Africa’s continental criminal court can no longer wait

Less than a decade ago, the detention centre of the International Criminal Court (ICC) in Scheveningen, on the outskirts of The Hague, could easily have been mistaken for a committee meeting of leaders of the African Union. One of its long-term guests was Laurent Gbagbo, a former president of Côte d’Ivoire.

From neighbouring Liberia, Gbagbo’s contemporary, Charles Taylor, kept up a punishing schedule on the tennis courts of the facility. With them there also was former Vice-President of the Democratic Republic of the Congo (DRC), Jean-Pierre Bemba.

At about the same time, Kenya’s President, Uhuru Kenyatta; and his Deputy and future successor, William Ruto, were suspects on trial before the ICC. For over five years before that, since 2009, the Court had an arrest warrant still outstanding for Sudan’s President, Omar Hassan Al-Bashir.

Even as the ICC advanced towards an arrest warrant for Sudan’s then dictator, the African Union (AU) complained somewhat vainly that “abuse and misuse of indictments against African leaders have a destabilising effect that will negatively impact on the political, social and economic development of states and their ability to conduct international relations.”

The month before the ICC authorised the arrest warrant against Omar Al-Bashir, in February 2009, the summit of the African Union’s Heads of State and Government requested the Commission of the African Union “in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010.”

In the wake of the onset of the crisis in Libya, the African Union decided that the ICC’s focus on the African continent was “discriminatory.” In Malabo, the capital of Equatorial Guinea, in June 2014, the AU adopted a treaty to confer on the court jurisdiction over international crimes. This treaty is known as “the Malabo Protocol”, after the city where it was adopted.

It was the assessment of the AU then that the Bashir arrest warrant would “seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur.” More than five years after Omar Al-Bashir’s ouster and one and a half decades after the ICC’s arrest warrant for him, the current metastasis of atrocities in Darfur provides reason to reassess the African Union’s fears.

At the time when the AU first voiced its fears and suspicions about the ICC in the first decade of this millennium, they were largely greeted with derision. This attitude was foundational to the existence of the ICC. At the adoption of the statute establishing the court in 1998, then UK Foreign Secretary, Robin Cook, infamously sniffed that “this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.”

This colonial superciliousness did not preclude African countries from recognising the opportunities in the ICC. The continent was the single largest source of resilient support to the project and process that culminated in the creation of the Court. With 33 of the 124 member states of the ICC, Africa provides over 26.6% of the signatories to the Statute establishing the Court, the largest single bloc of any continent.

In January 2004, when few trusted the Court to exercise its functions with skill or responsibility, Uganda’s President, Yoweri Museveni, voluntarily referred the situation in the country to the court, yielding up the first case received by it. By the end of the first decade of its operations, the prosecutorial docket of the ICC read like a political geography of Africa: Central African Republic, Côte d’Ivoire, DRC, Kenya, Libya, Mali, Sudan, Uganda.

A senior lawyer practicing at the ICC accused it of being “a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their influence and, particularly, in Africa.” For a long time, fundamentalists of the ICC dismissed this view as lacking in credibility.

As the current prosecutor of the Court, Karim Khan, prepared to turn his attentions to the atrocities in the ongoing crisis in Gaza earlier this year, however, all the suspicions about the targeting of Africa by the court were confirmed. In a high profile interview with the Cable News Network (CNN), last month, Mr. Khan disclosed that an un-named senior Western official seeking to dissuade him from seeking an arrest warrant against Israel’s Prime Minister, had told him that the ICC was “built for Africa and for thugs like Putin.”

At about the same time, it emerged that the head of Israel’s much feared foreign intelligence agency, the Mossad, had “allegedly threatened a chief prosecutor of the international criminal court in a series of secret meetings in which he tried to pressure her into abandoning a war crimes investigation.” According to The Guardian in London, this was part of “an almost decade-long campaign by the country (Israel) to undermine the court (ICC).” In the wake of these disclosures, those who issue gratuitous lectures to Africa about the impunity and accountability have seen nothing and said even less.

The prosecutor, whom they threatened was Fatou Bensouda, Gambia’s current High Commissioner to the United Kingdom, whose courage in defending the independence of her office as the second Prosecutor of the ICC made her the subject of punitive sanctions by the United States.

In the Malabo Protocol, the African Union, tired of protesting the pigmented project of the ICC, decided to endow an African Court of Justice and Human and Peoples’ Rights with jurisdiction over 14 crimes of an international or transboundary nature on the continent. These include aggression; war crimes; crimes against humanity; genocide; trafficking in persons, in hazardous wastes or in drugs; terrorism, corruption; money laundering; mercenarism; piracy; illicit exploitation of natural resources; and unconstitutional changes in government.

Despite the truly capacious scope contemplated by this treaty, a sustained international campaign frightened most African states into losing their sovereign nerves about the establishment of the court. The current scandal around the skullduggery and double standards in relation to the ICC’s efforts to address Afghanistan and Palestine have finally persuaded African countries to return attention to the project of an African competence on international crimes.

On May 31, Angola became the first country to ratify the Malabo Protocol. That leaves 14 more to do so before the African Court of Justice and Human and Peoples’ Rights can be established. That cannot happen too soon. When it does, the new court will have 15 judges who will sit in three sections. The General Affairs section will handle cases on mostly trade, regional integration and continental institutions.

The section on Human and Peoples’ Rights will focus on human rights cases. There will also be a section on International Criminal Law, which will have a pre-trial, trial and appellate chamber. The new Court will house one prosecutor and also one registrar.

Fundamentalists of the ICC mock the idea of an international crimes instance for Africa. In truth, in the period of just over two decades of its operations, the record of the ICC has been largely underwhelming. It can do with all the help that it can get. The continental criminal instance proposed by the AU should be seen as a paydown by Africa on precisely that kind of assistance.

Ten years after the adoption, there is no longer time to wait; Angola’s leadership in the push to bring the Malabo Protocol into force deserves to be quickly complemented by other African countries.

Odinkalu, a lawyer and teacher, can be reached at chidi.odinkalu@tufts.edu