Should we expect a “domino effect” reaction after South Africa made plans to leave The Rome Statute of the International Criminal Court(ICC)?

South Africa was subsequently followed by Burundi and The Gambia.

Let us delve into this matter for a minute!

As we all might have been aware by now that The African Union(AU) held it’s 28’th summit on the 22 to the 31 of January, where it took a gallant decision for all African States to collectively withdraw from The Rome Statute of the International Criminal Court(ICC).

Although the decision is not a binding decision; it is still a very much significant decision, more especially coming from a body such as the AU. The decision makes a very bold and suggestive statement as to where Africa as a continent stands with the ICC.

The AU has been at odds with the ICC for quite some time now. The differences between the AU and the ICC are instigated by the biasness of the ICC towards African leaders—when it is dealing with cases of genocide, war crimes and crimes against humanity.

The ICC has narrowly focused on Africa when pursuing such crimes, subsequently choosing to turn a blind eye on perpetrators in other regions of the world where the ICC also has jurisdiction. For instance; all 8 open investigations pursued by the ICC are on African countries.

The aforementioned reality of-course intrigues questions pertaining to the degree of independence of the ICC. It is blatantly evident that the ICC is inappropriately targeting African leaders. Further cementing the lingering views that—

“the ICC is a neo-colonialist institution peddling a Western agenda that seeks to control African politics through ICC investigations and prosecutions.”

With that being said. I believe that we need to get our heads rolling on this matter! We need to be analytical and ask ourselves questions. We need not to just follow political rhetoric, but we need to also exercise our own independence of thought and THINK.

I would like us to think out of the box. For the purpose of optimal pensiveness I would like us to bypass the idea of—”the ICC inappropriately targeting African leaders” for a second.

The question we should be asking ourselves is: “WHY AFRICA?“. Instead of crying foul because Africa is being inappropriately targeted, let us rephrase the question:

“out of all the continents why is it that, Africa is the only one being targeted?”

This question is a very imperative question; because it can only be fair for the AU to claim that African leaders are being inappropriately pursued by the ICC, only when all possible reasons have been put to light and there is no justification to target Africa based on those reasons.

I believe there are only two reasons on whose basis we can claim there is no justification for the ICC to pursue African leaders. That is on the basis of advancing imperialism of the western States on the African continent and meddling in African affairs.

The above reasons are very complicated and difficult to prove as elements being peddled by the ICC. Depending on which school of thought and perspective you are viewing them from, you can almost form a variety of opinions. There is a possibility however of the ICC peddling those elements; although it would be very difficult to prove, especially the element of imperialism.

Given the difficulty of an objective test; what would be the most accurate test is: the full confidence of the African States who are signatories of the ICC, in the independence of the ICC. The absence of such confidence in the independence of the ICC, is in-itself a detriment to the functional relations of the individual States and the ICC.

Nevertheless, even with a thousand of reasons expressed: we all agree to the effect that our African continent has a challenge of jurisprudence, which leads to numerous atrocities against humanity. Hence there is a need for a Court of law which will protect citizens against untouchable leaders who commit and preside over these atrocities.

Africa is one of the continents within which the worst human rights atrocities are committed in the whole world.

The situation of human rights in Africa is generally reported to be poor; and it is seen as an area of concern according to the UN, governmental, and non-governmental observers.

All statistics agencies referring to genocide, crimes against humanity and war crimes have African States topping their lists. Those are objective statistics that reflect the reality. We must acknowledge that –human rights as a legal concept is a relatively recent notion in Africa, thus most African States have no proper established jurisprudence as South Africa might have.

In addition to that —The African Union(AU) has failed to establish a human rights tribunal that will be effective and combat the human rights violations facing the African continent. The AU fails dismally to exercise it’s authority as it pertains to protecting citizens against human rights abuses.

The National Geographic claims that only 13 African nations can be considered truly democratic, that is out of 54 nations. In such a case scenario, it is expected that there will be an adverse abuse of human rights.

The African Court on Human and Peoples’ Rights (the Court) is a continental court established by African countries to ensure protection of human and peoples’ rights in Africa. It complements and reinforces the functions of the African Commission on Human and Peoples’ Rights. This court has failed Africa.

Although a number of African countries have ratified the treaty, only seven countries have made the declaration recognizing the competence of the Court to receive cases from NGOs and individuals in their territories. Only seven out of 54 countries! That is testament to the fact that most African States do not recognize the court.

In the meanwhile; all 8 of the countries with open investigations undertaken by the ICC are African countries. Half of them asked for the court’s involvement. An additional two got to be investigated through an action of the U.N. Security Council. It’s only the Kenya and [Ivory Coast] cases that were opened through the prosecutor’s own initiative.

This is not a positive outlook at all. My interpretation of the above is that; the African Union(AU) failed those human rights violation victims to a point where their last resort was the ICC. The fact that the ICC intervenes in African issues shows that our leaders have failed to create a working justice system for the continent.

Where was The African Court on Human and Peoples’ Rights when such crimes as investigated were taking place?

Deducing from the above; it is evident that Africa needs the ICC, not the other way round. I want to believe that African leaders know that as much as I do, but how did they come to a decision of leaving the ICC? What message are they sending to the people suffering human rights atrocities perpetualy in the continent? Wasn’t there a better solution?

I am of the view that the decision to leave the ICC was more of a political decision, than it was a legal question. Precisely because the AU agrees to the effect that the cases investigated by the ICC are indeed cases of human rights atrocities, however they hold a view that the ICC is narrowly biased in their investigations, fair enough. That means the AU does not have a problem with the legalities of the investigations pursued, but the politics.

What is most concerning about this matter is the fact that; the AU is not giving adequate attention to how it will deal with human rights atrocities in the continent. They are not saying a thing concerning establishing an alternative institution to the ICC. The vigour they are displaying to leave the ICC should be the same vigour they display to protect Africans against: crimes against humanity and all related atrocities.

My recommendations to the AU would be to re-establish the treaty of The African Court on Human and Peoples’ Rights. The new treaty should be legally binding with the same objectives as the ICC, but obviously restricted to the African continent. This new treaty should give a room for input to all African nations; so that they can be able to have an input that satisfies them in the new establishment and decide how the court should function together. The objective should be to have a continental court that all African nations have confidence in.

In addition, the AU should ratify an agreement to enter the ICC as the AU, not individual countries. The reason for such an agreement would be to the effect that the only time the ICC would be able to act on any African State would be when the AU has referred a case to the ICC. The cases that would be referred to the ICC would be cases the AU feels should be referred.

The aforementioned recommendations would eliminate interference with the domestic affairs of a sovereign African nation by the ICC. The recommendations would also eliminate the sense of undermining the authority of the AU by the ICC. In that manner I believe the African continent would be independently responsible to deal with it’s own problems, but with the international community open to give a helping hand, should it be required.

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