03 June 2013

By Reason Wafawarova

THE African Union has finally found a bit of teeth as the continental body seems ready to confront the humiliating treatment Africa has suffered at the hands of the International Criminal Court since the tribunal was formed 11 years ago. Africa must simply exit the racist ragtag court masquerading as an international court.

At its just ended summit the AU resolved to implore the UN Security Council to refer the charges preferred against president Uhuru Kenyatta of Kenya and his deputy William Ruto back to Kenya's jurisdiction, unequivocally citing unbridled bias on the part of The Hague-based international tribunal. The Union has also asked the UN Security Council to defer the proceedings against President Al Bashir of Sudan, again questioning the political motivations of prosecutor Luis Moreno-Ocampo.

The ICC Prosecution has responded by charging that the African Union is disregarding the "unflinching commitment to combating impunity and promoting democracy, the rule of law and good governance throughout the entire African continent in conformity with its Constitutive Act."

The ICC Prosecution also says it "deeply regrets the request by the African Union (AU) to the United Nations Security Council to defer the proceedings initiated against President Bashir of Sudan and Senior State Official of Kenya."

AU chairman Hailemariam Desalegn said about the continental body's decision: "The African leaders came to a consensus that the ICC process that has been conducted in Africa has a flaw."

He added: "The intention was to avoid any kind of impunity, but now the process has degenerated to some kind of race-hunting rather than the fight against impunity."
On July 1 the ICC will be exactly 11 years old. Established as a permanent tribunal for war crimes the tribunal has so far indicted about 28 individuals, and they are all Africans.

The court has so far secured only one conviction — that of DRC's Thomas Lubanga, who has since appealed against both conviction and sentence.
It is either Africans are still so primitive that they are the only race still committed to carrying out the most egregious of war crimes or the international justice system has just become a complete farce.

Many commentators have concluded that the fact that all the indictees of the ICC are Africans is a clear sign that there are political motivations behind the focus on Africa. It is clearly a case of the ICC versus Africa — with hardly any complementarity to notice.

David Hoile has written significantly on the ICC, and he just published a book titled "The International Criminal Court — Europe's Guantanamo Bay."
He raises very important points about the ICC, some of which will be pursued in this essay.

The ICC was welcomed by many as the panacea to gross human rights violations, but without any doubt the court has run into phenomenal controversy; and that not without cause.

To Africa the ICC has clearly become an unsavoury manifestation of the blindly embraced globalisation phenomenon. Precisely this is because the tribunal's prosecution is unquestionably exclusive — almost permanently targeted at Africa.

Western countries made the point very clear that the ICC was never from its inception a court designed to prosecute Western citizens. Australia only signed the Rome Statute after appending a declaration protecting its own citizens.

Part of the declaration reads: "For this purpose, the procedure under Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the Australian Attorney-General issues a certificate allowing surrender."

It is quite curious that on January 2 2009, this writer was notified by Australia's immigration department that his right of stay would be cancelled ostensibly on totally unfounded allegations of having taken part in "war crimes" and "crimes against humanity" as an active supporter of "Mugabe's repressive regime".

The notification came along with a voluminous copy of the 1998 Rome Statute; categorically stating that should the intention of the immigration minister to cancel the right of stay succeed this writer would be deported to Zimbabwe via The Hague. There was no mention whatsoever of the office of the Attorney-General, or any certificate of surrender.

Of course the slanderous charges collapsed hopelessly at the slightest of legal challenges — not least because the political motivation behind the minister's move was unquestionably and blatantly apparent. Australia had deported adult university students deemed too close to Zanu-PF in 2007, and the same activists behind this childish campaign were trying their luck by misleading the immigration minister.

In the formative days of the ICC British Foreign Secretary Robin Cook remarked: "If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States."

Quite true.
The court essentially covers four crimes; namely genocide, crimes against humanity, war crimes and the crime of aggression. There are no agreed definitions on genocide and the crime of aggression.

Professor Mahmood Mamdani asserts that just as colonial expansionism was based on Western countries claiming to be "protecting vulnerable groups," the ICC is rooted on the philosophy that some superior race from Europe has a big brother obligation to protect vulnerable weaker peoples across the world.

The custodians of the big brother mentality characteristic of Westerners are the NGOs hailing from Western countries. The 1998 Rome Statute was indisputably an NGO-driven initiative — and that aspect of its genesis has always been its major flaw.

Firstly the bar for its approval to become international law was lowered to only 60 of the 189 countries that were then members of the United Nations. To make matters worse, the states that first signed the statute were so small that the seven smallest of the 60 signatories had no more than 345 000 people put together — a population far smaller than that of a single county in most of the states in the United States.

It did not matter that China, India, Japan and Russia were all absent at the 1998 Rome Summit — a development that means that countries representing 70 percent of the world's population are not party to this statute.

David Hoile says ICC membership represents a mere 27 percent of the world's population. It is quite hard to take the court seriously in this regard, and Africa seems to just realise.

Let us take a look at some of the flaws of the ICC. Firstly the court was never really founded on legal principles, it being a direct child of NGO activism.
When one looks at Article 13 (b) and 16 of the ICC Statute it can be seen that special "prosecutorial" rights are granted so that states can refer or defer an ICC investigation or prosecution to the UN Security Council.

This precisely means that the court's business can be referred to the five permanent members of the Security Council for determination, and three of these five countries are not even party to the ICC Statute itself.

The drafters of the Rome Statute decided to put two clauses authorising political interference in the affairs of a court meant to uphold the supremacy of the law. This is exactly what the African heads of state have just done — and their action must make legal sense to the ICC prosecution, especially given prosecutor Luis Moreno Ocampo's notorious personal political motivations.

A legal provision that authorises political interference in jurisdictional matters cannot be taken seriously by anyone with half a brain.
The other flaw of the ICC is that it is logistically reliant on the United Nations, itself a grossly politicised entity falsely decorated as a family of nations. The US can fund the trials at The Hague through the UN purely to pursue its selfish expansionist aspirations.

The ICC is essentially accountable to itself. There is no known public entity to which this tribunal is accountable apart from the UN Security Council — that undemocratic and archaic monster so notorious for passing resolutions that cause mass murders in weaker nations.

The Clinton administration justified its decision for refusing to ratify the Rome Statute by saying:
"We are also concerned there are insufficient checks and balances on the authority of the ICC prosecutor and judges. The Rome Statute creates a self-initiating prosecutor answerable to no state or institution other than the Court itself. Without such an external check on the prosecutor, there is insufficient protection against politicised prosecutions or other abuses."

President George W. Bush then passed the American Service Protection Act, criminalising legal representation that leads to an American being dragged to The Hague, and authorising the invasion of The Hague to rescue US citizens that might end up there.

As if to prove its own point the US has openly pursued a political vendetta against Sudan's President Al-Bashir through the Darfur Crisis — a conflict it clearly backs in order to destabilise the Sudan.

As if The Hague Invasion Act is not brazen enough, the United States has arm-twisted over 100 countries into signing the so-called Bilateral Immunity Agreements (BIAs) — agreements where countries commit not to hand any American citizens to the ICC under whatever circumstances.

In 2009 the US Secretary of State, Hillary Clinton, explained how her country views the ICC. She said:
"Whether we work toward joining or not, we will end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice."

Of course she was not talking about the Nato war criminals that ravaged Libya in 2011, or the American war criminals that have been killing Iraqis for fun since 2003, or the war criminals killing innocent women and children in Afghanistan. These are atrocities carried out against the lesser people of this world, and they by no means constitute war crimes.

India questioned the role of the UN Security Council in ICC affairs and issued a statement saying: "The power to bind non-state parties to an international treaty is not a power given to the UN Security Council by the UN Charter."

India also questioned the legality of the ICC at international law, saying: "Under the law of Treaties, no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted." Sudan and Libya are not party to the ICC Statute, but the leaders were indicted regardless.

India rightfully protested against the idea that the ICC Statute fails to criminalise the use of nuclear weapons and other weapons of mass destruction as a war crime, and it called for the banning of nuclear weapons through the ICC.

The investigations by Luis Moreno-Ocampo in Sudan and Kenya have been questioned by many analysts, especially his over-reliance on politically motivated reports prepared by NGOs, as well as allegations of bribing and paying witnesses. Some of Ocampo's witnesses from Kenya have confessed to taking bribes and being coached to testify against suspects.

If one takes this alleged unethical conduct by the ICC's chief prosecutor into consideration, the integrity of the ICC becomes quite questionable. It irks more for the African when one looks at the blatant blind eye paid by the ICC to Iraq, Afghanistan and Gaza.

The apparent bias of the ICC prompted Zambian President Michael Sata to say:
"It's time that Africa should handle its own affairs. We should not allow foreigners to be coming to interfere with us. If you find the Kenyan president or Zambian president is at fault with the Kenyan people or Zambian people, let the Kenyan or Zambian people deal with him, not somebody in The Hague. Why can't they (Westerners) try their own relatives?"

It is actually plausible for African states to unanimously pull out of the ICC with no intention of ever coming back. The ICC is a neo-colonialist racist set-up with undisguised bias.

Africa we are one and together we will overcome. It is homeland or death!!

Reason Wafawarova is a political writer based in Sydney, Australia.

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