ICC Prosecutor Acclaims African, Caribbean and Pacific States’ Support for The Contentious Court

Photo (left to right): ACP Secretary General Dr Patrick I Gomes; ICC Prosecutor Dr Fatou Bensouda; and Ambassador Ammo Aziza Baroud of Chad, Chair of the ACP Committee of Ambassadors. Credit: ACP Press.

The International Criminal Court (ICC) Prosecutor Dr Fatou Bensouda has expressed her profound gratitude for the ACP Group‘s contributions to the work of the ICC that has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity and war crimes. 51 out of 79 ACP States have ratified the ICC Rome Statute. Altogether 123 states are party to the Rome Statute and therefore members of the ICC.

Dr Bensouda was addressing the Committee of Ambassadors of the African, Caribbean and Pacific Group of States on January 24. Chaired by Ambassador Ammo Aziza Baroud of Chad, the session provided an opportunity for the Prosecutor to present the activities of the ICC Prosecutor’s Office and to highlight the important historical contributions of the ACP regions in the creation of the ICC, which interacts with communities affected by crime.

The ICC is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. It is intended to complement existing national judicial systems and it may therefore exercise its jurisdiction only when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer situations to the Court.

The ICC began functioning on July 1, 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC’s foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC.

The importance of the session with the ACP ambassadors in Brussels was underscored by the fact that the ICC has been accused of bias and as being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states. This sentiment has been expressed particularly by African leaders due to an alleged disproportionate focus of the Court on Africa, while it claims to have a global mandate; until January 2016, all nine situations which the ICC had been investigating were in African countries.

The prosecution of Kenyan Deputy President William Ruto and President Uhuru Kenyatta (both charged before coming into office) led to the Kenyan parliament passing a motion calling for Kenya’s withdrawal from the ICC, and the country called on the other 33 African states party to the ICC to withdraw their support, an issue which was discussed at a special African Union (AU) summit in October 2013.

Though the ICC has denied the charge of disproportionately targeting African leaders, and claims to stand up for victims wherever they may be, Kenya was not alone in criticising the ICC.

Sudanese President Omar al-Bashir visited Kenya, South Africa, China, Nigeria, Saudi Arabia, United Arab Emirates, Egypt, Ethiopia, Qatar and several other countries despite an outstanding ICC warrant for his arrest but was not arrested; he said that the charges against him are “exaggerated” and that the ICC was a part of a “Western plot” against him.

Ivory Coast’s government opted not to transfer former first lady Simone Gbagbo to the court but to instead try her at home. Rwanda’s ambassador to the African Union, Joseph Nsengimana, argued: “It is not only the case of Kenya. We have seen international justice become more and more a political matter.”

Ugandan President Yoweri Museveni accused the ICC of “mishandling complex African issues.” Ethiopian Prime Minister Hailemariam Desalegn, at the time AU chairman, told the UN General Assembly at the General debate of the 68th session of the United Nations General Assembly: “The manner in which the ICC has been operating has left a very bad impression in Africa. It is totally unacceptable.”

South African President Jacob Zuma said the perceptions of the ICC as “unreasonable” led to the calling of the special AU summit on October 13, 2015. Botswana is a notable supporter of the ICC in Africa. At the summit, the AU did not endorse the proposal for a mass withdrawal from the ICC due to lack of support for the idea. However, the summit did conclude that serving heads of state should not be put on trial and that the Kenyan cases should be deferred.

Ethiopian Foreign Minister Tedros Adhanom said: “We have rejected the double standard that the ICC is applying in dispensing international justice.” Despite these calls, the ICC went ahead with requiring William Ruto to attend his trial. The UN Security Council was then asked to consider deferring the trials of Kenyatta and Ruto for a year, but this was rejected. In November, the ICC’s Assembly of State Parties responded to Kenya’s calls for an exemption for sitting heads of state by agreeing to consider amendments to the Rome Statute to address the concerns.

On October 7, 2016, Burundi announced that it would leave the ICC, after the court began investigating political violence in that nation. In the subsequent two weeks, South Africa and Gambia also announced their intention to leave the court, with Kenya and Namibia reportedly also considering departure. All three nations cited the fact that all 39 people indicted by the court over its history have been African and that the court has made no effort to investigate war crimes tied to the 2003 invasion of Iraq.

However, following Gambia’s presidential election later that year, which ended the long rule of Yahya Jammeh, Gambia rescinded its withdrawal notification. The High Court of South Africa ruled on February 2, 2017 that the South African government’s notice to withdraw was unconstitutional and invalid. On March 7, 2017 the South African government formally revoked its intention to withdraw; however, the ruling African National Congress revealed on July 5, 2017 that its intention to withdraw stands.

“In 1989, Trinidad and Tobago, on behalf of the Caribbean Community, called upon the 44th Session of the UN General Assembly to reconsider the establishment of an international criminal court; and in February 1999, Senegal became the first state party to ratify the Rome Statute,” Dr Bensouda recalled.

“Exchanges such as the one we are having today assist to raise awareness and increase understanding of international humanitarian law and international justice, including the ICC and its functioning. It is critically important to address persistent misperceptions, and facilitate dialogue thereon,” she added.

In addition to clarifying the lack of understanding on the role and jurisdictions of the International Criminal Court, the session also allowed the Prosecutor to discuss openly and exchange views with ACP representatives on a wide range of topics.

Eminent among these were: The principle of complementarity, meaning that states retain their primacy of jurisdiction and bear first responsibility to investigate and prosecute atrocity crimes; and the principle of cooperation, requiring all states that have joined the Statute to comply with the Court’s requests for assistance and support in the context of its investigations.

The discussions further focused on the need for States to reinforce the capacity of their criminal justice systems to address serious crimes at the national level.

Several representatives expressed their full support for the Court and the work of the Office of the Prosecutor. They commended Prosecutor Bensouda’s unyielding commitment to the cause of international criminal justice and to continuing to fulfill her mandate, with full independence and impartiality, wherever the Court has jurisdiction.

Dr Bensouda was elected the ICC Prosecutor in 2011 by consensus by the Assembly of States Parties. She was nominated and supported as the sole African candidate for election to the post by the African Union. She is the first woman to assume the position.

Previously, she served as the Court’s first Deputy Prosecutor (2004 to May 2012), Senior Legal Advisor and Head of the Legal Advisory Unit of the UN International Criminal Tribunal for Rwanda (2002 to 2004), and the Attorney General and Minister of Justice of The Gambia.

She is the recipient of numerous awards and recognitions. Dr Bensouda has been listed by Time magazine as one of the 100 most influential people in the world (2012 and 2017), by the New African magazine as one of the “Most Influential Africans”; by Foreign Policy as one of the “Leading Global Thinkers” (2013) and by Jeune Afrique as one of “50 African women who, by their actions & initiatives in their respective roles, advance the African continent (2014 & 2015).” [26 January 2019]

Photo (left to right): ACP Secretary General Dr Patrick I Gomes; ICC Prosecutor Dr Fatou Bensouda; and Ambassador Ammo Aziza Baroud of Chad, Chair of the ACP Committee of Ambassadors. Credit: ACP Press.

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