is why ICC has focused its investigations and prosecutions in Africa.”

Another criticism of the court by AU is that ICC is a master of double standards as it does not hold nationals of hegemonic powers like the US to the same account as Africans in matters crimes against humanity. This argument is a fallacy given that the judicial systems in those western countries are largely independent. For example, a court in the UK has prosecuted and convicted some officials of a company for bribing Kenyan officials to win a tender to print ballot and examination papers.

Despite the overwhelming evidence that has since been shared with the government of Kenya, the local courts, including the anti-graft bodies, have not started serious investigations.

Despite obvious flaws in the Kenyan cases, ICC is still an important institution for addressing crimes against humanity in Africa, especially where the state is a key perpetrator or collaborator.

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