The International Criminal Court is the first permanent international court to try international crimes of genocide, crimes against humanity, and war crimes. But in an unprecedented move, the African Union (AU) is threatening to encourage its members to withdraw from the Rome Statute upon which the ICC is built. This threat comes as the AU is spearheading a campaign to pressure the ICC to drop charges or transfer to Kenya, the cases against Kenyan President Uhuru Kenyatta and Vice-president William Ruto. Both men are accused of crimes against humanity following the 2007- 2008 elections in Kenya.

In September 10, 2013, Mr. Hailemariam Desalegn, Prime Minister of Ethiopia and Chairman of the African Union wrote a letter to the ICC copying the UN Security Council (UNSC) formally demanding that the charges against both statesmen be dropped. On October 13, 2013, the African Union will hold an extraordinary summit in Addis Ababa to determine its political relationship with the ICC; African leaders are threatening a mass withdrawal from the Rome Status. If the withdrawal is materialized, the ICC will be seriously crippled; it will not disappear, since it can continue to try cases referred to it by the UNSC; but its political legitimacy will be seriously undermined given that the Court legitimacy derived from the consent of countries parties of the Rome Statute, of which Africa countries represent more than 1/3 of the total, 43 out of 122 countries.

There is no secret to the fact that, since the indictment of President Al-Bashir of Sudan on charges of genocide and crimes against humanity, African leaders have been suspicious of the ICC. In 2009 from the African Union summit held in Syrte, Libya, African leaders requested without success that the case against Omar Al-Bashir be dropped to give peace a chance in Sudan. While criticisms of the ICC by African leaders have been mounting, the latest threat of complete withdrawal from the Rome Status is the boldest move so far. Two main criticisms are leveled against the ICC by African leaders:

Selective prosecution or “race-hunting” – All the current eight situations before the ICC are exclusively from Africa (Sudan, Democratic Republic of Congo, Uganda, Central African Republic, Kenya, Libya, Cote d’Ivoire and Mali) and the thirty people indicted are all Africans, proceedings against twenty three of whom are ongoing. The profile of people indicted ranges from current and former heads of states to leaders of militia groups. These statistics have prompted Prime Minister Hailemariam Desalegn, Chairman of the African Union, to lament in front of reporters on May 27, 2013, that “The intention [of the ICC] was to avoid any kind of impunity…but now the process has degenerated into some kind of race-hunting.” It has to be noted however that four situations (Uganda, Mali, Democratic Republic of Congo, and Mali) were referred to the ICC by governments of these states.

Lack of legitimacy and Politicization of the ICC – This criticism is based on the complex relationship that exists between the ICC and the UNSC. The UNSC has the ability to refer to the Court situations over which the Court would not otherwise have jurisdiction; and the UNSC also has the ability to suspend investigations and prosecution at the ICC. The ICC therefore it is argued, is inherently influenced by the political processes and interests of the UNSC members; and the fact that three of the permanent members of the Council (Russia, USA, and China) are not even members to the Rome Statute, poses serious questions of legitimacy, to the extent that this legitimacy derived from the consent of the members.

While these criticisms hold some truth, it is worth noting that the last wave of outrage against the ICC by African leaders is in part due to the profile of the people indicted and not by the nature of the alleged crimes neither the profile of the victims. None of the arguments behind the AU campaign is framed around the plea of the families of the 1300 people killed during the 2007 and 2008 post electoral massacres in Kenya, or the more than 400 000 deaths of innocent lives in Darfur, neither the thousands of child soldiers whose dreams have been drawn in the blood of victims of the war in Eastern Congo.

With this frame of mind, how can a withdrawal from the Rome Statute help address the impunity and the injustice, the ICC was set to address in the first place?

There are talks of creation of an African Criminal Court to try crimes of genocide, crimes against humanity, and war crimes committed in Africa by Africans or non Africans; a sort of ICC for Africa. This solution may be very attractive, as it espouses the slogan “African solutions for African problems” but it is costly as well. According to an article by Mbougeng in all.africa.com, the average cost of a trial at the ICC is 20 million USD, which represents 14% of the operating budget of the AU; the International Criminal Tribunal for Rwanda had a budget of 130 million USD in 2010. These numbers should help African leaders put things into perspectives and think of more realistic alternatives as they ponder their next move.

Maybe instead of opting for a massive withdrawal, African countries should use their leverage as the majority bloc in the Rome Statute to improve the functioning of the ICC, help it put more emphasis on principles of peace and reconciliation rather than just retributive justice; which does not necessarily recognize the pains and suffering of the victims. As African head of states gather on October 13, in Addis Ababa to consider the withdrawal from the Rome Statutes, I will encourage them to also consider ways of improving national courts, the rule of law and good governance in their respective countries, so to lessen the reliance on an International or African Criminal Tribunal in the first place. Only then can justice, peace and reconciliation be served!

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