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The exit of African countries from ICC

THE International Criminal Court (ICC) is definitely not in a good position now as Africa, the only continent whose sovereign states submitted to its jurisdiction en-masse, has started to have a rethink. Indeed, three states, namely Burundi, South Africa and The Gambia, took steps few days ago to oust the jurisdiction of the court over their territories and citizens. South Africa’s decision is particularly astonishing because it is a beneficiary of the firm international stand  against  apartheid. Thus, its seeming amnesia about the international community’s role in its attainment of freedom is rather astounding.

Ironically, the ICC initially seemed to be the bride of many African countries when they referred cases of opposition figures and rebels to it. But when it became glaring that the court would brook no sacred cows, including the officials of sitting governments, in its investigation of the cases referred to it, the story began to change. Criticism of the court became sharp, and cooperation and support for it began to wane. There are indications that some African countries will soon serve notices of their exit to the United Nations Secretary-General so that, in a matter of one year, they would have effectively withdrawn from the ICC in deference to the provisions of the Rome treaty which birthed it. The foundation for this move was laid at the African Union’s extra-ordinary meeting in Addis Ababa, Ethiopia in 2013 where the leaders decided that the ICC was interfering in the internal affairs of member states.  At the said meeting, they condemned the ICC’s investigation of political mass violence against Uhuru Kenyatta and William Ruto which they claimed violated Kenya’s sovereignty.

Having been ratified by 124 member countries, the ICC is arguably the most potent instrument of global criminal jurisdiction, despite the United States’ reluctance to ratify the Rome treaty it signed.  The United States’ seeming half-hearted support for the court and its criticism by African leaders are some of the challenges that it has had to grapple with. The current disposition of African leaders including those who are serving notices of withdrawal from the ICC is predicated on alleged bias in the court’s execution of its core mandate of prosecuting genocide, war crimes and crimes against humanity. It is alleged that there are about 30 Western countries which committed heinous crimes since the inauguration of the ICC, but that not one Western war criminal has been indicted.

Though this allegation has yet to be substantiated,  the fact that no citizen from the West has been indicted for crimes against humanity is not a sufficient ground to sustain the accusation of bias without considering the relative number and merit of the cases referred to the court from each continent.  Again, no one should pretend that the very strong judicial systems and legal structures in many of the western countries being cited are incapable of dealing decisively and dispassionately with heinous crimes. But the same can hardly be said of African countries.

Yet, the impression continues to be created in the official circles that the ICC targets African citizens, especially their leaders, for persecution and humiliation. This is rather doubtful. Even though the six cases so far tried were African matters, these cases were referred to the ICC by the affected African states in the first place. Paradoxically, the most vociferous critics of the court today are countries and Heads of State that have referred  matters to it for adjudication, prompting insinuations in some quarters that the court is being carped because it has refused to serve the selfish interests of the leaders. We enjoin African leaders to focus more on issues around the fairness and justness of the verdicts of the court on those that have been tried, and not on colour. Obviously, the people of Africa need the ICC more than their counterparts in other continents.

And given the tendency of many African leaders to be fascistic, the current criticism of  the ICC and the decision of three of them to withdraw their membership portend danger. The court’s existence has helped to caution many African leaders in power and outside of it. They know that there would be consequences ultimately for their actions. This has been quite helpful in climes where leadership recruitments in particular are seen as a do-or-die affair with ordinary citizens being used as cannon folder. Perhaps it is this potential repercussion that has triggered the exit clamour by the leaders. For instance, it is instructive to note the nexus between the investigation of pre- and post-election violence that attended the Burundian leader, Pierre Nkurunziza’s third term of office and the country’s exit from the ICC.

Nonetheless, we urge the ICC to look into the grievances of critics and demonstrate clearly that it is not biased. But it should resist the temptation to spare criminals in the corridors of power just because they are critical of its activities.