Understanding the International Criminal Court

By John Harrington Ndeta

The International Criminal Court or ICC, has been misunderstood by Kenyans and Africa as a whole, labeling it a Western court picking on Africa and Africans.

On the contrary, the ICC is a global court with strong support and constitution from the African continent. As a matter of fact, it would not be the court it is today without the valuable input, involvement, and support of the majority of African states.

The court seeks justice for all victims, particularly on the African continent, and thus needs the ongoing support of African governments, civil societies, and the public in order to succeed.

African countries have been actively involved in the establishment of the ICC and the Rome Statute since negotiations for the court began in earnest more than 20 years ago. Delegations from African states, including Lesotho, Malawi, Swaziland, Tanzania and South Africa participated in discussions as early as 1993 when the International Law Commission presented a draft statute to the United Nations General Assembly for consideration.

As deliberations progressed, 47 out of the total 53 African states were present during the drafting of Rome Statute; the founding treaty of the ICC, at a Rome Conference in July 1998. They also voted unanimously for its adoption.

The composition of ICC panel of judges is five Africans namely: Fatoumata Dembele Diarra (Mali); Akua Kuenyehia (Ghana); Daniel David Ntanda Nsereko (Uganda); Joyce Aluoch (Kenya); and Sanji Mmasenono Monogeng (Botswana). One former judge, Navanethem Pillay (South Africa) is now the United Nations High Commissioner for Human Rights.

In the recent March elections for new judges, 12 out of 19 judicial candidates were Africans nominated by African governments. Several Africans are currently occupying high level positions within the court, including Fatou Bensouda of Gambia and Fatoumata Dembele Diarra of Mali.

The ICC is an integral part of the fight against impunity and blatant defiance of rules and laws of the land as witnessed in Kenya during the disputed presidential elections in 2007, which left thousands of people homeless and hundreds dead.

In the past decade alone, millions of Africans have lost their lives in conflicts and
have been the target of war crimes and political violence. The Rwanda Genocide in 1994 and the Darfur crisis epitomize crimes perpetrated against humanity by ruthless politicians. Attempts by the ICC to punish such politicians is standing in solidarity with the African victims as well as deterring future occurrence of such atrocities.

ICC’s recent arrest warrant against President Omar Al-Bashir of Sudan and threat to prosecute politicians who financed the Kenyan post-election violence does not make it anti-Africa. It is simply fighting for Africans against bad leaders bent to misuse other Africans.

In 2005, the African Commission on Human and Peoples’ Rights issued a resolution
on ending impunity in Africa and on the domestication and implementation of the
Rome Statute of the ICC.

It called on civil society organizations in Africa to work collaboratively to develop partnerships to further respect the rule of law internationally and to strengthen the Rome Statute.

Civil societies
More than 800 African civil society organizations are members of the Coalition for the International Criminal Court, representing approximately one-third of the global membership of the coalition.

Twenty one African countries have national coalitions for the ICC, which actively work for the implementation of Rome Statute provisions into national legislation and the
strengthening of the court’s activities in Africa.

Civil society organizations all over Africa are engaged in the fight against impunity
and for the right of victims to truth and justice for atrocities committed against them.
They see the ICC as an important complementary tool in their struggle to establish justice as the norm, rather than the exception.

Cases in progress
The ICC is currently investigating four cases, three of which were referred to the court by African governments themselves between 2003 and 2005.

Democratic Republic of Congo, Uganda and Central African Republic referred situations occurring within their land to the office of the prosecutor of the ICC.

Since most, if not all African states are parties to the Rome Statute; they should recognize and appreciate lack of capacity of their national courts to address grave acts occurring within their territory, and subsequently request the ICC to open investigations into the alleged crimes.

The fourth case, the situation in Darfur, Sudan, was referred to the court by the United Nation Security Council in 2005. There were no dissenting votes among council members on this resolution. Both Benin and Tanzania voted to refer the situation while Algeria abstained from voting. The ICC is also currently analyzing situations in Colombia, Afghanistan and Georgia.  

In years to come, ICC is expected to open investigations in other parts of the globe, and Kenya remains one of its targets as it has perpetrated crimes against humanity with impunity.

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