In fact, how is this Fatou Bensouda’s or the ICC’s fault? African leaders should for once blame themselves and not use Fatou Bensouda and the ICC as a scapegoat for their crimes, YES SIR agreements that backfired and their seeking of immunity. For too long, when it does not turn out as planned, they are quick to blame it on racism, colonialism and neo-colonialism – hiding under the mask of Pan-Africanism.
Before Bensouda’s ascension to becoming the Chief Prosecutor of the International Criminal Court, African leaders accused the tribunal of bias and racism after then prosecutor Louis Ocampo indicted Sudanese President Omar al-Bashir of genocide and war crimes.
African leaders, mostly dictators, ruling like monarchs in their nations quickly realized the world may have just found a way to hold them accountable for the repressive nature of their regimes. Many of Africa’s despotic regimes did not take the risk to pull out of Rome Statute, knowing fully well there will not only be a backlash but will force activists to use their withdrawal to draw attention to the rights crisis and abuses in their nations and force development partners to put sanctions, travels bans, assets freezes and aid suspension in place.
But the withdrawal of South Africa, a nation seen as the trendsetter for democracy and respect for human rights in Africa has opened the floodgates for African dictators to withdraw from the court.
But is the ICC really racist or dictators for the most part have decided to run and use racism as a cover to avoid accountability?
It was African leaders that pushed for an African to head the ICC. African leaders were the most instrumental in Fatou Bensouda, a lawyer from mainland Africa’s smallest nation – The Gambia to become the Chief Prosecutor after Ocampo.
It becomes a contradiction to accuse an institution headed by an African of racism or in the words of The Gambia’s government, an “International Caucasian Court.”
The withdrawal of Burundi, The Gambia, and South Africa has generated mixed reactions. Fact: there are 10 cases under investigation by the court and nine are in African nations. But one fact in this “racism” claim remains unchecked. Fact: cases are referred to the ICC by African governments themselves.
The ICC relies on governments to execute arrest warrants and provide evidence, explaining why Al-Bashir was not arrested in South Africa. South Africa came under sharp criticism and such diplomatic complications are the main reason for South Africa’s withdrawal.
Chief Prosecutor Fatou Bensouda lost the case against President Uhuru Kenyatta and Vice President William Ruto of Kenya because Kenyan authorities refused to cooperate, obstructed finding missions and intimidated witnesses.
African governments are quick to ratify treaties, conventions, and protocols that come from the UN or any powerful nation, as long as there is a possibility of financial gain (most especially) without considering how such can be incorporated into their local laws and society. The U.S. has not ratified the Rome Statute and described it as flawed, adding that it violates national sovereignty, and could be politicized.
When President Bill Clinton was leaving office, he advised President George W. Bush strongly not to submit the Rome Statute treaty to Congress for consideration.
I saw in many arguments from Africa that U.S. citizens are not being tried by the court including former President George W. Bush. I also saw claims of atrocities in Syria or Iraq are not being addressed. Fact: ICC does not have jurisdiction in any of these nations, because unlike the African states, they are not a party to the Rome Statute, and so are other world powers like China and Russia that are backing the regime of Bashar Al-Assad.
One fact unknown to many Africa is this: the U.S. has signed agreements with over 90 countries to prevent turning over U.S. citizens to the ICC without U.S. government permission.
An agreement between the U.S. and these nations, one of such signed by The Gambia’s then Foreign Minister Baboucarr Blaise Jagne and former U.S. Ambassador Jackson MacDonald states that: when The Government of the Republic of The Gambia extradites, surrenders, or otherwise transfers a person of the United States of America to a third country, the Government of the Republic of The Gambia will not agree to the surrender or transfer of that person to the International Criminal Court by a third country, absent the expressed consent of the Government of the United States of America.
The U.S. will reciprocate the same for The Gambia and the other nations it has this agreement with.
The U.S. says it will investigate and prosecute its own officials, military personnel and other nationals alleged to have committed crimes within the jurisdiction of the International Criminal Court. African nations again are the majority that has signed such an agreement preventing the expulsion and surrender or transfer of U.S. citizens to a third country for the purpose of surrender to or transfer to the ICC.
Again, I am wondering then where does the bias argument come from then or how would George W. Bush be prosecuted when African nations agreed not to transfer U.S. citizens to the ICC?
The African Union said it is establishing an African Court of Justice to try war crimes, genocide and crimes against humanity. A trial of such a court successfully prosecuted and jailed former Chadian leader Hissine Habre in Senegal. African leaders are scratching term limits to die in power, and for those without term limits, they are clinching on to power by reliving the life of Idi Amin or Moammar Ghadaffi.
Will an African Court of Justice that will be prosecuting the very crimes that ICC would be, be any different? The court will also rely on the governments to execute arrests and provide evidence. Whiles, it is a great initiative to have an African Court of Justice, the court may find it difficult to indict, prosecute and convict any sitting African leader for crimes against humanity, war crimes or genocide. The ICC is already facing these challenges and likely to be more independent and an impartial than one controlled and created by sitting African head of states.
For most parts, for the ICC and the African Court of Justice, it will be ousted African leaders, opposition leaders and runaway fugitives that will be prosecuted by having governments cooperate. But that fits their interest. It is that nature of international politics at play. It reminds me of one more fact: these nations withdrawing from the ICC do not mean they will not be held responsible for their international obligations.
Though African leaders are attempting to sweep accountability under the rug, they must remember that leaders can be ousted and new ones can reinstate their nations back into the ICC, giving the court the jurisdiction to prosecute those that have been kicked out. Let’s call that the politics of the international justice system, but merely withdrawing from the ICC does not mean that African leaders will not be held accountable for their international obligations. Sanctions, travels bans, assets freezes and aid suspension will come in handy. What they were once trying to avoid now becomes an instrumental leverage, especially for pro-democracy and rights campaigners. They must remember this.
The question of bias by the ICC become questioned when President Pierre Nkurunziza signed for Burundi to leave to avoid prosecution for the post-electoral violence and rights abuses that his government is said to be complicit of, and for The Gambia, its leadership is just mostly following in the footsteps of others, as quickly as they can, before many others do so to look like a superpower, bringing unnecessary attention to the nation, when the world was actually paying no attention to the rights abuses of its government.
African leaders never take responsibility for the wrongs they do. Some have stayed for decades in power and still blame more than half a century dead colonialism of their under development, which is a result of their corruption, and lack of vision and foresight. I hear many accuse the IMF and World Bank with powerful foreign nations of using aid as a way to colonize and dictate policies in Africa again; yet, they failed to take Dambisa Moyo’s advice in Dead Aid. Again, they signed agreements with nations like to U.S. to protect their citizens, yet claim bias.
If the ICC is a Western structured villain targeting Africans, at least this so called vice was not forced unto them as they would say is colonialism. They signed it on their own accord and had side agreements sabotaging the tribunal. Do we blame Western nations for that too?
Many find themselves falling for the Pan African filibustering of their leaders who treat their own people worse than the colonialist did. You will not be surprised that most of the countries that we would see withdrawing are those with tyrants – for the most part that’s what they are – who have taken pitiless measures to stay in power by executing, imprisoning and torturing their own people.
Many African leaders are heading to the polls and scratching term limits out of their constitution. Those without term limits use repressive means to hang on to power. We are more likely to see post-electoral violence and brutal crackdowns on dissidents, immigrants, opposition activists and rights campaigners in nations that have pulled out of the ICC than any other in Africa. Those that are supposed to keep a watchful eye and help hold them accountable will turn a blind eye in the name of “Africanness.”
Pan-Africanism itself has transformed over decades from blaming colonialists to building economically, scientifically and technologically advanced societies across our continent to create progressive nations.
I believe, after all, African countries and our leaders have been biased to themselves and once again, should for once blame themselves and not use Fatou Bensouda and the ICC as a scapegoat for their crimes, YES SIR agreements that backfired and their seeking of immunity.