ANALYSIS: ICC ‘bias’ handy cover-up for African detractors

The Hague, Netherlands | AFP | 

Complex diverse political agendas are driving African nations to quit the International Criminal Court, with leaders seeking to cloak the move by reigniting age-old anger at the West, analysts say.

Gambia’s announcement that it would be the third country to withdraw from the court is all the more frustrating as it comes at a time when the tribunal is beginning to probe some of the world’s most intractable conflicts, in places such as the Palestinian territories and Afghanistan, experts say.

Set up in 2002, the ICC’s mission is to try the world’s most heinous crimes which national governments are either unable or unwilling to prosecute.

And most of the ICC prosecutions, such as in the Democratic Republic of the Congo, have been requested by the countries themselves.

But Gambian Information Minister Sheriff Bojang charged the ICC had been used “for the persecution of Africans and especially their leaders”.

“Not a single Western war criminal has been indicted,” he said late Tuesday, as his country followed Burundi and continental heavyweight South Africa in announcing it intends to leave the tribunal.

Shielding the powerful 

It is a “very worrying development,” said analyst Mark Kersten, from the University of Toronto.

“The ultimate effect of this will be to protect high-level senior perpetrators of mass atrocities.”

In his online blog, Kersten predicted while there would not be a mass exodus, as many as five to 10 nations could withdraw from the court based in The Hague, including Kenya, Namibia and Uganda.

But he said ironically that showed the tribunal was more relevant than ever.

“Why is the ICC in the African states as it is? If you look at all of them, I think what you’ll see is that the ICC has justified investigation in all those situations,” he told AFP.

The three African nations involved so far have different reasons for trying to avoid any international spotlight on their domestic issues.

Burundi, where ICC chief prosecutor Fatou Bensouda opened an initial probe in April, has been mired in 18 months of political violence since President Pierre Nkurunziza announced his successful bid for a third term.

Former ICC chief prosecutor Luis Moreno-Ocampo highlighted repeated fears from the United Nations and the African Union of “a possible genocide” in Burundi.

“Who will defend the victims?” he asked.

“Escaping the ICC is a way to come (with) free hands to commit genocide,” Moreno-Ocampo told AFP, adding all “dictators are against” the court.

Domino effect? 

It seems Bujumbura’s decision sparked a kind of “withdrawal race,” said Kersten, while insisting Pretoria’s decision “was not made in solidarity with Burundi nor was it to protect or promote Nkurunziza.”

And Gambia, Bensouda’s home country where President Yahya Jammeh is seeking a fifth term having ruled with an iron-fist for decades, may have tried a preemptive strike amid fears of an opposition crackdown.

Experts warned of the “polarised debate” which has become symptomatic of everything that has gone wrong with the court.

Of the 124 nations which have ratified the Rome Statute underpinning the court, 34 are currently African. But with the United States, Russia and China all absent from the ICC’s signatories, real discussion is needed on boosting the tribunal’s legitimacy.

“There’s a strong African lobby pro-ICC, in the sense that they want to improve the ICC. So they are critical…,” said Marieke de Hoon, assistant professor in public international law at the Vrije Universiteit Amsterdam.

“It’s those voices that we need to assist by giving them a voice, rather than denying it,” she said, highlighting Mali, Niger, Senegal and Gabon, which recently asked the ICC to open an investigation into election unrest.

In part the ICC is hampered by its own rules. It can only investigate alleged crimes in states which have signed up to the Rome Statute, or if it is given a UN mandate.

That has hamstrung its ability to bring to justice those involved in the wars in Iraq and Syria.

“It’s crucial to understand the political playing field the ICC is trying to operate in,” said De Hoon. “It has limited resources, limited jurisdiction.”

She suggested the withdrawals could be part of an orchestrated strike — coming only a few weeks before the members’ annual meeting next month.

But member states should take the criticism seriously and work to overcome the setback. “Because if they don’t, then it is the dictators that are trying to run from justice” who will win, she warned.