IMANI report on ACILA roundtable discussion on African leaders and the ICC

The African Centre for International Law & Accountability hosted a roundtable discussion (RTD) on 8 March 2017 to discuss the African leaders’ strategy for the collective withdrawal from the ICC and the implications for justice for the victims of international crimes.

The panelists of the RTD comprised of Honourable Andrew Mercer, MP for Sekondi and a member of the committee reviewing Ghana’s draft ICC bill. Mr Mercer was acting as Chair of this RTD. Justice Emile Short was also present at this event. He was the first Commissioner at the Commission of Human Rights and Administrative Justice (CHRAJ) in 1993. He also served as a judge for the UN International Criminal Tribunal for Rwanda. Prof. Henry Kwasi Prempeh, a Legal and Governance Consultant, and Dr. Franklin Oduro, Transitional Justice Expert & Head of Research and Programmes/Deputy Director of CDD-Ghana were also present. Mr. William Nyarko, Executive Director of ACILA, oversaw the proceedings and hosted the event.

Dr Oduro primarily considered the AU’s concern with the ICC. These are that cases brought to the ICC are predominantly African related, and that the ICC is an institution that has repeatedly targeted Africans. He highlighted that rather than make these sensational and unfounded claims of bias towards African nations, the AU should fight for reform for best-practices rather than look for strategies to leave the ICC. Africa as a whole is the largest signatory of the statue – if 54 counties leave, the credibility of the ICC will be affected. African countries should instead be concerned about how to strengthen domestic legal institutions in line with international ones. He also asked a very pertinent question – why should African leaders be afraid of the ICC if they have not committed any crimes? He also noted that Ghana’s position regarding ICC withdrawal is unclear, and Ghana should state their position and develop a strategy.

Mr.William Nyarko discussed the ICC withdrawal from the point of view of civil society organizations (CSOs) and what stance they should take. He outlined the three main powers of domestic jurisdiction under international law: 1) the punishment of crimes against humanity; 2) the punishment of genocide; and, 3) the punishment of war crimes. Impunity occurs when a state has the responsibility to prosecute these crimes, but fails to do so. The ICC works on a complementarity principle – if a state is willing and able to prosecute, the ICC will not intervene. CSOs must hold governments accountable and understand the role of the ICC and focus on providing justice for the victims, and not the perpetrators. This is because the victims need justice. This can only satisfactorily occur if the public understands and is educated on these issues.

The discourse of placing emphasis on the victims was continued by Prof. Kwasi Prempeh. He questioned priorities of the AU by asking who really counts, the victims or their leaders? He also quite rightly observed that the AU has consistently remained indifferent to issues affecting Africans, for example, the drowning of African migrants in the Mediterranean on their way to seek a better life in Europe. Prof. Prempeh also noted that throughout history, African leaders have always been hostile to international norms and laws that restrict their behaviour. For example, the drive towards establishing human rights, which started in the 1960s was resisted by Africans. He maintained the sentiments echoed earlier by Dr. Oduro, and the rest of the panel – that it is superficial to claim that the ICC is biased towards Africa. African arguments are not so much about due process and the structure of the ICC, but rather, shifting the attention to others, almost suggesting that other nations are committing similar atrocities, but why are African nations being placed under the spotlight? The issue at stake here is Africa’s domestic legal systems. If these had been reformed and strengthened, these kinds of reactions would not occur.

Finally, Justice Emile Short started his presentation by questioning the proceedings that occur in AU meetings – are they predominantly led by intellect and logical discussion, or simply led by emotions? Rather than criticise the ICC, African countries should shift their attention to the role of the UN Security Council and the five countries with veto power. In fact, two African ICC cases have been referred by the Security Council. The AU should focus on how the veto powers have not ratified the Rome Statute, suggesting that they want to avoid accountability and responsibility. They should also highlight the politics at play in the Security Council – that no member would refer any case to the ICC involving the other members. In sum, the AU should emphasise the need to reform the Security Council. Justice Short stated that the most paramount interest and consideration of the AU is to create justice for African victims. The AU fails because it concerns itself with immunity for heads of state rather than victims. Instead, African states should support the ICC, because like all institutions, it is not perfect.

The RTD concluded with a reiteration of its main arguments and points: 1) there must be a focus on institutional reform at the UN Security Council, 2) domestic institutional legal systems must also undergo reform, 3) African nations must take advantage of the complementarity principle, and, 4) there must be a constant focus on providing justice for the victims.

Ms Nora Dei-Anang is an IMANI research assistant with the Centres for Political & Economic Affairs and Centre for the Study of Energy & Natural Resources.