By Sarah Logan
The African Union is working to set up the African Court of Justice and Human Rights (ACJHR), a continent-wide court that would prosecute leaders for crimes against humanity, war crimes, and genocide. But in early July, news surfaced that African leaders had passed a resolution granting themselves, and their vaguely identified “senior officials,” immunity from prosecution by the proposed ACJHR. The vote gives sitting heads of state and government, as well as their senior officials, a get-out-of-jail-free card before the ACJHR even becomes operational.
Apparently, the decision took place in a closed-door session at the African Union (AU) summit after journalists and media had been expelled, leaving the only official evidence of the decision hidden in an obscure paragraph in a post-summit communique. Fittingly, the vote took place in Equatorial Guinea, where Africa’s longest-serving president, Teodoro Obiang, has ruled by decree for the last 35 years after seizing power from his uncle in a military coup in 1979.
This resolution is the latest in a series of attempts by African leaders to oppose what they see as the ICC’s disproportionate targeting of African leaders. It comes while cases against two sitting African presidents (Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan) and one former president (Laurent Gbagbo of Ivory Coast) remain before the International Criminal Court (ICC) in The Hague.
Over the last year, anti-ICC sentiment has been whipped up primarily by Kenyatta allies like Ethiopian Prime Minister Hailemariam Desalegn and Ugandan President Yoweri Museveni. Under Desalegn’s chairmanship, the AU lodged requests with the ICC to defer the cases against Kenyatta and his vice president, William Ruto, both of whom are charged with crimes against humanity in connection with post-election violence in 2007. The AU wanted the cases against Kenyatta and Ruto to be moved to local Kenyan courts. After the ICC turned down the deferral requests, the Kenyan parliament voted to withdraw Kenya’s signature from the Rome Statute, which established the International Criminal Court. This measure was part of an effort to obstruct the ICC’s jurisdiction over Kenyan nationals in future cases.
Looking at the ICC’s track record, one could perhaps see why African leaders feel as though they are being singled out by the ICC—the ICC is currently pursuing more cases against Africans than nationals of the rest of the world put together. Since its establishment in 2002, the ICC has investigated 20 criminal cases in eight African states. These figures, however, only tell part of the story.
A look at the broader context of ICC prosecutions reveals that the ICC is not, in fact, disproportionately targeting African leaders. This is so for two main reasons: first, Africa has more signatory states to the Rome Statute than any other region (34 out of the 122 signatory states are African countries).
By ratifying the Rome Statute, African countries took a bold step to advance their commitment to human rights, something leaders in the United States, Israel, China, and other countries should also do. They must follow through on this commitment. While African leaders may ask the question “Why should we be members of the ICC if other countries are not?” the urgency to protect human rights (and by default, human lives) should not be a question of choice. Instead of defaulting on their promise, African countries should pressure others to join.
Signing the Rome Statute granted the ICC jurisdiction over signatory states, specifically empowering it to prosecute nationals of those countries for war crimes, crimes against humanity, and genocide. It should therefore come as no surprise that the ICC has a comparatively intense focus on Africa, given the continent’s dominance among signing parties.
Second, the ICC only has jurisdiction over crimes that took place after the Rome Statute came into effect in 2002. Therefore, some of the grievous human rights abuses that took place in other parts of the world are beyond the scope of the ICC’s power. Prosecution for some of those crimes continues under ad hoc tribunals, including the Khmer Rouge Tribunal in Cambodia and the International Criminal Tribunal for the Former Yugoslavia. Crimes in these non-African countries were indeed prosecuted, but because these crimes took place before 2002, they were not prosecuted by the ICC.
The ICC only prosecutes cases where home countries have been unwilling or unable to prosecute offenders. Domestic courts in African countries have consistently failed to prosecute sitting presidents and senior government officials for grievous human rights abuses. Given the paucity of independent judiciaries in Africa, this trend is unlikely to change.
Consequently, a culture of impunity has taken root across much of the continent, where government leaders shirk accountability for their actions and are seen as being above the law. Passing this resolution has only served to further reinforce Africa’s culture of impunity, officially putting sitting presidents and senior officials beyond the reach of the ACJHR.
Ironically, the resolution serves to undermine African leaders’ own cause. Instead of removing cause for ICC intervention by strengthening domestic and regional judicial bodies so that they may prosecute African leaders themselves, they have once again shunned an African court. It follows attempts by the AU’s Panel of Eminent Persons several years ago to establish a local tribunal to prosecute those accused of crimes against humanity in the aftermath of Kenya’s post-election violence in 2007. Twice the establishment of this tribunal was defeated by the Kenyan parliament, indicating a lack of political will to hold Kenyatta, Ruto, and others responsible for their actions before a local court or tribunal.
Now that Kenyatta and Ruto are facing prosecution by the ICC, however, the Kenyan government and the AU wanted their cases deferred to the same domestic courts that had been unwilling or unable to prosecute their cases when the crimes took place. It is no wonder that the ICC declined to defer their cases. And now that the ACJHR has no jurisdiction over sitting presidents and senior officials for crimes against humanity, there can be no question of deferring Kenyatta and Ruto’s cases to the ACJHR.
If African leaders had wanted to avoid being brought before the ICC, then supporting and strengthening the ACJHR should have been their first priority. Not only would they then have had grounds for having cases deferred from the ICC to the ACJHR, but African matters would not have been referred to the ICC in the first place. But since African leaders have now hamstrung the ACJHR, they will continue to face the threat of ICC prosecution.
Alternatively, instead of focusing on how to avoid being prosecuted by various criminal courts and tribunals, African leaders could stop perpetrating war crimes and work to bolster their own legal systems to adequately address them. Then, they may find that the ICC has no reason to target them, disproportionately or otherwise. Moreover, African leaders should keep the promise they made to their people when ratifiying the Rome Statute and pressure other non-ratifying and non-signatory states to do the same.
Sarah Logan is a Zimbabwean lawyer who has recently completed a MPA at Columbia University’s School of International and Public Affairs.