January 30, 2014

Three ambassadors to the UN and a leading human rights expert addressed the recent fallout between numerous African Union member states and the International Criminal Court at a January 23 panel discussion hosted by the United Nations Studies Program. The event was organized and moderated by UNSP Director Elisabeth Lindenmayer.

Panelists at the forum, titled “The Relationship Between the International Criminal Court and the African Union: What Went Wrong?,” included the ambassadors of Botswana, Kenya, and Liechtenstein, and Richard Dicker, director of the International Justice Program at Human Rights Watch.

The event was opportune, as its timing coincided with a week-long AU summit at Addis Ababa even as some AU countries are contemplating the possibility of withdrawing from the ICC.

One such country is Kenya, whose president and deputy president — Uhuru Kenyatta and William Ruto — have been charged by the ICC for various crimes against humanity related to post-election violence in 2007. Kenyatta and Ruto were elected to their current positions in March 2013.

On the day of UNSP’s event, Ruto was at The Hague for his trial, which officially started in September 2013. On the same day, the ICC asked for a three-month postponement for the start date of its trial against President Kenyatta, which was supposed to begin on February 5.

When asked what has changed in the relationship between the AU and the ICC since 2009, Ambassador Charles Ntwaagae of Botswana pointed to a change in “tactics and approach.” Ambassador Macharia Kamau of Kenya said that the ICC “was supposed to be about prosecuting individuals, but went wrong when prosecutors began to conflate individuals with nations.”

The ICC was established in 2002 and investigates crimes of genocide, crimes against humanity, war crimes, and crimes of aggression by individuals. All eight of the ICC’s active cases relate to countries in Africa, but Lindenmayer pointed out that four of them — Central African Republic, Democratic Republic of the Congo, Mali, and Uganda — were referred to the Court by those governments. Another two, Sudan and Libya, were referred by the UN Security Council, and the remaining two, Kenya and the Ivory Coast, were initiated by the ICC prosecutor. Furthermore, the largest bloc of countries that are signatories to the Rome Statute, which established the ICC, comes from Africa, and five of the 18 ICC judges, as well as the chief prosecutor, are African nationals.

Kamau pushed back against the notion that Africa is the “theater of the worst atrocities,” referring to the 2007 violence in Kenya as “28 bad days in our 50-year democracy.” He said that other parts of the world witnessed high body counts and severe human rights abuses throughout history. He added that the ICC’s success is contingent on honesty, transparency and equality—principles that he believes are not being observed.

Dicker, of Human Rights Watch, concurred by noting that the Rome Statute is a “voluntary contract” and many great powers — most of which are not party to the treaty — hold themselves outside of it, thinking they cannot be touched. He said it is hypocritical that that these same nations, which hold prominent positions in the Security Council, do not accept the same jurisdiction in their own countries that they authorize for Sudan and Libya is hypocritical.

In response, Ambassador Christian Wenaweser of Liechtenstein, who formerly served as president of the Assembly of State Parties to the Rome Statute, said that “the institution has applied the law that we have given to it.” He noted that the mission of the Court was to ensure no impunity for large-scale crimes in systematic ways and no immunity for anyone — including heads of state — and he concluded by saying that because the ICC did its job, it was not fair to be attacking the institution.

Ntwaagae pointed to the “complementarity” principle of the ICC, which allows it to act only when local remedies are insufficient. He said that these difficulties are faced in Africa due to lack of capacity and political will, and therefore, the ICC is filling a gap in Africa. According to him, a pan-African system of justice exists, but it is not as robust as the ICC.

Lindenmayer stressed the importance of the international system having an institution devoted to the principle of justice. “The voice of victims is important, and there is no peace without justice,” she said.

While a variety of opinions were presented regarding the next step in the AU–ICC relationship and panelists took diverse views of the present situation, all panelists wished for the ICC to succeed and thrive in the future.

— Isabela Cunha MIA ’15 and Ryan Berger MIA ’15

photographs courtesy of Laura Daniels