Why UN must call African bluff over the ICC: By REV. CANON FRANCIS OMONDI

The African Union’s 26th Summit, held a few days ago, adopted a proposal to develop a roadmap for the continent’s withdrawal from the Rome Statute.

The Rome Statute is the founding treaty of the International Criminal Court (ICC).
It is the documented body of principles according to which the ICC operates.
It describes its jurisdiction, structure and functions.

According to the Statute, the ICC has the power of complementarity, meaning that it
can investigate and prosecute in states whose national court systems have failed.

The ICC is an institution acting as a permanent tribunal to prosecute people for war
crimes, crimes against humanity and genocide.
It has the authority to adjudicate on claims brought to it.
So it works on a referral system just like a normal court, but serving the entire world.
It has the power to prosecute for the crime of aggression, defined as a state using
armed forces against another state, whether by invasion, blockade of ports and coasts, or even if one state’s armed forces were allowed into another state for a specified period and they surpassed that period.




Its powers are designed to be effective under these three circumstances:

1. When a criminal is a member of a State party or any State that has otherwise
acceded to the court’s jurisdiction: Both Uganda and Congo referred some of their citizens to The Hague, indicating that these countries volunteered to work with the ICC. The court is also hearing the case in which the Ugandan former rebel commander Dominic Ong’wen faces a number of charges relating to crimes against humanity.

2. When the crime was committed on a State party’s territory or that of a State that
has accepted its jurisdiction: Kenya invoked the ICC immediately after the post-election violence of 2007/8.

3. When the court receives a referral from the United Nations’ Security Council: Sudan
is not a signatory to Rome statutes, yet five of its nationals – including their president – are inductees, reported by the United Nations Security Council. Ivory Coast has not ratified the Rome Treaty the basis of the court, yet Lauren Gbagbo – its former president – and his wife, are standing trial on charges of crimes against humanity.

In the guise of purging the ICC of: ‘politicization,’ ‘bias towards African leaders’ and ‘dysfunction,’ President Uhuru Kenyatta urged African nations to exit the institution.
They had relentlessly tried to reform the ICC to no avail.

President Yoweri Museveni of Uganda had earlier made this very call in 2014, when he called on all African nations “get out of that Western court.”
“I supported the court at first because I like discipline. I don’t want people to err without accountability,” he had said at the time.

He had added: “But they have turned it into a vessel for oppressing Africa again, so I’m done with that court. I won’t work with them again.”

Is this ultimate altruism by our leaders?

President Kenyatta’s action is suspect.

He earlier faced crimes against humanity charges at the court, but his case was
terminated in March 2015.
This was after prosecutor Fatou Bensouda withdrew the charges against him for lack of sufficient evidence, though she accused the Kenyan government of limited co-operation.

Our last bulwark against political class excesses is now being pulled down.

Is this a way to dodge responsibility for crimes against humanity committed already and in the future under their watch?

Why would our leaders withdraw from the ICC?

Guessing is not difficult. Think of this.

In January 1933, Adolf Hitler became German Chancellor.
He withdrew Germany from the League of Nations in order to rearm.
The rest is history.

The League of Nations was at the time fixated on reaching an international
disarmament agreement.
The United States’ President Woodrow Wilson hoped the League would ensure that
the First World War truly was “the war to end all wars”, but efforts to limit army sizes prompted the departure of Japan in March 1933 and then Germany a few months later.

There is evidence that several governments in Africa are reneging on rights for their citizens.

Individual or minority rights have been sacrificed at the altar of State security and prolonged most leaders’ hold on power.

I am, however, persuaded that the world community will not quietly watch as abuses continue.

African leaders are still seething with anger that the UN Security Council ignored the AU’srequest to refer the ICC trials against Sudanese President al-Bashir and the Kenyan leaders to them.

Thus, this withdrawal allegedly seeks to affirm Africa’s sovereignty arguing that theICC is threatening the independence of African states.

Our leaders must be reminded that the end of the Cold War inaugurated a period in which the international system is marked by an increased prevalence of humanitarian interventions.

Sovereignty no longer means that internal actions are beyond scrutiny.

A state that oppresses and violates the autonomy and integrity of its citizens and subjects can no longer claim that sovereignty shields it from such scrutiny and “outside interference.”

In April 1999, Vaclav Havel, President of the Czech Republic, delivered a famous address to the Senate and the House of Commons of the Parliament of Canada in which he argued: “Human rights rank above the rights of States,” and “human liberties constitute a higher value than State sovereignty.”

The NATO campaign in Kosovo in 1999 is often described as the paradigmatic example of these humanitarian interventions: it is revered as history’s first instance of a truly altruistic war.

Even so, the rationale offered for the military intervention and the means employed therein have been subjected to a plethora of criticisms.
They are at the forefront of recent debates on global governance.
The doctrine and practice of humanitarian intervention presents a seemingly insurmountable dilemma in global governance: this dilemma is characterized by the tension between the primacy of State sovereignty and the protection of fundamental human rights.

Of course, the chasm between international “attention” and effective action of prevention or enforcement is huge.
The chilling reports of atrocities and extra judicial killings by government and militias on citizens in Burundi haunts our collective conscience.

Too many such images — from South Sudan, to Uganda, to Ethiopia, to Eritrea or Zimbabwe — have crowded the landscape of sovereignty and international inaction.

We are compelled to continue pressing for the notion that recognition of and respect for human rights must come before the principles of state sovereignty and non-interference.

An egregious violation of human rights is no less so because it occurs within the borders of a particular State.

Sir Adam Roberts – emeritus professor of international relations at Oxford university -responding to the challenge of legality of such action, suggests that the UN Charter “leaves some scope for humanitarian interventions, but this is largely through indirect and subtle channels, which ought to be made more explicit. Therefore, since the doctrine of humanitarian intervention has no overt legal grounding in the UN Charter, it is necessary to examine the actual norms and practices of states in order to understand the evolving nature of the doctrine within the context of global governance.”

The deepening legitimacy of the ideas of human rights provides the context for Kofi Annan’s famous assertion, as quoted in Jim Hoagland, “Murder in the Name of Sovereignty” (Washington Post, October 28, 1999, p. A33).

The former UN Secretary said: “Today, what is internal doesn’t remain internal for very long. We have to examine our willingness to act in some areas of conflict while limiting to humanitarian palliatives in other crises that ought to shame us into action.”
He concluded: “We have to find rational guidelines or an understanding of the spectrum on which the choices of intervention exist. We need a new consensus. The founders of the United Nations in 1945 came out of a World War determined to stop conflicts between States. The time has come for our generation to look at its responsibilities toward civilians who in today’s wars are deliberately targeted.”

It is perhaps remarkable that an international diplomat of Kofi Annan’s stature was able to promote an agenda that our leaders would find troubling, if not offensive.

He surely understood this, while at the same time took more seriously the article that opens the Universal Declaration on Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Sadly, our national institutions given to deliver justice are too weak to respond to humanitarian challenges.
Moreover, the AU is groping in the darkness of special interest, unable to address the humanitarian crises in Africa today. Without power to restrain aggression from outside African states and within them, there cannot be human rights.

The good news is that this withdrawal effort is a zero sum game.
As long as we are a part of comity of nations, we will still come under the ICC’s authority.

For now, international institutions such as the UN or ICC remain the only hope for citizens.
The world must be committed to this and not relent.

The UN giveth and only the UN can take away!

The writer serves with the Anglican Church of Kenya’s All Saints Cathedral Diocese in Nairobi. The views expressed here are his own. (canonomondi@gmail.com )