Originally Published in October 2013: https://africlaw.com/category/contributors/wonderr-freeman/

By. Wonderr K. Freeman

On 13 October 2013, leaders of African states meet in Addis Ababa to consider a possible withdrawal from the Rome Statute creating the International Criminal Court (ICC). African leaders do not find favour with the ICC’s pursuit of Kenya’s “big men”- President Uhuru Kenyatta and Deputy President William Ruto. The AU draws links between the indictment of Kenyatta and Ruto with that of President (Omar al-Bashir) and Laurent Gbagbo of Ivory Coast. Having drawn such links, the AU concluded that the ICC is a western plot to finish-off African leaders. What is striking of the AU’s ICC analysis is the complete lack of consideration for the victims, 99.9% of whom are Africans. It seems as though these grave crimes against humanity is of much less importance when a few “big men” stand accused.  What seems to be of extreme importance in the minds of African leaders is that, once again, one of their kind is wanted for crimes against humanity.

African heads of states are rarely united on any issue relevant to development of the continent, such as common currency, free movement of people and products, military interventions etc. However, when it comes to protecting the likes of Bashir and Kenyatta, the AU is zealously united – without consideration to the victims of atrocities.

In the event that the AU withdraws from the ICC, what would be the alternative for average Africans who seek justice for their sufferings? The AU does not have any forum with the mandate to investigate and prosecute crimes for which the ICC exercises jurisdiction. The AU is still conducting “studies and workshops” over how to incorporate genocide and other crimes against humanity into the mandate and jurisdiction of the African Court on Human and Peoples’ Rights. The AU does not claim that the crimes were not committed, only that the accused are “so important” that justice should be deferred – at the expense of countless victims.

Kenya, as a state party to the ICC, had a duty to investigate and prosecute persons implicated in the post-election violence of 2008 (ref: article 1 and article 17), which duty when obliged precludes admissibility of the case at the ICC. It is important to note that under the Rome Statute, the official status of the accused is irrelevant (article 27). Article 27 specifically states: … (1) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament … shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. …

Kenya did attempt to investigate, but the Waki Commission which, was established to probe the violence, failed and its efforts were passed on to the ICC. Had Kenya thoroughly investigated and prosecuted those responsible, at the domestic level, there would be no ICC indictments. Kenya’s failure to live up to its obligation triggered the ICC prosecution under article 15.

Since Nuremberg, international crimes have not gone unanswered by the international community. There have been similar prosecutions in Yugoslavia, Bosnia, Rwanda and Sierra Leone. The AU racism charge has no basis in history. In this new world order, leaders are increasingly being held to account for crimes that rattle the conscience of the world and the senseless violence which occurred in Kenya was one such for which there must be accountability without compromise.

The AU argues that other powerful nations such as Russia and the United States have not signed the Rome Statute, yet these very nations are only too happy to refer Africans to the ICC via the United Nations Security Council (UNSC). Apart from two referrals by the UNSC (Libya and Sudan’s Darfur), the majority of cases under the consideration of the ICC have been referred by state parties, of which 34 are African states.

When international conventions are drafted, state parties are obliged to review such conventions. In the case of the Rome Statute, articles 27, 28 and 29 were integral part of the agreement and were unambiguous on accountability. If one analyzes the current AU position, the only reasonable conclusion is that the AU member states either (1) did t review the Statute or (2) did review the Statute, but fail to appreciate the gravity of the provisions. Neither scenario is unacceptable under international law.

When the AU meets by mid-October 2013 in Addis Ababa to consider their anticipated ICC withdrawal, the AU might want to consider victims of atrocities in Africa, and the possibility of recurrence in Africa and the need for accountability. Asking for a few “big men” in Africa to face their accusers in an international court of law is not asking for too much, is it?