Africa withdrawal from the International Criminal Court is not a guarantee for escape routes

Owing to what many African leaders perceived as the International Criminal Court (ICC) disproportionately targeting African leaders while overlooking violations by the United States and Israel, few Countries in Africa have voiced out their intentions to withdraw from the ICC.

Kenya because of the indictment of its President is among the few Countries. Of recent is South Africa that manifested its intention of refusal to honor the arrest warrant of Sudanese president Omar al-Bashir on charges of genocide during a meeting of the African Union (AU) in Johannesburg, despite a court order barring his departure.

Following the actualization of South Africa withdrawal from the ICC on grounds of biasedness against African nations, Sky FM 107.0 on 13 October 2015 had a talk show that opened the phones line to solicit the diverse views of some Liberians. From meticulous listening, all of the callers though expressed in different ways welcomed the moved or action by South Africa and at the same time called upon the government of Liberia to do likewise.

Without looking at the other side of the coin of Africa decision to withdraw from the ICC that arguably contravenes its quest for good governance and democratization, it can be rationalized from all of the callers that withdrawal from the ICC will mean that it no more has the jurisdiction to investigate incidents of war crime and crime against humanity and prosecute African leaders based upon evidence gathered in Africa. Against this backdrop, this article argued that Africa withdrawal from the International Criminal Court is not a guarantee for escaping indictment that is evidenced based.

Let’s start the argument. To begin with, the ICC exercises it jurisdiction in three ways according to the Rome Statue. The member state in which the crime occurs refers it to the ICC prosecutor; 2) the UN Security Council refers the crime tothe ICC prosecutor; or 3) the ICC prosecutor himself initiates the investigation.

The ICC has jurisdiction over crimes that take place in a member state’s territory or a crime that is committed by a national of a member state in any territory.  If the individual is from a non-member state, the nonmember state may  and surrender that individual. 

In special circumstances, the ICC can have jurisdiction over an individual who does not meet any of the above criteria, and those circumstances involve the relationship between the UN and ICC. The ICC and UN; through research, the ICC is independent from the UN, but the two bodies cooperate.

  More precisely, the UN and the ICC have a Relationship Agreement. Additionally, the UN and the ICC “recognize each other’s mandates and status and agree to cooperate and consult with each other on matters of mutual interest.” Under Chapter VII of the Charter of the United Nations (“UN Charter”), the UN makes determinations of threats to peace on an international level and recommends or decides what measures shall be taken concerning that threat.

In conjunction with the Rome Statute and the Relationship Agreement, the UN Security Council may refer a breach ofinternational peace, in accordance with Chapter VII of the UN Charter, to the ICC. The UN Security Council may refer a situation to the ICC even if it involves a national of a nonmember state.

Given all of the above provisions from which a right thinking person can infer no escape routes, what guarantees indicted African leaders and would be indictees should Africa withdraw from the ICC? Let’s take the case of Sudanese president Omar al-Bashir as a clutch for the argument.

In the first place, Sudan just like the United States of America is not party or member of the ICC.  However, being member of the United Nations still creates the link that justifies the ICC jurisdiction especially where an individual action contravened Chapter VII of the Charter of the United Nations.

This is how it happens to president Bashir. In the case of Darfur, the Security Council referred the situation on 31 March 2005 after the passage of Resolution 1593 to the ICC prosecutor to investigate who bears the greatest responsibilities. It was from this investigation president Omar al-Bashir as an individual without regard for his status was indicted despite Sudan is not party to the Rome Statue the created the ICC. Neither did Sudan as non-member state agree to the jurisdiction of the ICC.

In this kind of situation, the consent or will and pleasure of the non-member state is of no relevance to the ICC. Surprisingly, Benin and Tanzania were among the eleven countries that voted in favor of the Resolution 1593. The United States of America abstained.

It can be argued that the UN Security Council decision to refer a case to the ICC is politically driven by the vested interest of member states. This in other words implies that given the influence of the United States as permanent member of the Security Council that also influence global politics, ponder about the possibility of initiating a resolution that will influence the decision of the Security Council to refer to the ICC prosecutor to investigation violation involving the United States often alleged by some African leaders.

If Africa is looking for escape route, withdrawal from the ICC is an illusion for indictees and would be indictees.  The only escape route which is impractically impossible, is withdrawal from the United Nations. Since this cannot happen, the best escape route is for our leaders to respect the fundamental rights of its citizens and govern well.

About the Author

Mr. Ambrues M. Nebo holds MSc in the top 5 % of the graduating Class in Peace and Conflict studies with specialty in Humanitarian and Refugee Studies form University of Ibadan, Nigeria, Post Graduate Certificate with distinction in Public Administration from Ghana Institute of Management and Public Administration Ghana, BA Hon (Magna Cum Laude) in Sociology from African Methodist Episcopal Zion University College  in Liberia and various International Certificates in Security and peacekeeping operations from the Kofi Anna International Peacekeeping Training Centre in Ghana. Besides this article, he has authored a dozen of articles dealing with contemporary issues in Africa and Liberia in which some of his articles (Stop Pointing Fingers at the West for Political Problems in Africa, Is Prolonged Regime, a Recipe for Potential Problems in Africa? and Instead of the International Criminal Court, blame our Leaders, The Dark side of Majority Rule In Africa, The Culture of Silence; an unguaranteed grip for prolonged regime in Africa ) can be accessed online at google search and also www.academia.edu.org By Ambrues M. Nebo