Witness for the International Criminal Court

OCTOBER 10, 2013 11:21PM

African Union

On October 11-12, 2013, the African Union (AU) will gather in Addis Ababa, Ethiopia to formally withdraw from the Rome Statute in supremely dramatic form. The world for the first time will witness a choreographed denunciation (announcement of termination) of an international treaty by an entire continent. This act of collective abrogation will be the greatest affront to the rule of international law since the end of World War II.

I write these words not to defend the Rome Statute (which created and authorized the International Criminal Court (ICC)  to investigate and prosecute crimes against humanity, war crimes and genocide) or fend off attacks on the integrity and professionalism of the ICC and the Office of the Prosecutor [OTP] (a branch of the ICC that investigates, and prosecutes such crimes).  I have attempted to do just that over the past two weeks. As a defense lawyer, I know all too well that there is no possible defense against ghostly lies and malicious falsehoods. I know there is no antidote to the poisonous accusation of racism leveled against those who seek to expose the truth and challenge those who abuse their powers. There is no defense when unfounded allegations of racism are used as gaudy wrappers for crimes against humanity, war crimes and genocide.

I take a stand today as a witness for the ICC not because it is infallible or an unimpeachable institution but because it is a vital  handiwork of imperfect and fallible human beings that must be nurtured, improved and cherished. The flaws of the ICC reflect the flaws of its human makers; both the ICC and its makers can be vastly improved. There is no justice system in the world that is perfect, but all justice systems in the world can be perfected. Perfection is an aspiration not a goal in itself; and the ICC and OTP can use all the help they can get to improve and perfect themselves.

I write these words in the eleventh hour of the scheduled summit of the AU to abandon the Rome Statute en masse. Some say the die is cast and the AU has crossed the River Rubicon, the point of no return. If indeed they have, they would have crossed the point of no return from the rule of law to the rule of men. Others say nothing can be said or done to change that foreordained mad dash of African countries from the Rome Statute. None of that will stop me from testifying on behalf of the ICC, not as a perfect institution but as one that has flaws that can be corrected with the support and backing of the community of nations. So here is my testimony before the AU even though I understand they could not care less about what I have to say.

Call off the showdown at high noon on October 11-12,  2013.

Call of the threatened showdown with the ICC on October 11. It puts the AU in a very bad light.  It makes the AU look like a gang of outlaws plotting against the town’s sheriff and judge. It gives the impression that AU leaders are not really preparing a showdown —  a fight that finally settles their dispute with the ICC and OTP in a fair fight — but devising a cowardly ambush in the hallowed halls of the AU where the ICC and OTP do not have a chance to draw and defend themselves. The special summit makes the AU look like a gang of outlaws who are plotting a comeback from their hideouts while an ICC/OTP posse is hot on their trail.  African leaders should call off the showdown and really think about they are doing after the sun goes down.

Fight (not flight from) the power in the courtroom.  

The threatened mass withdrawal from the Rome Statute is proof that the AU would rather put itself to flight than stand up and fight the good fight. With all the talk about “race hunting”, the October 11-12  summit creates the impression that African leaders are fleeing a stalking predator and gathering like panicked prey seeking safety in numbers. There was a time when colonial troops hunted down African resistance fighters. Africa has its honored place in the world today; and African leaders must purge the idea of being prey from their consciousness. The AU should project an image of confident African truth fighters, not cowering African prey fleeing from the “Great White Race Hunter”. The AU has to roll its sleeves and roll with the punches, stand up for its rights and fight the power in the courtroom. Who’s afraid of the ICC/OTP?

Show the world African leaders can handle the truth, not run away from it.

African leaders must show their mettle. It has been said African leaders can’t handle the truth. They say when confronted with evidence of criminal wrongdoing, African leaders duck and take cover. They barricade themselves behind bogus arguments of  sovereignty and accusations of interference in the internal affairs of their countries. They create distractions to dodge  the truth and invent a convenient “straw white court” bent on “race hunting” them like game on the African savannah.

The world needs to see self-confident African leaders who come out, stand tall and confront serious accusations leveled against them. African leaders must stand tall and be seen welcoming, embracing and defending  the truth.  Above all, it is high time for African leaders to stand up and prove to the world that they are not afraid of the truth. When the truth hits the fan, we want to see African leaders who don’t run and hide under the AU’s skirt. African leaders must not be seen as a bunch of crooks who are constantly engaged in a plot to subvert and pervert the truth. African leaders must show the world they have the guts to stand up and face the music inside a courtroom, any courtroom, and clear their names against vile accusations. Running from the ICC dock to the AU skirt faintly hints to consciousness of guilt. African leaders must show the world that they can handle the truth, not run away from it.

African leaders should “man up!”  

African leaders should make good on their word. Nearly two-thirds of them signed the Rome Statute and agreed to uphold it in the past ten years. African leaders had no problems cooperating and helping the ICC and OTP track down rebel and militia leaders accused of crimes.  Now that members in their leadership rank are fingered and snagged, they want to backslide. It is time for “macho men” African leaders to man up and take responsibility for their actions and omissions. They must acknowledge that there maybe, just maybe, some bad apples in their ranks. The rotten apples who are accused of the most serious crimes known to the human race must not be sheltered behind the fortified walls of the AU. African leaders must man up and ensure accountability for the wrongdoing of their brethren.   

African leaders must stand their ground and fight in the ICC.

African leaders accused of crimes under the Rome Statute have every right to defend themselves using the vast arsenal of legal tools readily available to them. Certain African leaders have complained that heads of state in their ranks (not rebel, militia leaders who have been charged by the ICC) have been denied pretrial due process and a fair trial in court. They have accused the OTP of engaging in prosecutorial misconduct by obtaining and using “false, manufactured and corruptly obtained evidence” and “coaching witnesses” to give perjured testimony against particular defendants. They have accused the ICC and OTP of “abusing” and exercising “unchecked powers” and for being “accountable to no one”.

If these accusations against the ICC and OTP are true, African leaders have the moral, legal and political obligation to challenge and expose them. They can use the procedural avenues provided to states by the ICC to bring their evidence, concerns and challenges to the Court itself. They can present their complaints to the Assembly of States Parties, the ICC’s management oversight and legislative body. They also have the right to bring their evidence before the U.N. Security Council. Above all, they have the right and duty to bring their evidence of abuse of power and misconduct before the court of world opinion. African leaders must stand their ground and fight in the ICC.

Don’t throw out the baby with the bathwater, and don’t cut your nose in spite of your face.

The AU should be careful “not to throw out the baby with the bathwater” or “cut their noses in spite of their faces”. The AU maybe be unhappy or even angry at the ICC and the OTP because of the indictment of sitting heads of states or because of alleged failures to do effective investigations before bringing charges. No doubt there may be legitimate criticisms of the ICC and OTP.

But the AU should keep things in perspective and not “throw stones” so casually. Truth be told, there are many who throw stones at the AU itself. The AU has been criticized for being a “dictators’ club”. A well-known and highly regarded African economist once called the AU “that useless continental organization” which cannot “even define ‘democracy.’”. In a moment of frustration and disgust upon learning that the new African Union building in Addis Ababa was a “donation” from the Chinese Government, I succumbed to the use of colorful language calling the AU, “African Beggars Union”. Does that mean AU’s critics would like to see the AU dissolve and vanish into oblivion? Of course not! We want to see a stronger, more efficient, more energetic, more self-confident and self-reliant continental organization.  For all its imperfections, we support unreservedly the basic mission and goals of the AU as stated in its Constitutive Act. We may not praise the AU under its present leadership but we would not urge its burial because it has flaws. The AU should have the same attitude towards its sister international organization, the ICC. Sure, criticize the ICC, if need be even unfairly, but at the end of the day, the AU should work like the dickens to make the ICC better, stronger and more just and fair. 

Don’t pick your marbles and go home because the ICC does not want to play by your rules.

The recent secret letter by Kenya’s U.N. Ambassador to the President of the Security Council for the Month of May 2013 is not only sad but also deeply embarrassing. It reads like an extortion note. The very last paragraph of the letter in boldfaced text boldly demands, “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case in the Hague without much further ado.” Of course, if there is no immediate termination, the alternative is use of the “nuclear option”, mobilize African countries to withdraw from the Rome Statute en masse. The fact of the matter is that the “extortion” scheme has been known for a long time. Beginning at least in 2011, Kenya has been laying the groundwork “for a motion to be tabled at the African Union Summit in Ethiopia that could trigger withdrawal of African states from the Rome Statute that founded the International Criminal Court.” The details of that strategy were revealed in January 2011 in the Standard, one of the largest circulation papers in Kenya, in an investigative piece titled “Kenya’s secret plot against ICC

For the AU to now threaten mass withdrawal from the Rome Statute as an act of moral indignation and outrage or a reaction to offensive racist acts by the ICC/OTP is neither persuasive nor convincing. The AU had been planning all along, with the aid of Kenyan officials, to scuttle the Rome Statute unless the ICC was willing to give Kenyatta and Ruto a get out of jail free card and exempt all sitting African leaders from investigations and prosecutions. The problem is that when the ICC charged Kenyatta and Ruto, they were just government ministers. The ICC is required by the terms of the Rome Statute (Art. 27) not to make exemptions because the suspect is a “head of state”. It is conduct unbecoming for AU leaders to threaten the ICC that they will go home with their marbles if the ICC refuses to play by their rules. Of course, rules are made by men and women and can be changed. But rules cannot be retroactively changed to adopt a double standard of justice – one for sitting heads of state, another for everybody else.

The AU should use the Rome Statute as a transitional bridge until it can establish an institution equal to or much better than the ICC.

African leaders should not get angry; they should get even. If they truly believe the ICC/OTP are racist institutions, they should stay in the Rome Statute until they can establish in Africa the equivalent of the ICC or an institution much better than the ICC. The AU can establish an African Criminal Court (ACC) and show the world that it can take care of its own criminals against humanity, war criminals and perpetrators of genocide. Establishing an ACC should not be an extraordinarily difficult task. The African Charter on Human and Peoples’ Rights (Banjul Charter) provides the legal principles for a robust system of human rights protections and guarantees of basic freedoms to all Africans. The African Commission on Human and Peoples’ Rights could be molded, if need be, to serve as an ACC. Alternatively, the Constitutive Act of the African Union under Articles 5 (d) and 18 (2), with appropriate “protocols”, could provide the structural foundation for the establishment of an ACC. There is a large body of African lawyers and jurists in Africa and elsewhere who could be recruited (and many who would serve free of charge) to staff the ACC.

The AU can establish an ACC in a heartbeat; the only thing lacking is political will and a genuine commitment to the rule of law. How beautiful the sound and sight of an “African Criminal Court”!

African leaders’ accusations that the ICC and OTP are racist institutions manipulated by “race hunters” and “dark forces” and other baseless charges perpetuate the stereotype of Africa as a continent of helpless victims.

When Sudan’s Omar al-Bashir was indicted in March 2009, Sudan’s Information Ministry issued a statement declaring: “There will be no recognition of or dealing with the white man’s court.” In May of this year, Hailemariam Desalegn in Ethiopia claimed the ICC is “race hunting in Africa.” In August, Thabo Mbeki of South Africa called on “African intellectuals, to demand with one voice that the West’s contempt for the African people and African thought must end!”

If there is real racism in the ICC/OTP, the proper response of African leaders should not be to huddle together and circle the wagons at the AU and threaten mass withdrawal from the Rome Statute. The proper response is to stand up and fight to make the ICC/OTP fair, humane and just. The proper response is to use the collective political will of African peoples and leaders and enlist the intellectual firepower of Africans the world over to make the ICC an institution that is owned and serves the interests of not only Africans, but all people who belong to the “black”, “white”, “brown” and “yellow” “races”. The truth is that standing before the scales of Lady Justice there is only one race that matters, The Human Race.

African leaders should be careful when they accuse the ICC and OTP of racism. The ICC judges and members of the OTP are at a distinct disadvantage in defending themselves against accusations of racism and misconduct because of strict ethical codes and professional rules. Precisely because the ICC/OTP are limited in defending themselves, African leaders must be fair just as they demand fairness for themselves.

Prosecutor Luis Moreno Ocampo, the first ICC prosecutor, has been accused of racism. The fact of the matter is that Mr. Ocampo was appointed because of his impeccable credentials as a prosecutor in his native Argentina. Ocampo was a prosecutor in the “Trial of the Juntas” in Argentina which brought to justice senior military commanders for mass killings that occurred  between 1984  and 1992. Ocampo played a key role in the prosecution of the biggest public corruption cases involving judges, government minsters and heads of public companies in Argentina.

The current prosecutor, Fatou B. Bensouda, is an experienced Gambian lawyer who served as Deputy Prosecutor in charge of the Prosecutions Division since 2004. She is one of the handful of African women to have achieved international recognition for her expertise in international law. The ICC judges handling some of the cases of the Kenyan defendants included Christine Van Den Wyngaert of Belgium, Kuniko Ozaki of Japan, and Chile Eboe-Osuji of Nigeria. There is not a scintilla of evidence that these judges, or any other ICC judges, are racist or have any racial bias. In fact, Van Den Wyngaert resigned in April and was replaced by Robert Fremr of  the Czech Republic, after expressing “serious questions as to whether the prosecution conducted a full and thorough investigation”. The allegations of a racist ICC/OTP simply do not hold water. Whining about a “white court” “race hunting” in Africa is not only undignified and unbecoming of heads of state but also a self-demeaning act that shames all  Africans. African leaders should strive to make the ICC the international tribunal for the human race.

African leaders should wake up and smell the coffee. The ICC and the AU are on the same team – Team Justice!

There is not an ICC for people of the black, white, brown or yellow races. There is an ICC for the human race. African leaders should wake up and embrace that truth. The fact that 122 countries — 34 African, 18 Asia-Pacific, 18 Eastern European, 27 Latin American and Caribbean and 25 Western European and other States–  signed the Rome Statute is irrefutable and incontrovertible proof that the ICC is a court for the human race. The fact that the UN Security Council has never doubted the legality of the Rome Statute nor tolerated a presumptuous  encroachment on its powers and breach of the supremacy of the U.N. Charter is further proof that the ICC stands as an institution that serves the interests of justice for signatory states and as a powerful symbol of accountability to those who have refused to become part of it.

The fact of the matter is that the interests of the ICC and the AU are one and the same. One of the core principles of the Constitutive Act of the African Union is to “promote and protect human and peoples’  rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.” Among the essential “functions” of the African Commission on Human and Peoples’ Rights is to “co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.” The ICC was established as “complementary to national criminal jurisdictions” (not in competition) with a focus on only four categories of crimes: genocide, crimes against humanity, war crimes and crimes of aggression”.

It is worth noting that the ICC and the AU were on “Team Justice” until the OTP and ICC turned their attention to sitting African heads of state beginning with Bashir of Sudan. When former Liberian president Charles Taylor stood trial before the ICC for nearly 4 years, no African leader shed a tear. When former Ivorian president Laurent Gbagbo was flown to the Hague, no African leader called to have the plane transporting him intercepted. When the notorious Joseph Kony and senior leaders of the “Lord’s Resistance Army” in Uganda were indicted, African leaders applauded the OTP and ICC.  No African leader objected when Thomas Lubanga Dyilo was convicted by the ICC or came to the rescue of Bosco Ntaganda, the notorious militia leader in the DR Congo. But when Kenya’s president Uhuru Kenyatta and his vice president William Ruto are held to account before the ICC all hell broke loose. The world is told the African skies will fall and the River Nile will dry up and shrivel unless the ICC on its own or the U.N. Security Council by intervention “immediately terminates” the proceedings against Kenyatta and Ruto and lets them go. Why does the AU fight tooth and nail  to create a double standard of justice in Africa, one for the leaders and another for everybody else?

People who throw in glass houses should not throw stones.

When African leaders today wag an accusatory finger at the ICC and call it a “white man’s court”, they should come forward with clean hands or at least be mindful that three fingers are pointing at them. Tomorrow, their political opponents, rivals and adversaries will flip and use the same arguments they are using today to discredit the ICC/OTP. African leaders tell their domestic adversaries to work within the system and bring about positive changes. But they are not willing to get involved in the ICC and change it from within to make it non-discriminatory. Just as they demand of their opponents to respect the domestic constitutions, laws and courts, African leaders must show the same respect to the ICC and the Rome Statute.

African leaders should carefully think about the logic of their accusations against the ICC/OTP. It is not unforeseeable that their adversaries will now have precedent to claim they are not bound by the authority or judgment of a “Kikuyu court/constitution”, “Tutsi court/constitution” “Banyankole court/constitution”, “Zulu court/constitution” “Nubian court/constitution”, “Tigrean court/constitution” or whichever elites from whatever ethnic group happen to be in power in Africa. It is best to practice what one preaches.

African leaders need not fear the ICC; the truth shall make them free.

I do not for a moment doubt the innocence of Uhuru Kenyatta, William Ruto and even Omar Bashir of the crimes of which they have been accused. I fully subscribe to the universally accepted principle of civilized societies that a person is presumed to be innocent until the person’s guilt is proven beyond a reasonable doubt.  Just because the OTP indicted Kenyatta, Ruto or any other suspects, it does not mean they are guilty of any crime. Indeed, ICC indictments have been withdrawn, dismissed  or not confirmed in a number of cases  including Cabinet Secretary Francis Muthaura, a co-defendant of Kenyatta and Ruto. The fact is that Kenyatta and Ruto have been accused and have voluntarily appeared before the Court. They must now take the opportunity to vigorously defend themselves and clear their good names and reputations. If they withdraw from the ICC now, there will always be lingering doubts about their innocence. Some will believe they escaped the clutches of justice because of political interference. Other will believe they “extorted” their way out of a legal jam. But history will remember that they had every opportunity to defend themselves and clear their names but chose to pervert the course of  justice and escape accountability. If they fail to confront the charges in the ICC, they would effectively be proclaiming their own guilt and inviting the judgment of history. Future generations of Kenyans will forever remember them as fugitives from international justice and very little else.

Mass withdrawal from the Rome Statute will be a badge of shame not only for the accused but also for all African leaders. Leave a legacy of honor, not shame.

A few days ago former U.N. Secretary General Kofi Anan speaking at the annual Desmond Tutu peace lecture in Cape Town, South Africa said, “We believe any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity. On a continent that has experienced deadly conflict, gross violations of human rights, even genocide, I am surprised to hear critics ask whether the pursuit of justice might obstruct the search for peace. If they [AU] fight the ICC, vote against the ICC, withdraw their cases, it will be a badge of shame for each and every one of them and for their countries.”

Archbishop Desond Tutu pled for global unity in preventing the mass withdrawal of African countries from the Rome Statute: “In my years of work, life and travel, the fight for justice has been a long and arduous one. I have seen the very worst in Darfur and Rwanda, but also the very best with the reconciliation in South Africa. During this journey, I have seen great gains made that protect the weak from the strong and give us all hope. The ICC is one of these beacons of hope.”

I plead with African leaders to look at the big picture, the things the matter most. The fates of two individuals must not be allowed to outweigh the fate of three-quarters of a billion Africans. The present predicament of two individuals should not cripple the yearning for justice of millions of Africans. The pride and dignity of Africa and Africans should not be bartered to rescue a few individuals accused of heinous and shameful crimes. Leave a legacy of honor, dignity and pride for  future generations of Africans.

Human rights matters in Africa.

By withdrawing from the Rome Statute, the AU is saying that human rights in Africa do not matter. Human rights violations in Africa today are more widespread than malaria infections. Today government troops, police and security officials, rebels and militiamen all over conflict-ridden Africa torture, jail, rape and murder innocent civilians and pillage and plunder their villages and homes. There are 1.4 million Somalis who have become refugees and are unable to return home fearing abuse and reprisals. A few days ago, the United Nations reported “the number of refugees fleeing the war in the Democratic Republic of Congo has swelled by more than 350,000 in just the past few months as fighting escalated.” Journalists, dissidents, opposition and civil society leaders languish in African prisons despite protests by international human rights groups. Human rights matters in Africa.

Don’t fight the ICC; fight to make the ICC better and stronger.

The ICC is a court of last resort. The ICC was established as “complementary to national criminal jurisdictions”; it does not seek to compete, undermine or thwart the criminal process in any country. The ICC will not investigate or prosecute a case in Africa unless African governments are unable or unwilling to investigate and prosecute suspects for the specific crimes of genocide, war crimes, crimes against humanity and aggression. Simply put, the  ICC is that last outpost of justice on the frontiers of international lawlessness. Fight for the ICC not against it.

Show Africa is a continent of hope and not a dark planet of despair.

Nelson Mandela, the first Son of Africa, said, “I dream of an Africa which is in peace with itself.” In his inauguration speech he told his fellow South Africans to come together and build one nation. “We enter into a covenant that we shall build a society in which all South Africans, both black and white, will be able to walk tall, without and fear in their hearts, assured of their inalienable right to human dignity – a rainbow nation at peace with itself and the world.” One Africa should be the dream of all African leaders.

But there can be neither peace nor unity in Africa if there is no justice. It was H.I.M. Haile Selassie, the first Chairman of the Organization of African Unity (predecessor of African Union) who said in 1963,  that “until the philosophy which holds one race superior and another inferior is finally and permanently discredited and abandoned; until there are no longer first-class and second class citizens of any nation; until the color of a man’s skin is of no more significance than the color of his eyes; until the basic human rights are equally guaranteed to all without regard to race; until bigotry and prejudice and malicious and inhuman self-interest have been replaced by understanding and tolerance and good-will, the African continent will not know peace.” The ICC is one beacon of hope that Africa shall come to know peace because those who threaten its peace by committing genocide, war crimes, crimes against humanity and aggression will know for certain they will be held accountable before the bar of justice.

Do not make October 11-12, 2013 dates which will live in infamy.

Do not make Africa the burial place of the ICC; make the African savannahs, deserts and jungles the re-birthplace of the ICC. Make Africa the land where the ICC was transformed from an alleged sword of racism and injustice to a shield of justice and fairness. Beat the drums and sound the trumpets that on October 11-12,  2013, the ICC became a stronger, fairer and much better institution because African countries came together, deliberated together and reinvigorated and re-inspired the ICC to greater heights.

African leaders: Do the right thing or “God and history will remember your judgment.”

I plead with the AU to embrace the Rome Statute, not scrap it. In the volatile politics of Africa, no one knows who will be the hunter and the hunted tomorrow, next month or next year. The hunters in power today will be the hunted out of power tomorrow. In the absence of the ICC, who will protect the hunters of today when they are hunted tomorrow?

In the end, I can only hope the AU will learn from history. H.I.M. Haile Selassie appealed to the League of Nations after Ethiopia was invaded by fascist Italy in 1935 and the League was unable to guarantee collective security to its weakest members. I paraphrase his warning to the League as a history lesson to the AU: “Apart from the Kingdom of the Lord there is not on this earth any nation that is superior to any other. Should it happen that strong leaders find they may with impunity destroy a weak people upon whom crimes against humanity, war crimes and genocide are committed, then the hour strikes for that weak people to appeal to the International Criminal Court to give its judgment in fairness and justice. If you scrap the Rome Statute, God and history will remember your judgment!”

So, here I stand on October 11, 2013 as a witness for the International Criminal Court!

The time to defend the ICC is NOW!

Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.