When will African leaders ever be honest with themselves on ICC?

By Wasil Ali*

September 28, 2008 (WASHINGTON) –Ever since the indictment of Sudanese president Omer Hassan Al-Bashir by the International Criminal Court (ICC), many African politicians have painted what I would call deceitful picture of the court by twisting the facts. The arguments focused mainly on why the ICC is conducting investigations in Africa only.

In my point of view I think African politicians such as Jean Ping Chairman of the African Union (AU) and the president of Benin Thomas Boni Yayi demonstrated an incomprehensible lack of information or a deliberate attempt to discredit the court for political and not judicial reasons.

The president of Benin was quoted by Radio France International (RFI) this week as saying that the ICC “doesn’t stop harassing African statesmen, only Africans”. He also asked whether that “is just a coincidence”.

No Mr. Yayi it is not a coincidence. Simply because your colleagues in Uganda, Democratic Republic of the Congo (DRC) and Central African Republic (CAR) have voluntarily referred their cases to the ICC. Nothing was forced upon them by the ICC or its prosecutor. African nations entrusted the ICC with investigating these cases and not the US, UK or France. There is nothing remotely close to “harassment”, as Yayi described it, in the way the ICC excercised jurisdiction over the cases.

The most interesting part is that Benin as a non-permanent member of the UN Security Council (UNSC) in 2005 voted in favor of the resolution referring the Darfur case to the ICC. Tanzania also supported the resolution and while Algeria abstained it did not vote against. So in reality Africa again proved that it viewed the ICC as a credible body to investigate the Darfur case. So why all of a sudden the ICC is becoming a Western institution? I have yet to see an answer to that.

Was president Yayi not aware of these basic facts before making these remarks? Knowing that, how would the average man evaluate Mr. Yayi’s remarks? It is hypocritical in my opinion.

Turning over to the case of Ghana which declared that it will not arrest Al-Bashir on its territory even if an arrest warrant is issued for him. Ghana, which ratified the Rome Statute, has an obligation to enforce the warrant. In reality Accra is telling the world that it is abandoning a treaty that it has ratified “because there are lots of issues involved which we must consider, apart from our own interest”.

So what does this say about Ghana? That it is a country which does not take the treaties it ratifies seriously? That Ghana is willing to breach on its international obligations? Is this the image Ghana wants to give to world? On the other hand what issues to be considered by Ghana more important than the plight of millions of Africans in Darfur?

How does the position of Ghana compare with that of Senegal? The Senegalese president Abdoulaye Wade made it clear that his government has obligations under the Rome Statute and will therefore be unable to receive Al-Bashir on its territory if a warrant is issued for him. The Senegalese president noted that while he has “strong friendship” with Al-Bashir he is also a “fervent campaigner for human rights”.

The AU chairman Ping in statements to the BBC this week said it was “unfair” that all those indicted by the ICC so far were African before adding that “he is not against international law”.

It always strikes me that African politicians seem to overlook the fact that the victims in all the cases handled by the ICC are from Africa. They are not Westerners or from South America. or Australia. Therefore they are working for Africans and not against them.

The questions I would direct to Mr. Ping or any other African politician making the same arguments is this; was the ICC wrong in going after the Ugandan Lord Resistance Army (LRA) for the horrendous crimes they committed against the civilian population in Northern Uganda? Was the ICC wrong in going after leaders of Forces patriotiques pour la libération du Congo (FPLC) for enlisting Congolese children under 15 to fight with them? Was the ICC wrong in going after Mouvement de Libération du Congo (MLC) leader for committing torture and rape against civilians in CAR, some of who caught HIV as a result?

If Ping answers yes to any of these questions then his arguments are valid. Otherwise any attempts to attack the ICC on the grounds that it is a “Western intrusion” is unfounded. War crimes, genocide, and crimes against humanity are not “Western” concepts and not anti-African for sure. Moreover the ICC employs a substantial number of Africans including the 1st VP, the deputy prosecutor and even the presiding judge over Al-Bashir’s case in the Pre-Trial Chamber.

What most African politicians don’t know is that initiating an investigation in the ICC is a rigorous process that must satisfy a number of criteria which most importantly include the issue of jurisdiction and the gravity of the crimes committed. If Africans think they have a situation in another continent satisfying all the requirements under the Rome Statue then they can submit a request to the prosecutor. Only then will African nations have a legitmate reason to talk about ICC double standard.

Unfortunately African nations despite forming the majority of the ICC members, don’t seem to have read or understood the Rome Statute which they ratified. Therefore it seems highly unlikely that facts or reason can influence the way the African leaders view the ICC. Many leaders want the ICC to inject politics in to their work in the same manner of judiciary in most African nations including Sudan. Interestingly enough the outgoing South African president Thabo Mbeki, who strongly backed Al-Bashir, has been indirectly accused by a high court judge this month of using his political influence in a corruption case against his rival Jacob Zuma.

I just wish that Ping and the others would come out and tell the world the real reasons why they are against the ICC and be honest about it. It has nothing to do with double standards or concern for peace in Darfur. With very few exceptions none of these African leaders spoke about crimes committed in Darfur or need to bring their perpetrators to justice. Thus the lives of Darfuris they claim to worry about is really not an issue for them. It is only understandable that Darfuris have little trust in the Africans to resolve their crisis since they view them as biased.

The closest I have seen to an honest leader opposed to ICC is president Mbeki who said that indicting Al-Bashir is bad “regardless of whatever facts might be advanced”. I respect the fact that Mbeki did not hide behind articulate words to try and justify his position.

I personally think that many African leaders fear the ICC because they have something to hide. The only people who would fear a court of law are the criminals or those who aid them. Thus by defending Al-Bashir they are essentially protecting themselves. There is no such thing as “reconciliation” techniques to resolve the grievances by Darfur victims. This is just another name for a plan to let Al-Bashir get away with it. Even the Islamic law, which Khartoum claims to be its source for legislation, clearly states that punishing criminals is necessary for the good of the whole society. “In [the law of] just retribution, O you who are endowed with insight, there is life for you, so that you might remain conscious of God!” (Ayah 179: Surah Al-Baqarah).

The right of forgiveness in Islam lies with the victims only. In this case the people of Darfur have overwhelmingly welcomed the ICC move. They are the ones who have to decide how they want justice and not the Arab League, African Union or the government of Sudan.

* The author is a Sudan Tribune journalist, can be reached at [email protected]