The International Criminal Court (ICC) is not targeting African countries as “misconceived” by the African Union (AU), Justice Emile Short has said.
At its February summit in Addis Ababa, the AU said member states must pull out of the ICC to send a message to the international community to stop “harassing” Africans.
A withdrawal strategy adopted by members, read: “A growing number of African stakeholders have begun to see patterns of only pursuing African cases being reflective of selectivity and inequality”.
It was put together by a ministerial committee (made up of foreign ministers of Kenya, Ethiopia, Chad, Burundi, Eritrea, South Sudan, Kenya, Libya, Sudan, Madagascar, Namibia, Zimbabwe and Senegal) formed after the African Union summit in Johannesburg in 2015.
The committee’s formation followed after South Africa rejected an ICC order to arrest Sudanese President Omar al-Bashir who was wanted for war crimes in Darfur. South Africa subsequently notified the UN of its withdrawal intention.
The Gambia, under Yahya Jammeh’s presidency withdrew from the ICC but his successor Adama Barrow has reversed that move.
Also, not all member states are in favour of pulling out of the ICC. Countries including Nigeria, Senegal, Ivory Coast, Mali, Burkina Faso, Tanzania, Tunisia, Cape Verde, Botswana and Chad say they would want to continue being in the ICC.
At the February summit in Addis Ababa, the AU also agreed to push for reforms at the UN Security Council. No African country is a permanent member on the council which can refer cases to the ICC even though the court is not a UN court.
Speaking on World Affairs hosted by Dr Etse Sikanku on Class91.3FM about the ICC’s work vis-à-vis Africa, Mr Short, who served twice as a Judge on the Rwanda Tribunal in Arusha, Tanzania, said: “When you look at the African Union wanting to pull out of the International Criminal Court (ICC), that is a situation, which I think a lot of people don’t understand the real facts behind the issue. And I find it distressing that many people are supporting that decision because it is only going to leave innocent African victims without justice.”
Mr Short said as “a court of last resort,” the ICC “can only intervene in national situations where the national jurisdictions are unable or unwilling to investigate and prosecute those crimes. If national jurisdictions have the ability and the willingness to handle the crime, the ICC doesn’t come in at all.”
In his observation, the AU and Africans think the ICC is targeting the continent because all the cases currently pending before it have to do with African countries.
“Now there are nine cases before the court involving eight African countries, so almost all the cases before the court are from Africa, and, therefore, it sort of gets people to feel that ICC is targeting Africa but this is not the case. In five of those situations involving four countries, the African countries themselves referred the cases to the ICC. The African countries said: ‘We cannot handle these cases, decide these cases for us’: Mali, Uganda, Democratic Republic of Congo and Central African Republic.’ In two of the cases, it’s the UN Security Council that referred the cases to the ICC; that is Kenya and Libya … so, you have seven situations where the ICC had no hand in the investigations, and, so, when you take all of these facts into consideration, the allegation that the ICC is targeting the African countries is a misconception.”
Mr Short, the first Commissioner of Ghana’s ombudsman Commission on Human Rights and Administrative Justice (CHRAJ), said rather than the AU fighting the ICC, its members must direct their energies at pushing for reforms within the UN Security Council so as to make the five permanent members liable to the ICC.
“What the AU and the African countries should be talking about is the fact that the big powers: Russia, USA, China and so on, have failed to ratify the Rome statue and are, therefore, trying to escape accountability from the ICC. We should focus on that and put pressure on them to ratify the Rome statute, so they also become liable to the court. We should also be working at reforming the Security Council because what is happening at the Security Council is that the five permanent members, each one has a veto, and, therefore, they could prevent any of these big powers from being referred to the ICC. So, that is the injustice which we should be addressing. … It’s not about the ICC targeting Africa but most of all, I think this is what we should understand, the ICC was set up for innocent victims who do not get justice from their own countries, and, therefore, the ICC has been set up as a last resort so that they could provide justice for these innocent victims.”