by Kimberly Brody
Senior Program Associate, Rights & Justice Initiatives at Freedom House
The International Criminal Court (ICC) routinely faces the monumental challenge of trying individuals for the most heinous crimes imaginable, including mass murder, systematic rape, recruitment of child soldiers, and torture. But this week it will confront a different type of challenge, possibly its greatest yet: the possible withdrawal of the entire African Union (AU) from the ICC system.
On October 11 and 12, the AU will meet in an extraordinary summit to discuss pulling out of the Rome Statute, the agreement that created the ICC. Such a decision would have major implications both for ICC itself and for accountability for perpetrators of human rights abuses in Africa and around the world. The nearly three dozen African countries that are currently party to the Rome Statute must vote against this proposal and reaffirm their commitment to justice for victims, an end to impunity at the highest levels for the gravest crimes, and an international system that supports the rule of law.
Contrary to the rhetoric of anti-ICC governments in Africa, the court is not a Western entity that targets Africans. In fact it was founded with the strong support of Africans. The ICC is a permanent tribunal meant to try international crimes: genocide, war crimes, crimes against humanity, and crimes of aggression. Moreover, it is a court of last resort, designed to step in only when domestic courts cannot or will not prosecute a case relating to these international crimes. When the ICC was created in July 2002, Benin, Botswana, the Central African Republic, the Democratic Republic of Congo, Gabon, the Gambia, Ghana, Lesotho, Mali, Mauritius, Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa, and Uganda had already signed on to the Rome Statute, making them some of the earliest supporters of the ICC. In all, 34 African countries have ratified the document.
Nevertheless, over the last several months, officials from a few countries, including Kenya and Ethiopia, have taken the lead in a campaign to smear the ICC as biased and intent on pressing politically motivated charges against Africans. Notably, the governments pushing the hardest for an AU withdrawal from the ICC tend to be those referred to the court for alleged wrongdoing.
It is true that all ICC indictments to date have been against Africans, specifically in Libya and six sub-Saharan countries. However, many of these cases originated in three countries--the Central African Republic, the Democratic Republic of Congo, and Uganda--that actually requested ICC involvement, acknowledging that it was necessary to ensure accountability. These countries should be working to counter the misrepresentation of the court as an anti-African project, rather than perpetuating it. Meanwhile, the ICC is currently conducting preliminary examinations in countries outside of Africa, including Afghanistan, Colombia, Georgia, and Honduras. As the court develops, Africans should support it and promote its work in other parts of the world where human rights violations have taken place. Withdrawal would not just weaken the ICC, it would also remove African voices from within the institution.
As a court of last resort, the ICC plays a critical role in stemming the tide of impunity and injustice in countries where domestic legal proceedings will not take place or the courts cannot ensure a fair trial. For victims of torture, families of the disappeared or murdered, rape survivors, children who have been taken from their homes and forced to fight for a militia or army, and civilians who have seen their communities ripped apart by armed attacks, justice is often illusive. Impunity for perpetrators creates deep and lasting grievances that can contribute to future conflict and other social ills. While ICC action may not reach low-ranking perpetrators, the prosecution of high-profile culprits can bring some sense of justice for victims in Africa and around the world. African leaders should remember these victims when evaluating the tribunal. As Kofi Annan has noted, "It is the culture of impunity and individuals who are on trial at the ICC, not Africa."
Despite the push by some governments to withdraw from the Rome Statute, there is still a strong bloc of ICC supporters in the AU, and these states must continue to be vocal in the lead up to the extraordinary session this week. Most recently, Botswana's foreign minister declared his country's backing for the ICC at the UN General Assembly, stating, "We believe that the court has a vital role to play in the fight against impunity, genocide, war crimes, and crimes against humanity and the crime of aggression." Other countries, including Lesotho and Ghana, are also poised to defend the ICC, having previously made statements in support of the body. And a total of 149 organizations from 35 countries across Africa have come together to produce a letter to foreign ministers endorsing the ICC in advance of the summit.
When the AU meets on October 11 and 12, its members should dispel once and for all the myth of an imperialist, Western court bent on imprisoning Africans. They should vote to continue to be part of a court that was created with the support of dozens of African countries, that has been bolstered by an African prosecutor, that is dealing with many cases referred by African countries themselves in order to find justice and accountability, and that is helping to build a stronger, more legitimate community of African states that stands for human rights and the rule of law. The AU's own Constitutive Act incorporates the principle of rejection of impunity; the objective of promoting and protecting human and peoples' rights; and clear principles against war crimes, genocide, and crimes against humanity, making support for the ICC a logical and constructive priority for the bloc.
In the longer term, AU members should continue efforts to strengthen the rule of law within their countries and support regional courts that could reduce the necessity of ICC referrals in the years to come. For now, however, principled African states need only reject the machinations of a small group of governments seeking to kill their positive creation.
This post originally appeared on Freedom House's blog, Freedom at Issue.