15th ASSEMBLY OF STATE PARTIES TO THE ROME STATUTE
OPEN
BUREAU MEETING
RELATIONSHIP BETWEEN THE ICC AND AFRICA
18 November 2016, The Hague
REMARKS BY NJONJO MUE
Mr. President, distinguished delegates, ladies and
gentlemen:
When I received news of South Africa’s intention to withdraw
from the Rome Statute, like all other people who have dedicated their lives to
the fight for human dignity and accountability around the world, I was deeply
saddened.
I also remembered an incident that occurred during the
negotiations that led to majority rule in South Africa, held at Kempton Park,
Johannesburg. The then State President F.W. De Klerk had made some remarks that
greatly offended Nelson Mandela. In fact, I have never seen Mandela so angry in
public. But what was Mandela’s response to De Klerk? He did not storm out of
the hall; he stood and walked majestically to the podium and confronted De
Klerk firmly and honestly. That is the African way: We do not withdraw and walk
away; we stay and we respond.
Mr. President, there have been long-running allegations that
the International Criminal Court targets Africa. These allegations have often
been met by recounting statistical evidence to the contrary, by recalling that
most of the African cases at the ICC were referred to the Court by African
states themselves. But I would like to respond here by giving another
statistic. As of August 2016, there were 16 UN Peacekeeping Missions around the
world. 9 of these are in Africa. This comprises 56% of all missions. We know
that Africa does not make up 56% of the global population, but I have never
heard anyone claiming that the UN is targeting Africa. Could it be that the
like the UN, the ICC is most active where it is most needed?
We all know from recent history that the need for
post-conflict justice is self-evident. Where there is no accountability, where
warlords fighting for power know that they will not be held to account, there
is no motivation to end conflict. And if there is a pause in the fighting, without
justice, the ensuing peace is ever only temporary. This was amply demonstrated
in Sierra Leone where the Lomé Peace Agreement of July 1999 included a blanket
amnesty for combatants. It was just a matter of time before fighting resumed.
When accountability was introduced into the equation through the establishment
of the Special Court for Sierra Leone, sustainable peace was assured and
continues to hold to this day.
Part of the grievance by African states against the ICC
flows from a deeper pathology of governance in Africa where what is regarded as
bad for the leader of a particular country is automatically assumed to be bad
for the entire state. It also flows from a narrow and outdated definition of
sovereignty that dictates that states should be left to mind their own business
no matter how the decide to do so. But sovereignty is not a blank cheque nor
can sovereignty mean that African states – whether governments or warlords –
should be free to brutalise, murder, rape and loot from their own people in
pursuit of power and resources without consequence.
The AU political leadership regularly complains about the
role of the ICC in Africa. But these conversations are held behind closed doors
in Addis Ababa and in other African capitals. Spaces where civil society and
the press, let alone ordinary citizens, have to struggle to gain access. The
tone of the communiqués that are issued after the AU summits make it clear that
the leaders are speaking from their own perspectives. But who speaks for the
victims?
The ICC is our court, created through the demand and with
overwhelming support of African states, governments and civil society alike, to
try to overcome their own legacies of massive human rights violations,
including apartheid, genocide and multiple civil conflicts. It is time to tell
those who complain that the Court is targeting Africa that the true position is
that it is rather African victims who are accessing their Court in pursuit of
justice. This is especially true when we remember that the ICC is a court of last
resort which only intervenes where states are either unwilling or unable to
investigate and prosecute serious crimes according to the principle of
complementarity. There is a simple answer to African states that feel
‘targeted’ by the ICC to address the situation: Prosecute atrocity crimes
occurring in your territories or committed by your nationals and deliver
justice to the victims at home.
But this said, ICC is not a perfect institution. We should
also remember that the Court is a small island of law that exists in a vast sea
of politics. And as with all islands, sometimes the tide rises and the storms
blow and the waves of politics come crashing onto the shores of the law and
this clearly presents some challenges. There are three notable examples this:
First is the role of UN Security Council in referring cases
to the ICC and deferring ongoing cases. 3 of the 5 permanent members of the
Security Council are not members of the Rome Statute and yet they have the
power under the Rome Statute to refer other states, including non-members, to
the ICC as they have done with Sudan and Libya. This is clearly problematic.
The situation is exacerbated by the fact some members of the Security Council
have used their veto power to prevent serious crimes taking place in countries
such as Syria from being investigated by the ICC. This blatant display of
double standards that sacrifices the demand for justice at the altar of
geo-strategic interests of the great powers can only hurt the global fight
against impunity.
Second, there have been differing interpretations of the
role of Head of State immunity in the Rome Statute system. While Article 27 of
the Rome Statute is clear that official capacity as a Head of State or
Government, a member of a Government or parliament, an elected representative
or a government official shall in no case exempt a person from criminal
responsibility, some have argued that this contradicts Article 98 which seems
to recognize head of state immunity under international law.
Third, there is the alleged targeting of Africa and the
perception of bias against African countries that I have already discussed
above and will return to in a moment.
How can these challenges be addressed in a meaningful way
that leads to the strengthening rather than the weakening of the Rome Statute
system and the International Criminal Court?
While the complaint against the role of the UN Security Council
is legitimate, it is usually misplaced.
Failure to refer situations such as Syria while referring those in Sudan
and Libya are not the fault of the ICC. They are a result of imbalance in
global power relations and the maintenance in place of an outdated global peace
and security architecture inherited from the post WW2 arrangement. There is need
to revive and continue the debate on UN Security Council reform in order to
make UN decision-making more reflective of the realities of the 21st
Century. African countries need to direct their firepower at the real source of
the problem; at the UN, not the ICC. We don’t treat a brain tumor by amputating
a leg! The 3 members of the P5 must also continue to be encouraged to join Rome
Statute in order to make the ICC a truly global mechanism for pursuing justice
for victims of serious crimes.
On Head of State immunity, it is a cardinal principle of
international criminal justice since Nuremberg that there cannot be immunity
for persons who commit atrocity crimes. To grant them immunity would defeat the
whole purpose of the system that has been painstakingly put together to ensure
that there is accountability for crimes that shock the conscience of humanity.
However, a conclusive interpretation of the Rome Statute on the issue of
immunity needs to be sought by way of an advisory opinion from the International
Court of Justice. This will clarify the law and place the pursuit of
accountability on a firm footing. I am grateful to my friend Allan Ngari of the
Institute of Security Studies for drawing my attention to this point.
On the perceived focus on Africa by the ICC, the Court needs
to expand its scope beyond Africa and address violations wherever they occur in
countries within its jurisdiction. While recognizing that each situation is
unique, the Court also needs to demonstrate that it treats all countries
equally. In this regard, it has been difficult to explain why a country such as
Colombia has been under preliminary examination for 12 years, while the Court
moves much faster in opening investigations in other situations. I am not
suggesting that the court open investigations elsewhere for the mere purpose of
filling a quota or demonstrating impartiality. I am saying that when one looks
at the conflict map around the world, one clearly sees that it extends to parts
beyond Africa and the Court’s reach needs to mirror that map.
In conclusion, Mr. President, I wish to end where I began,
with the image of Nelson Mandela walking majestically to the podium at Kempton
Park when he could have stormed out of the room. The ICC is not just struggling
under the weight of a legacy of impunity on our continent; it is also
struggling under the weight of history. There are strong sentiments among
African peoples driven by legacies of racism, domination, and exclusion. These
sentiments are real and they cannot, and should not be wished away. Like
Mandela, all Africans in this room have at one point or another in our lives
been insulted, discriminated against or victimized because of the colour of our
skin. But when this has happened, when we have felt unfairly treated, we have
not walked away from the problem, we have confronted it. We have been part of
the solution to the myriad challenges confronting us as members of the human
family and in so doing, we have often shown others the way. All African ICC
member states must do the same. They must work within the Rome Statute
structures to improve an International Criminal Court that is needed more
desperately now than when it was first created.
I thank you.
