One African president speaks truth to power on the ICC

Botswana’s President Ian Khama lends support to the ICC’s work at Assembly of States Parties in New York

Published on 14 December 2011 in ISS Today

Max du Plessis,  Senior research associate, International Crime in Africa Programme, ISS Pretoria Office and associate professor at the University of KwaZulu-Natal.

Monday 12 December, a cold and cloudless day in New York, saw the start of the 10th session of the Assembly of States Parties (ASP) to the International Criminal Court (ICC). 

During this session, the ASP will select six new judges, decide on the ICC’s budget for 2012, and formalise the consensus candidate for the next Chief Prosecutor of the ICC. About the Prosecutor: already early in the morning on Monday the delegates were pumping hands and slapping backs, congratulating Fatou Bensouda – the current Deputy Prosecutor of the ICC – for being elevated to take over the wheel from her boss, Luis Moreno Ocampo.  Ocampo, who has focused his term on African prosecutions, steps down in mid 2012 after eight years at the helm.

It is a good day for Africa when Bensouda, an erudite and warm woman who was previously Justice Minister and Attorney General in The Gambia, becomes the world’s most powerful prosecutor. Nevertheless, the fact that all the ICC’s cases are in Africa, together with fundamental concerns about the UN Security Council’s role in the work of the court, has resulted in criticisms that the ICC is a neo-colonialist institution that unfairly targets the continent. Relations between the court and some states, as well as the African Union (AU), are now strained. Of most concern is that several African governments, including states parties to the Rome Statute, have publicly refused to cooperate with the court in the arrest and surrender of suspects.

Ocampo has borne the brunt of Africa’s dissatisfaction with the court. As a result, some Africans have high expectations that Bensouda’s ascension will deliver a prosecutor less inclined to keep the ICC’s focus exclusively on Africa. Reducing resistance to the court from African governments is a complex and politically charged task, but one that will be an immediate and continuing priority for the new prosecutor.

The immediacy of that task, let alone its complexity, has been accentuated by developments in just the past month.

The most recent turn was a further African affair for the court: involving the surrender and transfer to the ICC of former Ivorian President Laurent Gbagbo on 29 November. Gbagbo was transferred to The Hague by Ivorian authorities pursuant to an ICC arrest warrant issued under seal six days earlier on 23 November 2011. His transfer to The Hague comes almost a year to the day after Côte d’Ivoire`s disputed presidential election that resulted in six months of violence.  Gbagbo is charged with bearing individual criminal responsibility, as indirect co-perpetrator, for crimes against humanity allegedly committed in his own country.

Gbagbo is the first former head of state to be transferred to the ICC.  He joins a list of senior African statesmen sought by the Court for international crimes, including arrest warrants for Sudanese President Omar Hassan al-Bashir and former Libyan leader Colonel Muammar Gaddafi. Al-Bashir continues to evade justice, and Gaddafi met his end injudiciously in Libya in October 2011.

Gbagbo’s destiny with The Hague occurs alongside other notable developments in the past month. Most significantly is the decision by a Kenyan High Court judge ordering Kenyan authorities to arrest President al-Bashir.  That order comes after Kenyan authorities allowed al-Bashir safe passage through Kenya in violation of Kenya’s international obligations to cooperate with the ICC in securing his arrest; an obligation, which Kenya’s Parliament has domesticated in its International Crimes Act of 2008.  The case was brought by Kenyan civil society, and the order is directed at the Minister for Internal Security and the Attorney General, who were the Kenyan government respondents in the application.

In the diplomatic equivalent of a blowback, and proving the increasing relevance of international criminal law (and its potential political ramifications), the Sudanese government ordered the immediate expulsion of Kenya’s ambassador to Sudan. In addition the Sudanese government recalled its representative in Kenya. This backlash against the ruling included Malawi’s President, Bingu wa Mutharika, reportedly condemning the ruling while addressing a meeting of the East African Community.  One of Kenya’s leading newspapers carried a response from Kenya’s foreign minister, Moses Wetangula, to the effect that this was “a judgment in error” that “failed to balance the delicate international relations.” He has said Kenya will find it difficult to obey the court decision.

The AU also weighed in. The AU Commission issued a statement on 5 December saying that its chairperson “is closely monitoring the developments in the relations between the Republic of the Sudan and the Republic of Kenya”. The statement comes on the back of troubling decisions by the AU in which it called on its member states not to cooperate with the ICC in arresting African leaders, including, most recently, in respect of Colonel Gaddafi (and that despite the blood-letting he had personally unleashed in Libya, and despite the fact that the UN Security Council unanimously with South Africa’s positive vote referred Gaddafi’s crimes to the ICC for investigation).  In its 5 December statement, the AU trotted out that it had “no doubt” that “the entire membership of the AU will continue to comply scrupulously with the African common position on the respect of the immunity of the President of the Republic of the Sudan, Mr. Omar Hassan al-Bashir, as well as that of all the other incumbent African Heads of State.” 

Attempting to capture (in both senses of the word) a common African position is not as easy as the AU would have it.  That is made clear by what Botswana’s President Seretse Khama Ian Khama said in his keynote address to the ASP plenary this morning in New York.  President Khama is not blind to what he described as “the perception that the ICC unfairly targets African countries”.  But, refreshingly and honestly, he is also not blind to the irony, as he put it, “that these crimes are perpetrated, in most cases, by the very leaders who are supposed to protect the people”.  Khama also regretted the AU’s decision in June 2011 “not to cooperate with the ICC over the indictments and arrest warrants issued against some leaders”, which in his view “is a serious setback in the battle against impunity in Africa” and which “undermines efforts to confront war crimes and crimes against humanity which are committed by some leaders on the continent”.

It must therefore be asked: what common African position is the AU’s Commission dreaming of?  If there is a dream worth focusing on, it might be one that President Khama set out so forcefully in a UN building on the East River: that is, that we all, including African leaders and the AU, “need to have the political will and the moral courage to hold accountable, without fear or favour, anyone in authority – including a sitting Head of State – when he or she is suspected of having committed crimes against innocent people”. 

The world now has a new chief prosecutor of the ICC, and she is African.  The world has a functioning and permanent International Criminal Court, and its first cases are in response to appalling African atrocities.  And the world is looking on as powerful African elites scramble to undermine the work of that Court.  The Court is not beyond reproach.  It can and must do its work faster; it can and must open cases outside of Africa to deserving cases; and it can and must perform its outreach and publicity better.  But at the same time it’s important for the continent to hear clearly the words of President Khama as he speaks truth to the AU’s power: that is that the AU’s negative undermining of the ICC “places Africa on the wrong side of history”, and “is a betrayal of the innocent and helpless victims of such crimes”.   

Max du Plessis is currently part of an ISS delegation participating in the ICC ASP meeting in New York.  ICAP is also assisting the Botswana Government in drafting its domestic legislation to incorporate the Rome Statute of the International Criminal Court.