ICC relevant but thorny for Africa

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Foreign Minister Netumbo Nandi-Ndaitwah

RUNDU – Namibian academics are divided on how best the African Union (AU) should deal with the International Criminal Court (ICC), despite being in agreement with the principles that constitute the ICC and that Africa should remain party to the international judicial body.

The Namibian Foreign Minister Netumbo Nandi-Ndaitwah says the country stands fully with the AU’s recently adopted stance on the ICC that no African sitting head of state should stand trial before the ICC.

Regarding Namibia’s view of the ICC, Nandi-Ndaitwah says the ICC is unfairly targeting African leaders. “Mass killings are taking place in countries outside Africa but the ICC takes no action, but if those very same killings were done in Africa then our leaders would definitely be prosecuted, that is why we say African leaders are being unfairly targeted,” she told New Era yesterday immediately after her return from Antananarivo, Madagascar, where she headed the SADC Electoral Observer Mission for elections in that country.

African leaders expressed strong opinions on the ICC at the Extraordinary Session of the Assembly of the AU that took place last weekend in Addis Ababa, Ethiopia. They want a review of the AU’s relationship with the ICC and resolved to send a contact group of five member states, led by South Africa, “to undertake consultations with members of the United Nations Security Council (UNSC), in particular, its five permanent members, with a view to engaging with the UNSC on all concerns of the AU on its relationship with the ICC, including the deferral of the Kenyan and Sudanese cases, in order to obtain their feedback.” The deferral should be done before November 12, when the ICC trial of Kenya’s President Uhuru Kenyatta is scheduled to begin for alleged crimes against humanity.

Permanent UNSC members are the United States of America, Russian Federation, China, France and the United Kingdom. As of September 2012, 121 UN member states were members of the court and 32 countries had signed but not ratified the Rome Statute. Countries that had not signed or ratified the Rome Statute include India, Indonesia and China. On May 6, 2002, the United States, in a position shared with Israel and Sudan having previously signed the Rome Statute, formally withdrew its intent of ratification. Russia signed but has not ratified the Rome Statute.

And that is the problem, says the Executive Director of the Institute for Public Policy Research, Graham Hopwood. “The main problem with the ICC is that it does not have enough international support. The US, Russia, India and China among many other countries do not support the ICC,” he says, adding that there is a genuine need to have global standards on crimes against humanity and a means of enforcing those standards. The ICC, Hopwood opines, may be flawed and unsupported by key powers but it remains the only hope of achieving international criminal justice.

“Therefore it would be good if AU member countries could, while registering their criticisms, stay within the ICC and work for its reform while lobbying those nations that remain outside of it to come on board. This would be the best option in terms of protecting human rights globally and increasing the credibility of the ICC,” says Hopwood.

Nandi-Ndaitwah simply wants the Security Council permanent members to recuse themselves whenever there are discussions on the ICC. “Why should they discuss something that they do not agree to,” said the foreign minister.

Namibia ratified to the statute on June 25 2002. The Rome Statute established four core international crimes, namely, genocide, crimes against humanity, war crimes and the crime of aggression. Current cases at the court involves Darfur in Sudan, the Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Kenya, Uganda, Mali and Libya. The UN Security Council referred some of the cases to the ICC.

Phanuel Kaapama, another analyst, also has qualms with the UNSC whose permanent members are not party to the ICC. “How will you implement something which you do not believe in?” asked Kaapama.

He nevertheless says African leaders should rather discuss issues of principles of the ICC as opposed to seeking immunity for sitting heads of state. “The AU must  demand that all the countries, especially those on the UNSC, sign and ratify the treaty instead of calling for immunity for sitting presidents,” he said.

Both Kaapama and Hopwood say giving immunity to sitting heads of state would not deter human rights abuses.

“If they say sitting presidents must not be put on trial, they are actually telling us that we must just sit and watch when sitting presidents commit crimes against humanity, such as mass killings and using child soldiers without them having to face the law. There are issues which countries can deal with domestically, but we cannot be calling for immunity for sitting presidents who are implicated in crimes such as genocide,” charged  Kaapama.

Hopwood says this would violate the principles of the ICC that he deems valid. “One of the main impacts of the ICC could be that it would act as a deterrent for human rights abuses by national leaders if they see that serving presidents can be brought to justice,” said Hopwood.

By Mathias Haufiku

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