ADVOCATES OF THE CAMEROON BAR
Taku Chambers
SENIOR ADVOCATE:
Chief Charles A. TAKU, Esq. (Head of Chambers)
Lead Counsel, UNICTR
Lead Counsel, Special Court for Sierra Leone, Counsel ICC
Honorary Member of the Law Firm of Angus Gloag and
Jonathan Goodman and Co.
ADVOCATES
Caroline MUNGE TIME
Shufai Blaise SEVIDZEM B
Chief NJI Jerome FOTULLAH
AWUNGNJIA Tetchounkwi
Lawrence LYONGA NGANDA

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Publications & Decisions Post New Entry

Criminal Court's prosecution and investigation policies on ICC African Situations in perspective.

Posted by Moderator on May 30, 2020 at 2:50 PM

AFRICAN BAR ASSOCIATION CONFERENCE 2016

 

HARARE, ZIMBABWE,

4-7 September 2016

 

Criminal Court's prosecution and investigation policies

on ICC African Situations in perspective.

 

By Chief Charles A. Taku

 

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International Criminal Court's prosecution and investigation policies

on ICC African Situations in perspective

 By Chief Charles A. Taku

Introduction

 

Most international Criminal Courts and Tribunals go far into the history of their Africa situations

to provide the rationale, context and the underlying causes of many of the crimes falling within

their jurisdictions. The ICC which has since its creation targeted mainly Africa and Africans is no

exception to this trend. Standing out in this context and often presented among underlying

factors, are colonial-inspired divisions, ethnicity, land rights, socio-economic and cultural

conflicts, the struggle for power and control.

This paper will discuss some of these factors and their influence and impact on the relations

between the International Criminal Court and Africa.

 

Pre-colonial, colonial and post -colonial origin of Africa Crimes

The slave trade and thereafter the dismembering and partition of Africa at the Berlin

Conference in 1884 among European powers separated and set apart families, communities,

ethnicities and nationalities. The genealogy of most of the crimes perpetrated in Africa, in

particular ICC Africa situations can be traced to this criminal legacy.

It cannot be reasonably disputed that prior to attaining a form of what I may with due respect,

venture to qualify as cosmetic independence, Africa was not a subject of international law. In

this regard, the protections afforded humanity in international law, including the First and

Second World Peace Conferences (1898 and 1907), the League of Nations, the United Nations,

the Universal Declaration of Human Rights, the Geneva Conventions (1949) etc. did not have

Africa and Africans as intended beneficiaries.

Carefully concealed in the spirit of these laws, were principles protecting the acquired rights of

the West and much of the world over their Africa human and material chattels. Africa and

 

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Africans were therefore victims of international law to the extent that it purposively legitimized

crimes against Africa and the black race.

In other words, international law was deemed to legitimize crimes that were perpetrated

against Africans and Africa’s patrimony considered then as the West’s colonial Africa serfdoms

and vassal states. These included the crimes of genocide, pillage, slave labor, sex slavery, rape,

deportation, enforced disappearances, cultural genocide, murder, extermination, looting of

valued artefacts and systematic evisceration of African civilization, cultural values and way of

life.

A key purpose of Africa’s struggle for independence was undisputedly to exorcise the ghost of

this colonial past and its criminal legacy. Sadly, neo-colonialism quickly replaced colonialism. In

this context, although deemed to be free, Africa is in effect not free. The destiny of most of

Africa was left in the hands and at the mercy of political and economic institutions and

structures established to ensure the preservation and protection of erstwhile colonial interests.

The cloud of criminality hanging over Africa is not accidental nor co-incidental. It was a carefully

and calculatedly conceived strategy to portray independent Africa as incapable of governing

itself for its own good. In this regard the independence that was supposedly granted to Africa

was wrapped in the flags of colonial mental slavery concealed in educational, economic and

political structures.

Africa today is left without authentic indigenous people oriented governing and self -sustaining

economic ideologies. Most humiliatingly Africa has been brainwashed to believe in a God far

removed from the images of Africans. Africa thus is as good as cattle fodder for its erstwhile

colonizers to feed on; as indeed they are doing with the consequences too many to discuss in

this paper.

There are frantic attempts by the continuing enslaved African masses to assert their

sovereignty over their own destiny and natural resources. These attempts are being met with

stiff resistance from powerful neo-colonial power hawkers and several networks prying on the

blood and toil of the majority poor. The proliferation of wars and the ensuing crimes

 

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perpetrated in the prosecution of these wars and other forms of instability are consequentially

linked to this vast Africa and international criminal enterprise.

Under these dire circumstances, a majority of African countries saw the Rome Treaty

establishing the International Criminal Court as a mechanism within which to realize the dream

of exorcising Africa from its colonial criminal past and enthroning an era of peace, security and

economic emancipation under the protection of international law in equality for all nations and

all peoples at long last 1 . Africa was so inspired on the basis of the promise of freedom, equality,

non-discrimination and equal justice for all that is enshrined in the UN Charter and replicated in

the statute of the ICC.

Africa believed that the Rome Treaty had firmly established “conditions under which justice and

respect for the obligations arising from treaties and other sources of international law can be

maintained”; so that a reaffirmation of the “faith in human rights, in the dignity and worth of

the human person, in the equal rights of men and women and of nations large and small” can

be attained. 2

It should therefore surprise no one that a failure in the realization of this dream or a mere

appearance of failure to realize these objectives has seriously threatened the basis of Africa

support for the ICC. The ICC Prosecutor’s exclusive focus on Africa is rightly or wrongly

perceived as portraying the institution as advancing the West’s much despised colonial agenda

and its resulting crimes which most Africa joined the ICC ostensibly to combat in all aspects.

The ICC has justified its exclusive focus on Africa on a number of reasons which will be

discussed in this paper. Permit me to respectfully venture at this moment to state that the

Prosecutor has so far provided insufficient reasons or rational explanation for failing to

investigate non-African perpetrators of the crimes in ICC Africa Situations falling within its

1 The Preamble of the Rome Statute of the ICC and its article 1. In particular, the pledge that “Conscious that all

peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this

delicate mosaic may be shattered at any time………       Reaffirming the Purposes and Principles of the Charter of

the United Nations, and in particular that all States shall refrain from the threat or use of force against the

territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes

of the United Nations”

2 The Preamble and articles 1 and 2 of the UN Charter.

 

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mandate. For this and other reasons, the ICC is little known outside Africa. It commands little

respect and relevance in conflict regions outside Africa. In this context, the ICC can best be

called an African Court.

 

The vision and the record

 

There is no gainsaying that the fundamental challenge to international justice is always to

shorten the “disconnect” between theory and practice, between the goals of international

justice which we all support and the practices which too often obstruct the achievement of

these goals. Africa expects nothing less from the ICC. However, judging from Africa’s initial

vision of the Rome Treaty, and the records so far attained, we need to always ask ourselves: Is

international justice at the ICC being implemented so that the “rule of law” is applied to all,

with equality and fairness? Today, in respect of the ICC African situations, we have to honestly

answer “no”. The targeting of Africa reminds many in Africa of the arrogance and the impunity

of its humiliating colonial past. A past which I have stated still hangs over Africa like the sword

of Damocles.

Many in Africa believe that the selective focus on Africa is driven by international politics and

not the international rule of law. Writing in Global Rights (11 April 2014) Mwangi S. Kimanyi

explained that “African states overwhelmingly supported the Rome Statute in the hope that

those perpetrating atrocities on the people of Africa would never again go unpunished”. 3

Africa’s support for the Rome Statute can reasonably be construed as an African reaffirmation

of the “never again” pledge within the context of centuries of colonial international criminality

that threatened and continues to threaten the essence and existence of Africa and the black

race.

According to Mwangi, “Africa which should have benefited greatly from an International

Criminal Court that is credible, fair, competent and independent”, instead has been projected

as an exclusive bastion of international criminality requiring ICC selective focus and babysitting.

This image of Africa under these circumstances justifies revulsion; even rejection.

 

3 Mwangi S. Kimenyi The International Criminal Court in Africa: a failed experiment?” Global Rights of 11 November, 2014

 

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This criminal projection of Africa is insulting.

 

There is no gainsaying that legal processes arising from interventions deemed selective and

discriminatory must be infested with the vile politics that motivated the interventions. This

places the politicization of the ICC Africa trials in its appropriate context. The perceived

politicization of the ICC intervention process on Africa renders the trials conceptually and

practically unfair and unjust.

Explaining conceptual underpinnings of selective and discriminatory trials, Professor Jenia

Iontcheva Turner stated: “The “Legal” and “Political” conceptions of international criminal trials

are ideal types. To some degree all law is political……when trials move further along the

political spectrum, defendants’ rights suffer. ……. Even trials which are exclusively political,

there are instances in which political and adjudicative purposes clash, and one must prioritize

above the other”. 4

The exercise of Prosecutorial discretion to investigate and prosecute even in situations where

the process was triggered by a state party, the UN Security Council or the Prosecutor proprio

muto is potentially influenced by profound policy and political considerations. 5 These

influences may be financial contributions towards the investigations and /or the geo-political

and economic hegemonic powerful influence of some super powers members or non-members

of the UN and/or State Parties to the Rome Statute.

 

4 Virginia Journal of International Law: Volume 48, Number 3, April 2008 p.543. Defence Perspectives on Law and Politics in International

Criminal Trials.

5 Article 13 of the Rome Statute of the ICC states: The Court may exercise its jurisdiction with respect to a

crime referred to in article 5 in accordance with the provisions of this Statute if:

(a)     A situation in which one or more of such crimes appears to have been committed is referred to the

Prosecutor by a State Party in accordance with article 14;

(b)     A situation in which one or more of such crimes appears to have been committed is referred to the

Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c)     The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15

 

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For example, although The US signed the Rome Statute in 2000 it did not ratify the treaty and is

thus not a state party. However, it has signed special agreements with many ICC member states

intended to shield or immune US citizens and military service personnel from the jurisdiction of

the ICC. 6 Despite this spiteful disregard for the mandate of the ICC, the United States continues

to influence ICC Prosecution and Africa intervention policies.

Through its membership of the Security Council and its direct contributions, the US supports

and significantly influences ICC Prosecutorial policy decisions when it suits it’s geo-strategic and

economic agenda. This US influence like that of its NATO European partners has tainted the

judicial processes at the ICC and portrayed the court’s essentially Africa-focused interventions

as political and neo-colonial.

While insulating itself, its service-members and vast economic interests in and out of Africa

which significantly contribute or are responsible for the conflicts in which crimes coming within

the jurisdiction of the court are perpetrated from investigation and prosecution, the US and its

NATO alliance partners have consistently criticized African leaders for allegedly seeking

immunity from criminal prosecution under the Protocol conferring criminal jurisdiction on the

African Court of Justice and Human Rights. 7

This criticism obviates the fact that each international court has its peculiarities and the African

Court of Justice and Human Rights will be no exception relating to the question of immunity

and its jurisdictional reach. The criticism of the Africa Union endeavor does not acknowledge

the vast jurisdictional reach of the Protocol to the African Court of Justice and Human Rights on

many of the egregious crimes committed in Africa by Africans and Non-Africans which

distinguishes it in some significant respects from the ICC. Deferring to the jurisdiction of the

ICC, on international crimes committed in Africa, as many of the critiques suggest, will leave the

majority of the crimes un-investigated, un-prosecuted and unpunished. 8

 

6 America Service-members’ Protection ACT (ASPA)2001

7 Protocol on amendments to the Protocol on the Statute of the African Court of Justice and Human Rights 15 May 2012 Article 46 A Bis states,

“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody

acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

8 Article 28 A of the Africa Protocol criminalizes: genocide, crimes against humanity, war Crimes, crimes of unconstitutional

change of government, piracy, terrorism, mercenarism, corruption, money Laundering, trafficking in persons, trafficking in

drugs, hazardous wastes, Illicit exploitation of natural resources and aggression.

 

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The Rome Statute does not criminalize and therefore does not have jurisdiction over the crimes

of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money

laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes and illicit

exploitation of natural resources. The African Court of Justice Protocol does. There is no

gainsaying therefore, that these crimes over which the African Court of Justice and Human

Rights’ Protocol has jurisdiction are the most common in the continent.

These crimes are also the most destabilizing. The category of criminals is easily identified. The

victim pool of these crimes trickles to the basic fabric of the society. Selective and

discriminatory justice targeting only Africa and Africans will not be possible in the investigation

and prosecution of these crimes.

The Protocol targets the most egregious crimes perpetrated in Africa at the source. This may be

one reason why the Protocol is attacked and vilified. To borrow the much taunted language of

Nigerians in another but related context, “this is international criminality against Africa fighting

back”.

The immunity provision written into article 46 A bis of the Protocol to the African Court of

Justice and Human Rights is founded in customary international law. It is undisputable that the

UN Charter article 104 confers immunity on the UN 9 so also are a wide range of diplomatic

agents 10 . According to Rene Vark such agents due to the principle of personal inviolability of a

diplomatic agent may not be arrested or detained under any circumstance.

This is the basis on which French service personal on UN Peace Keeping assignment in the

Republic of Central Africa benefited from immunity from Prosecution for the widely reported

cases of rape thanks to the article 104 immunity provision of the UN Charter 11 . France, a major

9 Article 104 of the UN Charter states “The Organization shall enjoy in the territory of each of its Members

such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its

purposes”. See also. Rene Vark: Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes

Juridica International VIII 2003 p112 Lawji_2003_1_110

 

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super power member of the UN Security Council and significant critique of article 46 A bis of

the Africa Court of Justice and Human Rights’ Protocol has taken no steps to investigate these

Peace Keepers at the completion of their tour of duty. Also, the spread of cholera in Haiti and

Nepal widely attributed to the actions of UN Peace Keeping personnel have not been

prosecuted due to the protections afforded by article 104 of the UN Charter.

The Africa Union was therefore not creating a new rule of international law to insulate African

leaders from investigation and prosecution for alleged crimes committed by them nor did the

provisions of article 46 A bis of the Africa Protocol confer absolute impunity on them. The

repeated assertions to the contrary is mere propaganda intended to stifle a much desired Africa

initiative which far from perfect, is a significant step towards providing a Pan African solution

towards confronting impunity and ending the scourge of war on the African continent.

A careful reading of the impugned provision of the Africa Court of Justice Protocol reveals that

the functional immunity granted under that provision relates only to the duration of the

mandate of the listed individuals. The crimes they may have perpetrated while holding public

office subsist and they may be held accountable on leaving public office.

 

Confronting impunity

 

It is conceded that many crimes are perpetrated in Africa justifying in some case the ICC

intervention.  But looking at what is going on in the world today, a great many war crimes are

committed in other regions of the world.

The ICC Prosecutor has commenced preliminary examinations in other part of the world, one of

which has given rise to an investigation. 12 The ICC Prosecutor has nevertheless not

demonstrated sufficient interest and ability to investigate and prosecute international crimes in

other regions of the world.

 

12 The ICC Prosecutor has commenced preliminary examinations I Afghanistan, Burundi, Colombia, Guinea, Iraq/

UK, Nigeria, Palestine, Registered Vessels of Comoros, Greece, and Cambodia, Ukraine. Investigations have been

opened in Central Africa Republic, DRC, Darfur, Sudan, Libya, Mali, Central Africa II, Georgia, Cote D’Ivoire, Uganda,

Kenya, Nigeria.

 

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The ICC declined to investigate the crimes perpetrated by ISIS even though a significant number

of ISIS combatants are from ICC state parties in Europe. Egregious crimes for which ISIS claimed

responsibility were committed in France, Belgium and Germany. Such attacks which are on the

rise have mobilized world leaders and hundreds of thousands of demonstrators across Europe.

The UN Security Council failed to pass a resolution authorizing ICC intervention in Syria. This

conflict in which super powers members of the UN Security Council are actively participating

has claimed hundreds of thousands of lives and the casualties are on the rise.

It seems improbable that the ICC investigator can reasonably investigate the crimes

perpetrated in most non -African conflicts without investigating crimes perpetrated by service

men and women deployed by these super powers to prosecute the wars in the affected

countries.

The symbolic decision to conduct a preliminary examination of the alleged crimes committed by

British soldiers in Iraq may surely not end in an investigation, although the alleged crimes have

never been reasonably disputed. The political, budgetary, ideological and geostrategic risks in

investigating and prosecuting these service men and women are just so grave to even

contemplate.

Despite their own record of criminality in wide ranging conflict in Africa and other parts of the

world, some of the world super powers portrayed the political post-election conflicts in Burundi

and Kenya as conflicts that required ICC interventions. These recommendations were ill-

motivated or were made in attempts to misrepresent the real causes of the conflicts to justify

ICC intervention.

In the case of Burundi consistent UN agency field reports have accused neighbouring Rwanda

for training and arming Burundi refugees, including child soldiers to infiltrate and destabilize

Burundi. A failed coup leader in Burundi Godefroid Niyombare claimed responsibility in a KTN

Kenya television interview on July 5 2015, for the distribution of grenades to the civilian

population of Burundi to destabilize his own country in the hope of toppling the government 13 .

 

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Despite this overwhelming evidence some Western Governments preferred relying on

concocted evidence that includes a video of Boko Haram terrorist attacks in Northern Nigeria

that was submitted to various UN organs and the ICC by civil society activists and NGOs to press

for ICC intervention and investigation of alleged crimes against humanity committed by the

security forces of Burundi. 14

As the situation in the Republic of Kenya shows, boasting that he was going to make Kenya an

example of the effectiveness of ICC prosecutions, Mr Ocampo the erstwhile ICC Chief

Prosecutor made a decision to intervene in the Kenya post-election crisis barely a few months

of its occurrence. It turned out that he relied in the main on reports established by partisan

NGOs, national and international special interests and civil society activists to initiate his

intervention in this post-election political agitation with significant risks. 15 Mr Moreno Ocampo

failed to recognize that profound independent investigations which he did not conduct, are the

bedrocks of fair and credible prosecutions which are attributes of fundamental fairness.

Some of the individuals who prepared these reports and provided some of the accounts on

which Mr. Ocampo relied on to bring the cases, entered the political arena while the cases were

ongoing, contested parliamentary and senatorial elections and prevailed. This significantly

compromised their neutrality and integrity as dispassionate human rights crusaders whose

primary motive for submitting their reports to the ICC Prosecutor was to combat impunity and

to protect the interest of victims of impunity. It turned out that the reports prepared by these

individuals were not credible and were rejected at trial. Their participation in the cases was to a

large extent responsible for the collapse of the cases.

It is significant to note that in a credible attempt to correct this grave policy failure, the Office

of the Prosecutor in its Strategic Plan 2016-2018 specifically laid out investigative and

prosecutorial standards which clearly depart from the prior strategy that relied on reports and

evidence gathered by these non- professional sources to formulate prosecutorial decisions on

14 Burundi deposited its instruments of ratification of the Rome Statute on 21 September 2004. On 25 July 2016, the Prosecutor

opened a Preliminary Examination into the Situation in Burundi.

15 The Republic of Kenya ratified the Statute of Rome on 15 March 2005. The Post -election conflict in Kenya took place in

2007/2008. On 31 March 2010 Pre-Trial Chamber II of the ICC ordered an investigation in the situation in the Republic of Kenya

ICC-01/09-19 pursuant to article 15 of the Rome Statute.

 

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interventions, investigations and prosecutions. 16 This laudable policy shift if applied may

significantly lead to better prosecutorial interventions and prosecutions.

Justifying ICC Africa Interventions

 

The Prosecutor of the ICC has criticized the AU and some African governments for politicizing

ICC African interventions. The charge of the politicization of international justice is not

surprising. Indeed, a number of legal scholars among them Professor Malcom N. Shaw holds the

view: “that there can never be a complete separation between law and policy. No matter what

theory of law or political philosophy is professed, the inextricable bonds linking law and politics

must be recognized” 17 .

The politicization of ICC interventions is institutionalized in the Rome Statute. The Rome Treaty

by conferring the power to make referrals and deferrals on the Security Council provided the

Council with an additional political tool by which it may exercise its Chapter VII authority. 18 To

this date, this authority has been invoked only in ongoing African conflicts.

Ignoring African and regional efforts towards peace, the UN Security Council referred the

situation in Darfur to the ICC. 19 The Prosecutor opened a proprio motu investigation in Cote

D’Ivoire in October 2011. 20 This intervention was made at the heart of the post-election

political crisis in which UN forces and French forces present in Cote D’Ivoire used military force

16 The Prosecutor made a candid admission in paragraph 17 of the Prosecution strategic plan thus.” In its 2012-

2015 Strategic Plan, the Office committed itself to managing cases developed on the basis of its previous

prosecutorial policy to the best of its ability. During this period, the Kenya situation gave rise to particular

challenges for the Office. Several factors led the Prosecutor to withdraw the case against Uhuru Kenyatta and

Francis Muthaura: the limited availability of evidence due to the specific nature of the case; the Prosecutor’s

limited access to evidence due to non-cooperation; and the lack of alternative investigative avenues to substitute

for key evidence, which was ultimately eroded and found to be unreliable. The shift in prosecutorial policy

heralded in the Office’s Strategic Plan(June2012-2015), emphasizing the need to be trial ready as early as possible,

building cases upwards where necessary and increased reliance on varied forms of evidence, will help avoid the

recurrence of such challenging situations”

17 International law Fifth Edition Cambridge 2007, PP 9 and 11

18 Article 16 of the Rome Statute of the ICC states “No investigation or prosecution may be commenced or

proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted

under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be

renewed by the Council under the same conditions”.

19 Situation in Darfur ICC-02/05 Situation referred by the UN Security Council in March 2005.

20 Cote D’Ivoire accepted the Jurisdiction of the ICC in April 2003. The post-election political crisis occurred in

2010/2011 and the Prosecutor exercised his proprio motu authority to intervene

 

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to subdue and capture President Laurent Gbagbo. While President Gbagbo was handed over to

the ICC Prosecutor the political power that was the basis for the political crisis was handed over

to his election challenger Allasane Ouatarra. It is hard in this situation to purport to delink the

supposed legal motivations for the prosecution of President Gbagbo and the handing over of

power to his then political rival in the post elections crisis in which alleged crimes were widely

to be have been committed by all the parties in the conflict.

The referral in the situation in Libya was made concurrent with UN Security Council exercise of

its Responsibility to Protect authority and NATO extensive bombardments. The Security Council

and NATO interventions claimed thousands of lives, conferred legitimacy on non-state actors

and criminal gangs, providing them with the resources, weapons and the impunity with which

they perpetrated grave crimes in Libya and are continuing to perpetrate crimes targeting North

Africa, Africa Sahel and West and Central Africa. Peace efforts initiated by the African Union

and other regional bodies that were ongoing were simply ignored. Like in the Cote D’Ivoire

situation, the legal and political motivations were complementary bed fellows, serving a

common master; the neocolonial West.

Once the Prosecutor made a proprio muto intervention in Cote D’Ivoire and the Security

Council made a referral in the Situation in Libya, the UN Security Council in the exercise of its

Chapter VII intervention authority deviated from the intendment and objectives of the Rome

Statute and construed the role of the ICC Prosecutor as complementary to and in support of its

Responsibility to Protect Mandate. This clearly portrayed the ICC Prosecutor as a regime change

agent at the service of super power participants in the armed conflict.

Effectively the ICC intervention during the pendency and at the height of the armed conflicts

led to regime change in Libya and Cote D’Ivoire. This seriously compromised the independence

and neutrality of the ICC. The ICC intervention was perceived as supporting the war efforts

rather than seeking justice for victims. ICC investigation and prosecution targeted alleged

perpetrators that the UN, NATO and some super powers wanted taken out. Once that mission

was attained, the ICC took no steps to investigate the criminal actors who fought on the side of

NATO, the Super powers or the UN. Yet the record of criminality of the non-state actor criminal

 

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gangs has been condemned even by the UN that invited and supported them and the ICC into

the conflicts. The ICC intervention in these situations was not perceived as impartial and

independent.

The ICC Prosecutor personally initiated an intervention in the Republic of Kenya during the 2007

post-election conflict. Some delegates at the Rome Conference were skeptical in granting the

authority to personally initiate interventions to the Prosecutor without reasonable oversight.

The Judges in the Pre-trial Chamber in the confirmation of charges decision in the case of

Prosecutor V Francis Mathuara and Uhuru Kenyatta anxiously considered this matter. 21

Mr. Moreno Ocampo the former Prosecutor of the ICC granted an Interview to a Netherland

based, News Organ admitting that political pressure was placed on him by some diplomats

present in Nairobi and some NGOs to rely on the ICC case to bar President Uhuru Kenyatta and

Vice President William Ruto from contesting the Kenyan presidential elections which they

contested and won. Failing in their plan, they continued to interfere with the judicial process. 22

This interference, poor investigations and poor case management significantly discredited the

Kenyatta and the Ruto/Sang cases leading to their collapse. 23

Rule of law for all

 

The Prosecutor rightly asserts that a number of ICC interventions were at the request of African

governments. Some of such state party referrals were intended to serve political objectives.

Once the Prosecutor evinced an effort to look beyond these political objectives, the state

parties concerned strenuously resisted. State Party referrals should not form an uncritical basis

for ICC selective focus.

Unfortunately, even some critical voices in and out of Africa are still ignorant of the objectives

of the Rome Statute. Many on the continent ignorantly consider the ICC as an institution whose

 

21 ICC-01/0-19, Decision Pursuant to Article 15 of the Rome Statute, on the Authorization of an Investigation into

the Situation in the Republic of Kenya. Para 52

22 Thehaguetrials.co.ke/article/mr-ocampo-why-are-only-africansbeing judged by the icc; 30 January 2014

23 On the 13 March 2015, Trial Chamber V(B) of the ICC delivered a decision granting the Prosecutor’s application

withdrawing the charges against President Kenyatta. On 4 April 2016 the Trial Chamber delivered a judgment

terminating the case against Mr. Ruto and Mr. Sang.

 

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mission is to intervene and exercise jurisdiction in all human rights violation situations or in

political conflicts. 24 Politicians, civil society activists, NGOs and special interest organizations

spend time wooing the ICC to intervene and help them fulfill their mandates. The truth is that

the ICC plays but a complementary role to national institutions and is neither a super sheriff nor

a supranational legal overseer with the mandate to superintend and control national

institutions. 25 With a more robust outreach strategic policy, Africa will come to know the

mission and objectives of the ICC in its appropriate role.

A critical review of ICC interventions and investigations in Africa establishes that the ICC

whether invited by state parties or by the UNSC, has targeted solely the vanquished in conflicts

in its Africa situation. This policy tacitly grants impunity and immunity to victors and their

supporters and tacitly encourages the perpetration of more crimes. The policy encourages and

escalates conflicts and crimes, despite ICC intervention. It entrenches divisions arising from

African conflicts; affording victims allied to the victors the protection and benefit of

international criminal justice; leaving the victims allied to the vanquished helpless but pruned

to self-help. These communities whether on the side of victors or the vanquished deserve and

require equal justice and equal protection of the law as prerequisites to reconciliation and

national healing.

Despite these concerns about the ICC interventions, the critical voice and threats of ICC

interventions along with those of other actors is contributing to the organization of violence

free elections in a number of African situations. Kenya and Nigeria are two examples. Overall,

threats and selective interventions have not restrained the wave of criminality afflicting Africa

which is on the rise. Going hand in hand and complementing each other, only equal justice for

all without a discriminatory connotation, peace and reconciliation will deter crimes and

conflicts in Africa. The rule of Law should be for all and not just some.

Calling into Question the effectiveness of ICC interventions

 

24 Crimes coming within the jurisdiction of the ICC are laid out in articles 5-8 of the Rome Statute. Article 70

criminalizes offenses against the administration of justice.

25 Articles 1 and 17 of the Rome Statute.

 

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The escalation of conflicts and/or political tensions in Libya, Central Africa Republic, Sudan and

DRC despite ICC interventions calls into question the effectiveness of ICC Prosecutorial

interventions. The ICC Prosecutor need to re-evaluate her Africa intervention policy and

balance it with the overall objectives of the Rome Statute. This requires the delivery or

provision of universal, non-discriminatory, no-selective justice to all. The ICC needs to

encourage and assist African countries to strengthen their capacity to investigate and prosecute

international crimes in fulfillment of the complementary goals of the Rome Statute. 26

The ICC outreach programme should aim at getting more African countries to domesticate the

Rome Statute into local legislations. The decision by the AU to amend the protocol to the

African Court of Justice and Human Rights conferring it with criminal jurisdiction to further the

objectives of ICC complementarity is an achievement that the ICC should be celebrating rather

than oppose. The Western media has criticized the African union for supposedly seeking

immunity of African leaders from prosecution. This misplaced criticism obviates the fact that

the deferral authority of the Security Council under the Rome Treaty which is exercisable at all

stages of a case before the ICC does just the same. It in effect grants immunity from trial.

The Prosecutor has not established a credible threshold on the basis of which to apply the

principle of complementarity in its Africa interventions. Where the principle of

complementarity has been applied, it has rewarded lawlessness and criminality. For example,

the deferral to Libya which had no effective functional central government and judiciary in the

case of Abdullah Al-Senussi while denying Kenya with a functional democratic government and

a new democratic constitution the right to investigate and prosecute crimes perpetrated during

its post-election conflict in 2007 has not been sufficiently explained.

The ICC Prosecutor and the Judges at the ICC have failed to investigate non-African perpetrators

of crimes occurring in ICC African situations. Falling in this category are financiers of African

conflicts and potential crimes also called “arms for minerals merchants”. Investigating this

category will require looking beyond Africa and Africans.

 

26 Pursuant to articles 1 and 17 of the Rome Statute.

 

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It will require investigating potentially powerful countries, institutions and individuals bearing

the greatest responsibility for African crimes. The Prosecutor provides no reasons for selectively

keeping the focus away from this category of perpetrators. Not investigating and prosecuting

them, affords them tacit immunity and impunity to sponsor and sustain the culture of violence

and criminality that is claiming millions of lives on the Africa continent. The lack of interest by

the Prosecutor in investigating and prosecuting these powerful criminal actors is responsible for

the cycle of violence and criminality afflicting Africa.

 

Institutional recognition and dialogue

 

ICC has been accused of being insensitive to conflict resolution efforts in ICC Africa situations. It

is perceived to be insensitive to the sovereignty of African states and the cultural dynamics of

its people. Africans are culturally sensitive about matters pertaining to the very essence of their

humanity, justice, security and their values system.

Tired of being humiliated out of efforts deployed to provide solutions to African problems by

Africans, the AU is becoming assertive in reclaiming respect and a recognition of its rightful

place in African affairs. The ICC and the international community should accord this African

sensitivity due consideration and recognition.

It must be recognized that despite significant challenges, Africa is undergoing critical changes

worthy of note. For the past decades, a more assertive AU has deployed peace-keeping and

combat forces to a number of African conflicts areas and redoubled its conflict resolution

efforts in several others. Against the backdrop of Western actions intended to prevent ICC

interventions and prosecutions in crimes perpetrated by their citizens across the globe,

including Africa, the AU strongly objects to the targeting and use of Africans as guinea pigs for

the development of new principles of international criminal justice and jurisprudence.

The ICC Prosecutor needs a critical review of her Prosecutorial policies and adopt a more

rational, balanced and engaging approach that respects state sovereignty while pushing for the

fulfillment of her mandate under the Rome Statute. Two significant actors of international

criminal justice who from an African perspective and that of the Nuremberg trials symbolize

 

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victors’ justice have in recent times spoken out forcefully in support of the wisdom of adopting

this approach.

Louise Arbour a former Prosecutor of ICTY and the ICTR in an interview in the Mail Globe

(March 28, 2015) regretted the errors she made in ignoring peace efforts in conflict situations.

According to Louise Arbour: “There is a basic flaw in the international effort to simultaneously

pursue justice, peace and human rights…… the initiation and unfolding of criminal prosecutions

can complicate if not impede peace processes. The negotiation of a lasting peace often requires

a delaying, or forgiving, of justice. In attempting to impose fully formed notions of equal rights

on countries that have yet to develop them internally, Western countries appear to be bullies,

undermining their efforts on the other two fronts. The way out of this, is to stop trying to

impose everything at once and opt for a more humble “micro” approach: a quiet, mediating

role in fixing individual wrongs”. Drawing from her experience “in international governance,

human security, the responsibility to protect, arms reduction, international criminal justice”

Louise Arbour conceded that international justice is “either very stuck, or it’s very confused”. 27

In a lecture to Students in Emory University, (2 Jan. 2015) Ben Ferencz the last surviving Chief

Prosecutor of the Nuremburg trials recommended a reconsideration of the goals of criminal

law. He said that “criminal law is not to put people in jail. It’s to deter the crimes and create a

more humane world”. How do you do that? He asked. Answering his own question, he said,

“The first step is to stop glorifying war, and begin glorifying peace. You cannot kill an ideology

with a gun. You have to have a better ideology.” 28

This is just the type of complementary approach the Chief Prosecutor of the ICC Fatou

Bensouda has in a significant policy shift, just adopted towards the Situation in Colombia. Africa

deserves the complementary recognition she has accorded to the Peace initiatives that will end

in a historic peace agreement between the government of Colombia and the Revolutionary

Armed Forces of Columbia. 29

 

27 Mail Globe March 28, 2015

28 Emory University School Law, Jan. 2, 2015

 

19

 

In her statement, the Prosecutor acknowledged the peace agreement that will end the fifty-two

years armed conflict in Colombia. She noted in particular that the parties did not include a

provision for immunity for grave crimes that threatened the peace and claimed so many victims

for which effective punishment was required. In a probable attempt to encourage the peace

objectives and justice for victims of grave crimes, she differed to the Government and People of

Colombia the exercise of the right of complementarity in the provision of effective punishment

for these crimes.

This policy shift should be popularized and applied to Africa ICC Situations in other to

encourage peace initiatives as well as accountability for grave crimes falling within the

Jurisdiction of the Statute of Rome. The ICC Prosecutor in this policy shift clearly recognized the

efforts of other justice and peace actors towards reconciliation, peace and accountability and

an end to impunity.

To many in Africa, her predecessor Moreno Ocampo portrayed himself and acted as a media

frenzied self-glorifying Super Sherriff with a special knack for interventions in ongoing political

conflicts and irresponsibly getting the ICC mired in those political conflicts. This conduct was

perceived as intended to gratify and promote the ego of the individual and not the clearly

stated objectives of the Rome Statute. It was deemed condescending, demeaning, insulting,

revolting and repugnant to the sovereignty of African states and the personal dignity of

Africans.

 

The conscience of universal Justice

 

The exclusive targeting of Africa needs to be reversed. The wisdom and justice of reversing this

policy is justified by the requirement of fundamental fairness in the administration of

international criminal justice.

The wise counsel of Justice Robert H. Jackson Chief of Counsel for the United States, in his

Opening Statement before the International Military Tribunal at Nuremburg on 21 November

29 Statement of ICC Fatou Bensouda dated September 1, 2016 on the Conclusion of Peace Negotiations between

the Government of Colombia and the Revolutionary Armed Forces of Colombia “The Peoples’ Army”.

 

20

 

1945 illuminates the universal goal and appeal of fundamental fairness of criminal proceedings:

“Fairness”, Justice Robert H. Jackson submitted, “is not a weakness . . . [but] an attribute of our

strength,” … “We must never forget that the record on which we judge these defendants today

is the record on which history will judge us tomorrow. To pass these defendants a poisoned

chalice is to put it to our own lips as well. We must summon such detachment and intellectual

integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s

aspirations to do justice.”

The most remarkable lesson from the International Military Trials in Nuremberg and Tokyo is

not about the convictions and the harshness of the sentences meted out on those who bore the

greatest responsibility of the crimes that shocked the conscience of humanity. The judgment in

those cases and the convictions secured justified and secured the eternal relevance of the

collective pledge that was written in our collective consciences and that of posterity that never

again will crimes of such magnitude happen on our watch.

Regrettably despite the Nuremberg and Tokyo convictions and humanity’s collective pledge,

such crimes have occurred on our watch. They will occur again and again unless the institutions

put in place by the comity of nations to enforce humanity’s collective pledge establish

appropriate legal frameworks that are fair and seen to be fair to all, to pre-empt, investigate,

prosecute and punish the perpetrators of grave crimes that threatened and continue to

threaten humanity and our common existence. 30 Some of these vicious crimes have not been

criminalized and punished for the fear that doing so, may challenge the ideological and

material heartbeat of the industry of death that pry and feeds on the sweat and blood of the

weak, exploited poor races of the world and the wretched of the earth.

The most remarkable lesson of these trials may indeed not even be the salvific idea initiated by

Stalin that the German accused be subjected to due process of the law as opposed to summary

execution proposed by President Franklin Roosevelt, lest vengeance and the criminal methods

of dispensation of justice by the German war criminals that sent millions of innocent Jews to

gas chambers occasioning the holocaust be legitimized and celebrated and dignified.

 

30 A remarkable attempt by the Africa Union to criminalize for the first time ever some of the most egregious

international crimes afflicting humanity in article 28A of the Protocol of the African Court of Justice and Human

Rights has not attracted the attention or support required.

 

21

 

It is not victor’s justice that the judicial process was. Rather it was about the impassioned

submission made by the Chief Prosecutor Justice Robert H. Jackson for the participants in the

trial to “summon such detachment and intellectual integrity to their task that the trial would

commend itself to posterity as fulfilling humanity’s aspiration to do justice”. Although this

submission was made in a court room in Nuremberg some seventy years ago, it was directed to

the conscience of humanity at large.

Today as we sit here today in Harare in this great nation of freedom fighters, we can proudly

assert that from the trial of the perpetrators of some of the worst crimes that threated

humanity, after the slave trade, Justice Robert H.Jackson spoke for you and me and the world at

large when he strongly recommended the fairness of criminal proceedings as the solemn

weapon with which the fight against impunity must be fought and won. 31 Complementing his

esteemed colleague, Justice Robert H. Jackson, Ben Ferency, the only surviving Chief Prosecutor

of the Nuremberg trials emphasized the objectives of criminal law in a lecture to students of

Emory University on 2 January 2015. “criminal law” he said, “is not to put people in jail. It’s to

deter the crimes and create a more humane world”.

It is hoped that these worthy contributions by two Chief Prosecutors at Nuremburg will attract

the attention of their esteemed colleague the Chief Prosecutor of the ICC Fatou Bensouda as

she ponders over a reconsideration and reformulation of the ICC Prosecutor’s policy of

exclusivity and selectivity targeting of Africa. It is conceded that she inherited this policy and

has to defend or reform it. The ICC Prosecutor policy shift evident in her statement on the

Situation in Colombia on September 1, 2016 may be a pointer to the fact that at the long

awaited journey towards the assertion of the universal pantheon of justice reaffirming the

“faith in human rights, in the dignity and worth of the human person, in the equal rights of men

and women and of nations large and small” in peace and justice for the good of humanity

without discrimination may have commenced. Were this to happen in earnest, then and only

 

31 Flowing from this appeal, fundamental fairness of criminal trials became the soul of our universal criminal

justice system. See Universal Declaration of Human Rights (UNGA Res. 217 (III), Paris 10 December 1948, Articles

1,2,10 and 11; ICTY Statute article 21, ICTR Statute article 20, Special Court for Sierra Leone article 17, Special

Tribunal for Lebanon article 16, Extraordinary Chamber for Cambodia article 35 (new), the ICC articles 67 and 68

and the International Covenant on Civil and Political Rights article 14.

 

22

 

then, will Africa consider its search for recognition and respect among the races and nations of

the world and in the policy consideration of the ICC Prosecutor reasonably fulfilled. 32

 

Conclusion.

 

As the gatekeeper of international criminal interventions, investigations and prosecutions at

the ICC, the ICC Prosecutor must quickly adopt the wisdom of these powerful submissions

made by her peers at Nuremberg, Mr. Justice Robert H. Jackson and Chief Prosecutor Ben

Ferency as the signposts on which to anchor fair international criminal interventions and

prosecutions at the ICC. Fundamental fairness requires that the ICC Prosecutor casts the spear

of justice towards those bearing the greatest responsibility for crimes falling within the

jurisdiction of the court in all the directions in which they may be found not selectively in some

only.

For this spear of justice to slay the beast of impunity and criminality on the African continent, it

must aim at perpetrators from all parts of the world who may be or may not be Africans. The

justifications and reasons for targeting Africa and Africans in alleged crimes perpetrated in

Africa against African victims fall flat to the ground considering that not a single arm merchant,

mineral explorer, money launderer, and geopolitical power hawkers who finance and support

the war efforts in which the crimes are perpetrated has been investigated or prosecuted.

For this reason, the ICC Prosecutor must cast her intervention nest beyond Africa in search of

the perpetrators of grave crimes in Africa, lest the route to The Hague transforms to a painful

reminder of the transatlantic slave route. The time to restore the hopes that the Rome Statute

held for millions on the African continent is now.

Africa is not seeking immunity or impunity from ICC Prosecutor’s intervention, investigations

and prosecutions as some critics have superficially and wrongly asserted. Africa is seeking

interventions that accord with the objectives of the Rome Statute which in dignity, fairness, and

equality recognizes her place among subjects as opposed to objects of international law.

 

32 Preamble of the Rome Statute; Preamble and articles 1 and 2 of the UN Charter.

 

23

 

Chief Charles Taku, a Traditional Chief and contributor to several professional journals

and newspapers from Cameroon, is an Advocate of the Supreme Court of Cameroon.

He is currently a Member of the Executive Committee of the International Criminal

Court Bar Association and Vice President in charge of the Defence. He is also the Vice

President of the Association of Defence Counsel before the International Criminal

Tribunal for Rwanda and its Residual Mechanism (ADAD).

 

24

 

He has practiced law for 35 years. For the past 16 years he was lead counsel at three

International Criminal Courts: (a) UNICTR (Semanza and Military II). With Co-counsel

Beth Lyons he obtained an acquittal for their client in the Military II case on appeal;

(b) the Special Court for Sierra Leone (The RUF Case and the Contempt Proceedings

Counsel for Mr. Samuel Kargbo, in Prosecutor V Hassan Papa Bangura and others,); and

(c) the ICC (Continuing investigation in the Republic in Kenya, Article 70) Prosecutor Vs

David Matsanga,

(d) ICC (Situation in the Central Africa Republic, Prosecutor V. Bemba and others,

Article 70 proceedings, Counsel for Mr. Narcisse Arido), (e) ICC (Situation in Northern

Uganda, Prosecutor v Dominic Ongwen.

Chief Taku represented Mr. Denis in Atemkeng v The African Union before the Africa

Court for Human and Peoples’ Rights and successfully represented Mr. P.D Engo in Engo

v Cameroon at the UN Committee for Human Rights in Geneva Switzerland among many

others.

Among his many publications are:

International Politics and Policy Considerations for the Inappropriate Targeting of Africa

in the ICC OTP, in CONTEMPORARY ISSUES FACING THE INTERNATIONAL CRIMINAL COURT, by Professor

Richard Steinburg Published by Brill Nijhoff with Preface by ICC Prosecutor Fatou

Bensouda (April 2016).

African Court and International Criminal Justice and the Quest for a New World Judicial

Order;

The ICC and Kenya: Going Beyond the Rhetoric in Justice Belied (2014): The Unbalanced

Scales of International Criminal Justice edited by Sebastien Chartrand and John Philpot;

Contextual Foundations of International Criminal Jurisprudence (2014) Author house

Indiana USA.

 

25

 

Charto_us@yahoo.com Chartous@gmail.com

Categories: ICC

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