AFRICANGLOBE – The first time a group of African leaders got together to seriously consider a mass withdrawal from the International Criminal Court, shouting could be heard coming from a conference room more used to diplomatic smiles and polite handshakes.
An assistant to one of the presidents, stepping out to take a phone call, looked horrified when he spotted journalists within earshot. “Go! You’re too close,” he shouted.
The ICC, it seems, makes some African leaders very angry.
And since that meeting in 2010, if anything, tensions have risen. On Friday, it looks as if the UN Security Council will consider an African call that the ICC trials of Kenya’s President Uhuru Kenyatta and his deputy, William Ruto, should be deferred for one year.
Kenyatta and Ruto are accused of stirring ethnic bloodshed that left about 1,200 people dead after Kenya’s 2007 elections. Kenyatta’s trial is due to start in February after being delayed three times, while Ruto’s is already underway and he has appeared at the Hague several times.
Both men have said they should be free from the court’s duties to do what they were elected – freely and fairly – to do: govern their country. The need for them at home is especially pressing now, they argue, after September’s attack on Nairobi’s Westgate mall by the Somali rebel group, al-Shabab, in which at least 70 people were killed.
While most diplomats say it’s unlikely the council will agree to defer, the deepening row between the court of last resort and much of Africa isn’t going away any time soon.
This latest pushback against the ICC was hatched at a special African Union summit held in the Ethiopian capital, Addis Ababa, last month. The meeting was called at the behest of the Kenyans but many other African nations are equally keen to attack the court.
“The ICC has been hijacked and it is being used selectively in a reckless manner,” Uganda’s deputy foreign minister, Asuman Kiyingi, told reporters.
“We do believe that the ICC, if used appropriately, can check impunity. But if it is used in a very selective manner, and without taking into due consideration what the African leadership is saying, then, of course, it can cause us problems.
“If you hijack this institution, then keep it. We don’t need it.”
On the face of it, the AU would seem to have a good argument.
All of the court’s current 20 cases in eight countries are against Africans – two of them sitting heads of state – and, though four of the countries involved referred the cases to the ICC themselves, some of the continent’s leaders accuse the Hague-based court of picking on them.
Victims Await Justice
Stoking their anger is the fact that global powers such as the United States, China and Russia have not signed up to the court. Neither have Israel, Pakistan, India, North Korea, Saudi Arabia, Qatar and several other nations.
Why, many Africans ask, are Britain and the US not investigated by international institutions for the alleged crimes of their troops – and political leaders – in places such as Iraq and Afghanistan?
The answer for some, as once articulated by Ethiopian Prime Minister Hailemariam Desalegn, is that the ICC is “hunting” them. Worse still, they say the hunt is racist and neo-colonial.
“The founding fathers of African unity were conscious that structural colonialism takes many forms, some blatant and extreme like apartheid, while others are subtler and deceptively innocuous, like some forms of development assistance,” Kenyatta said in a gleefully anti-Western speech to close the AU meeting.
Suspicion of the ICC deepened in the African Union when the Security Council asked it to investigate the then Libyan leader Muammar Gaddafi’s violent crackdown on protests against him in 2011.
AU officials say they felt slighted by Western powers when its proposed plan for negotiations between Gaddafi and the rebels was largely ignored. Though the rebels refused to ever really consider it because of Gaddafi’s sway within the AU, for many African leaders, the NATO intervention was a colonial one.
For some African governments, the power the Security Council has to refer cases – which was also used in Kenya – is at the heart of the problem. That ability, they argue, can be used against them by the countries that traditionally dominate the council, especially the Western ones, and they want it stripped.
The court’s defenders, marshalled to lobby in its favour ahead of the summit, say these claims are nonsense. The African countries who want out of the court are simply trying to avoid justice, the argument goes. What they really want is impunity. Claims of institutional bias against Africa are nothing but a smokescreen.
“The AU’s call for a deferral of the cases against Kenya’s president and deputy president is another attempt to derail and delay justice for Kenya’s victims, and betrays the AU’s purported commitment to fight impunity,” Davis Malombe, deputy executive director of the Kenya Human Rights Commission, said after the summit.
Some AU officials admitted privately that a desire to escape justice does motivate some of the organisation’s members and that divisions over how to deal with the ICC have caused rows between its member states regularly in recent years.
Kenya, Sudan, Uganda and Ethiopia are among the countries who favour a walkout, according to diplomats and AU officials. And countries such as South Africa, Ghana, Nigeria and Botswana are among those who ordinarily argue against that.
The 2010 meeting at which tempers boiled over took place at an AU summit in the Ugandan capital, Kampala, the same month the ICC added a charge of genocide to a warrant it had issued the year before for the arrest of the Sudanese President Omar al-Bashir, accusing him of orchestrating murder, rape and torture.
Unlike Kenyatta, Bashir has refused to co-operate, and the Sudanese – along with the Kenyans – have pushed behind the scenes for a mass walkout from the court by the 34 African countries who are signed up to it.
Though many officials – including several Western diplomats – say there was a strong argument the ICC’s warrant against Bashir was badly timed and made the situation in Sudan worse as he became determined to cling to power in fear of being arrested by a new regime, his vendetta against the court would appear largely selfish.
But, the same officials say, Bashir aside, the manner in which the story is often presented by the media – as a fight between justice and impunity – is too simplistic.