To stay or not to stay? That’s the question before African governments regarding continuing to be signatories to the Rome Treaty that established the International Criminal Court. The treaty obligates signatory nations to arrest and hand over for trial anyone indicted by the court, which is based in The Hague, The Netherlands. Now several African governments are beginning to have second thoughts. For long, critics have complained that the court targets only Africans. Now some African countries are going beyond gripes and opting out of the treaty. Last month, the Burundi parliament voted to get the country out. That was followed by South Africa, which notified the ICC of its intent to pull out. Then Gambia .
Now there’s fear of an exodus of African countries from the Rome Treaty. In fact, Uganda has indicated intention to push for African countries to leave as a block. That would cut the 120-member treaty membership nearly in half. Question remains, does the ICC deserve such dismemberment? The primary case against the ICC is that it is exhibiting neo-colonial paternalism towards Africa.
Virtually all of its arrest orders have been of Africans. The ICC’s indictment of Sudanese President Omar al Bashir has stirred the most controversy. The fellow has travelled to a number of African countries that are signatories to the Rome treaty, but when the ICC asks for his arrest and handover, the governments bulked. When Bashir arrived in Nigeria in July 2013 for the World’s AIDS conference in Abuja, he received the full complements of honours .
But then he had to make a hasty departure after the Nigerian Coalition for the ICC filed a lawsuit seeking his arrest. Bashir had a similar experience in South Africa. It is the resulting tension that culminated in South Africa’s decision to withdraw from the ICC. In explaining its decision not to arrest Bashir, the South African government said the ICC’s order infringed on its sovereign right to conduct diplomacy. Regarding Nigeria’s decision, Rueben Abati, the spokesman for the government of President Goodluck Jonathan, cited a 2009 African Union directive that its members disregard ICC arrest warrants. This all leads to the question, did these governments not comprehend the meaning of the treaty when they signed on to it in 1998?
The three most populous countries in the world — China, India, and the United States — along with Russia, the ninth most populous, are among countries that did not sign the treaty. Could it be that they understood its implications better than African countries did? The treaty was signed about 10 years into the global spring of democratisation. Could it be that African leaders were quick to sign on to impress the world of their commitment to human rights? Significantly, the complaint against the ICC is not that it is targeting innocent people or that its trial process is unjust.
It is that African leaders are the only ones targeted. Might that simply reflect some sad realities? How many horrors of the scope of the Darfur carnage, Kenya’s electoral violence, and Congo’s protracted civil war have been perpetrated by military generals or instigated by government officials in Europe and North America since 1998? With the possible exception of the current conflict in Ukraine, I would say none. In fact, the probable culpability of the Africans investigated, indicted or convicted by the ICC has hardly been in question. The case against Bashir is, perhaps, the most self-evident. He might not have instructed the Janjaweed to burn down whole villages and wipe out the ethnic Darfur natives, but he engaged them to fight against Darfur rebels. The ICC’s indictment of Kenyan President Uhuru Kenyatta stirred considerable outrage.
Yet his campaign rhetoric was part of the combustible mix that ignited and took more than 1,000 Kenyans’ lives in 2008. As to the Congolese generals — the rebel commanders in particular — there is little question that they were complicit in the rash of murders and rapes that made casualties there the highest of any war since World War II. So, in choosing to leave the ICC, are African leaders seeking to protect themselves or their people? In fairness to Nigeria, South Africa and other countries that have refused to arrest indicted heads of state, such an arrest would be momentous. After all, these are commanders-in-chief of their countries’ military. Their arrest could precipitate wars.
Refusing their entry would be a less consequential option, but even that risks a rupture in diplomatic relations. Perhaps, a way out of Africa’s ICC dilemma is to push for an amendment to the treaty that would cease requiring the arrest of sitting presidents and prime ministers. What will not do African people any good is for their governments to throw away the ICC baby with the birth water? There are still too many cases of wanton impunity on the continent.